The political economy of application fees for indigent criminal defense.

• Author: Wright, Ronald F.

TABLE OF CONTENTS INTRODUCTION I. THE SPREAD OF INDIGENT DEFENSE FEE LAWS A. Extent and Variety of Application Fees B. The Application Fee Trend II. POLITICAL ORIGINS OF APPLICATION FEE STATUTES A. The Defense Establishment and Application Fees B. Debate Themes C. Political Theory and Internal Defense-Side Politics III. JUDICIAL RESPONSES IV. FEES AND WAIVER RATES CONCLUSION INTRODUCTION

State and local governments spend serious money every year to hire lawyers for criminal defendants who cannot otherwise afford their own attorneys. Like all the other big-ticket items in a public budget, this one is revealing. Funding for this politically unpopular yet necessary government service must go through the legislative appropriations process, year in and year out, producing an instructive case study in crime politics.

Legislators who draft the criminal justice portions of the state budget routinely express the hope that the government can control the expense of indigent criminal defense. One method of doing so involves recovering part of the attorneys' fees from the defendants themselves. Some defendants, although they may qualify for appointed counsel under the state's standards for indigency, still have the financial means to pay for part of their defense, or will be in a position to do so in the future, allowing the state to recoup some of its expenses after the case ends.

But these traditional "recoupment" statutes require a great deal of judicial effort to sort the truly indigent from those with more resources, and considerable administrative effort to track defendants over time and collect the monies piecemeal. The disappointing revenues collected under recoupment statutes have led many states, since the early 1990s, to experiment with a different cost-control technique: statutes that instruct courts to assess up-front "application fees," typically in the range of $25 to $100. (1) The fees are charged automatically to criminal defendants, who, despite their demonstrated poverty, are expected to "pay as they go," often without regard for the outcome of their case. The fees, imposed on the front end of the criminal prosecution process, do not create the same administrative burdens as the more income-sensitive "recoupment" procedures, yet they enjoy many of the same policy and political benefits. As we explain in Part I, they have now spread to over half the states.

These application fee statutes follow a typical route through the legislative process. Part II portrays this process as an internal struggle among defense lawyers, in particular between the leadership and the rank-and-file attorneys who work in organizations that provide legal services to indigent criminal defendants. Instead of the archetypal political debate between prosecution and defense-oriented advocates, this debate plays out within the ranks of defense providers, in the process revealing differences in priorities and professional self-images, and ultimately, varied notions of what best serves the interests of indigent defendants.

Counterintuitively, it is defense organizations themselves that olden initiate the idea of application fees, generally during a time of budgetary stress for a defender program. The high-level administrators who deal with budgets and negotiate with legislators tend to favor the fees from an institutional perspective. The application fees not only hold the promise of increasing revenue, but also to secure legislative goodwill by showing a willingness to contain costs and possibly impose a measure of personal responsibility among the client base. From the vantage point of the leadership, operating a program within harsh budgetary and political limits, the choice to endorse application fees is a natural one, and the endorsement of the concept might be more important for their purposes than the actual collection of fees. As for the effects of fees on prospective clients, defense organization leaders tend to downplay--without any direct empirical support--the burden on their impecunious clients.

Resistance to fees inevitably comes from lower in the defense ranks, from attorneys who represent indigents and view matters from an individual client perspective rather than an institutional vantage point. Perceiving themselves to be at the ramparts of the hallowed ideals of Gideon v. Wainwright, (2) they stand for uncompromised principles of government responsibility to the criminally prosecuted poor and rely on supposition and anecdotal evidence to assert that the fees, while comparatively small, will chill many defendants' willingness to request a lawyer.

These objections from the field operators of the defense organizations, however, usually give way to budgetary and political imperatives. The defense establishment, like other bureaucracies, takes its policy direction from the top. Faced with the right combination of budgetary and political woes, a defense organization will bow to necessity (as seen by its leaders) and adopt a policy to collect application fees.

