If You Cannot Afford an Attorney, Will One Be Appointed for You?: How (Some) States Force Criminal Defendants To Choose Between Posting Bond and Getting a Court-Appointed Attorney

Author:Allison D. Kuhns
Position:J.D., The University of Iowa College of Law, 2012
Pages:1787-1810
SUMMARY

In Gideon v. Wainwright, the United States Supreme Court held that the Sixth Amendment right to counsel included a right to state-provided counsel for indigent defendants. The Court did not, however, define what "indigent" means. As a result, states have adopted varying definitions, many of them factoring in a defendant’s ability to post bond. The inclusion of the defendant’s ability to post bond ... (see full summary)

 
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1787
If You Cannot Afford an Attorney, Will
One Be Appointed for You?: How (Some)
States Force Criminal Defendants To
Choose Between Posting Bond and
Getting a Court-Appointed Attorney
Allison D. