Paying for Gideon

• Author: Beth A. Colgan
• Position: Assistant Professor of Law, UCLA School of Law
• Pages: 1929-1949

Paying for Gideon Beth A. Colgan  INTRODUCTION .................................................................................... 1929 I. RECOUPMENT AND ITS COLLATERAL CONSEQUENCES ......................... 1931 II. G IDEON : HIDING IN PLAIN SIGHT ......................................................... 1939 A. E QUAL P ROTECTION AND D UE P ROCESS C ASES ................................. 1941 B. I NEFFECTIVE A SSISTANCE OF C OUNSEL C ASES ................................... 1946 III. THE CONSTITUTIONALITY OF RECOUPMENT: BRINGING G IDEON TO BEAR..................................................................................................... 1948 INTRODUCTION To protect the “noble ideal” that “every defendant stands equal before the law,” Gideon v. Wainwright guaranteed the right to defense counsel for those who cannot afford it. 1 Gideon ’s concept is elegantly simple: if you are too poor to pay for counsel, the government will provide. The much more complicated reality, however, is that since Gideon , courts have assigned counsel to millions of American defendants too poor to pay for an attorney, and later required those defendants to pay for their counsels’ services. Because schemes for recouping the costs of providing counsel from indigent defendants operate behind the scenes, I begin this Essay by pulling back the curtain to provide an overview of what the attempts to extract indigent defense fees and costs from the poor look like. 2 I describe how, in  Beth A. Colgan is an Assistant Professor of Law, UCLA School of Law. She wishes to thank William Baude, Geoffrey Bickford, Thea Johnson, and Robert Weisberg for their insightful comments on this Essay. 1. Gideon v. Wainwright, 372 U.S. 335, 344 (1963). 2. While in the past few years recoupment has been mentioned in the literature occasionally, in most work there is no discussion of the link between recoupment and collateral consequences. See, e.g. , Susan Herlofsky & Geoffrey Isaacman, Minnesota’s Attempts to Fund Indigent Defense: Demonstrating the Need for a Dedicated Funding Source , 37 WM. MITCHELL L. REV. 559, 572–74 (2011); Wayne D. Holly, Rethinking the Sixth Amendment for the Indigent Criminal Defendant: Do Reimbursement Statutes Support Recognition of a Right to Counsel of Choice for the 1929 1930 IOWA LAW REVIEW [Vol. 99:1929 many jurisdictions, consideration of whether one has the ability to pay for counsel is essentially meaningless, whereas in other jurisdictions, courts are required to impose recoupment without any such consideration at all. Once assessed, recoupment debt carries with it potentially debilitating collateral consequences—limitations on employment, housing, and public benefits— that effectively render one’s capacity to pay recoupment debt even less likely. Where one cannot pay, either because of poverty at the time of imposition or by being pushed there as the result of collateral consequences, states and local governments often resort to arrest, probation revocation, and incarceration. I turn next to the question of how we moved from Gideon ’s guarantee that counsel would be furnished to anyone too poor to afford one, to a system where the poor are forced to pay for counsel and then punished for being unable to do so. I assert that Gideon ’s protection against recoupment for those with no ability to pay has remained hidden in plain sight due to misinterpretations in two lines of cases. The first line involves a series of cases in which the Supreme Court held that the Due Process and Equal Protection Clauses of the Fourteenth Amendment required the waiver of financial barriers to accessing the courts (e.g., appellate filing fees). The second line involves the misapplication of the Fifth Amendment’s collateral consequences doctrine to the Sixth Amendment’s effective assistance of counsel jurisprudence, leading to a misunderstanding that to be Indigent? , 64 BROOK. L. REV. 181, 218–20 (1998); Rinat Kitai, What Remains Necessary Following Alabama v. Shelton to Fulfill the Right of a Criminal Defendant to Counsel at the Expense of the State? , 30 OHIO N.U. L. REV. 35, 55–56 (2004); Ronald F. Wright & Wayne A. Logan, The Political Economy of Application Fees for Indigent Criminal Defense , 47 WM. & MARY L. REV. 2045, 2049–52 (2006); Kate Levine, Note, If You Cannot Afford a Lawyer: Assessing the Constitutionality of Massachusetts’s Reimbursement Statute , 42 HARV. C.R.-C.L. L. REV. 191, 193–94 (2007); Andrea L. Martin, Note, Balancing State Budgets at a Cost to Fairness in Delinquency Proceedings , 88 MINN. L. REV. 1638, 1640–41 (2004); Lola Velázquez-Aguilú, Comment, Not Poor Enough: Why Wisconsin’s System for Providing Indigent Defense Is Failing , 2006 WIS. L. REV. 193, 216–17. Where collateral consequences are referenced, recoupment is typically lumped in with other forms of criminal costs and fees, and as such, the potentially unique aspects of charging for the right to counsel are not explored. See, e.g. , Travis Stearns, Intimately Related to the Criminal Process: Examining the Consequences of a Conviction After Padilla v. Kentucky and State v. Sandoval, 9 SEATTLE J. FOR SOC. JUST. 855, 874–77, 894 (2011) [hereinafter Stearns, Intimately Related ] (asserting the reasoning in Padilla is applicable to a wide variety of collateral consequences); Travis Stearns, Legal Financial Obligations: Fulfilling the Promise of Gideon by Reducing the Burden , 11 SEATTLE J. FOR SOC. JUST. 963, 966–70 (2013) [hereinafter Stearns, Legal Financial Obligations ] (providing advocacy points and policy rationales related to the imposition of defense costs and other criminal debts); T. Ward Frampton, Comment, The Uneven Bulwark: How (and Why) Criminal Jury Trial Rates Vary by State , 100 CALIF. L. REV. 183, 208–09 (2012) (asserting that the imposition of court costs, including recoupment, contribute to a decrease in jury trial rates); Michael L. Vander Giessen, Note, Legislative Reforms for Washington State’s Criminal Monetary Penalties , 47 GONZ. L. REV. 547, 559–60 (2011–2012) (recommending a statute requiring courts to consider collateral consequences in assessing legal financial obligations including recoupment). 2014] PAYING FOR GIDEON 1931 constitutionally effective, counsel need not advise a client about collateral consequences. The intersection of these two lines of cases has obscured the unconstitutional nature of today’s recoupment schemes, pushing Gideon out of the picture. Attempts by advocates, academics, and the courts to continue squeezing recoupment into a due process/equal protection/effective assistance of counsel framework misses the fact that today’s version of recoupment—with collateral consequences in tow—is itself a Gideon problem. 3 I end the Essay with a call for defense counsel to bring that problem to light by uncovering how today’s recoupment schemes, particularly as they collide with collateral consequences, violate not just the spirit but the letter of Gideon . I. RECOUPMENT AND ITS COLLATERAL CONSEQUENCES Today, countless 4 people living in poverty are assessed indigent defense fees and related costs. 5 Despite having no meaningful ability to pay, people become enmeshed in a system that makes it nearly impossible to pay, and then punished—in ways both nonsensical and extreme—for their inability to pay. These problems begin with the imposition of indigent defense costs, which may occur before appointment of counsel or at the point of sentencing. Several varieties of recoupment exist, ranging from application fees assessed at the initiation of the criminal process, to flat-fee charges for defense costs, to assessments directly tied to the actual expenses incurred at trial. 6 In some jurisdictions, courts have the option to waive these various charges, in others, the imposition is mandated by statute. 7 Where imposition 3. See infra note 75. 4. Very few, if any, jurisdictions track data related to recoupment, so determining an exact number of people affected by recoupment is not possible. What is known is that every jurisdiction in the United States has either a statutory or judicially recognized ability to order recoupment. See Richard J. Wilson, Compelling Indigent Defendants to Pay the Cost of Counsel Adds Up to Bad Policy, Bad Law , 3 CRIM. JUST., Fall 1988, at 16. However, a significant percentage of individuals charged with crimes in the United States are too poor to pay for counsel. Cf. Indigent Defense Systems , BUREAU OF JUSTICE STATISTICS, http://www.bjs.gov/index.cfm?ty=tp&tid=28 (last visited May 20, 2014) (reporting that in 1996, 82% of felony defendants in the 75 most populous counties received publicly financed counsel, as did 66% of federal felony defendants). 5. In addition to attorney’s fees, indigent defendants may be charged for the costs of experts, investigators, and other costs related to their defense. See, e.g. , infra notes 36–37. Because such charges are necessary for the right to counsel to be meaningful, I include both fees and costs as relevant to the issues detailed in this Essay, referred to collectively as “indigent defense costs.” 6. See, e.g. , Helen A. Anderson, Penalizing Poverty: Making Criminal Defendants Pay for Their Court-Appointed Counsel Through Recoupment and Contribution , 42 U. MICH. J.L. REFORM 323, 329–34 (2009); Velázquez-Aguilú, supra note 2, at 212–17; Wright & Logan, supra note 2, at 2052–54. 7. See Anderson, supra note 6, at 331–32. 1932 IOWA LAW REVIEW [Vol. 99:1929 is discretionary, courts typically have the ability to consider, and sometimes must consider, the defendant’s ability to pay for indigent defense costs. 8 But even under the best of circumstances—where courts are mandated to consider one’s ability to pay—there is reason to believe that people too poor to pay for counsel are being charged for that service. While some judges must take the determination of one’s ability to pay seriously, given the dire financial circumstances of the vast majority of...