Part III tracks the fate of application fee laws after the formal policy takes effect. This is the juncture where rank-and-file defense actors, quelled in the legislative debates, push back. In individual cases and strategic test cases alike, publicly appointed defense counsel file legal challenges. In ruling on these challenges, courts offer their own reactions to the application fee statutes: in two instances to date, state supreme courts have invalidated the laws on constitutional grounds. (3)

An equally important judicial reaction, however, occurs at the trial level. Trial judges draft rules and establish courtroom routines that determine the real impact of the application fee statutes. In conjunction with rank-and-file defense attorneys who see the issue more from the vantage point of individual defendants, judges in local courtrooms enjoy the capacity to create broad de facto limits on the reach of the fee statutes. Although the upper-tier defense advocates align themselves with legislators (and prosecutors), the lower-tier defense advocates find their allies among the ranks of trial judges.

The defendant's waiver decision plays a starring role in all these debates and reactions to the application fee laws. Both the legislative debates and the judicial responses to fee laws are based on speculative assertions about the waiver decisions of defendants. Yet in the application fee context, and particularly when it comes to misdemeanors (which make up the vast majority of criminal charges), surprisingly little is known about waiver of counsel, including such basic facts as the number of criminal defendants who waive their legal right to appointed counsel and why they do so.

Powerful reasons exist to believe that an application fee could seriously affect a defendant's waiver decision, starting with anecdotal evidence from attorneys and judges who report increases in waivers after the application fee statutes take effect. Careful studies of the effects of "co-pay" systems in other settings, such as medical insurance, also suggest that the effect on waiver of counsel could be significant. Nevertheless, in Part IV we assemble data to suggest that application fee laws have only muted effects on waiver decisions. By tracking the level of counsel waiver in recent years in two jurisdictions that passed application fee statutes, we find little or no evidence that the fees increased the number of waivers during the target period.

Perhaps the administrators of indigent defense organizations who support the application fees are correct: defendants do not consider the fees to be large enough to affect their waiver decisions. We believe a better explanation, however, builds on the power of trial actors to neutralize the effects of any new criminal justice policy, at least in the short run. Application fee statutes matter far less in practice than the political debate might indicate because the trial-level actors remain unsympathetic to them and implement them in ways that blunt their effects. Their power to refract the effects of such policies is especially strong in the high-volume world of misdemeanor courts. In this context, as in so many others in criminal justice, having the last word can matter the most.

1. THE SPREAD OF INDIGENT DEFENSE FEE LAWS

   The right of indigents to have government-funded counsel dates back to Gideon v. Wainwright (4) (for felonies) and before that to Powell v. Alabama (5) (for capital crimes). In both decisions, the Supreme Court concluded that the Sixth Amendment, although it does not require the government to sponsor defense attorneys in all prosecutions, (6) compels the states in serious criminal cases to provide attorneys for defendants too poor to pay. (7) Subsequently, the Court expanded the right to include defendants accused of any criminal offense if conviction could "end up in the actual deprivation of a person's liberty." (8)

   This affirmative constitutional obligation, unlike others such as the warnings that the police must provide criminal suspects under Miranda v. Arizona, (9) sends powerful annual shock waves through state budgets. (10) As the Supreme Court has expanded the right over time, and states themselves have made appointed counsel more available, (11) the fiscal impact of appointed counsel has increased. (12) Currently, 82% of felony defendants in large states utilize publicly funded counsel; (13) and while the Supreme Court has acknowledged the associated costs, (14) federal money has never arrived to fully fund the federal constitutional mandate. (15) As a result, state and local governments foot the bill mostly by themselves, (16) annually spending millions to fulfill their constitutional obligation to fund indigent defense. (17)

   In the 1990s, the combination of budgetary shortfalls and constitutional challenges to underfunded indigent defense systems that threatened even larger future expenses (18) forced state...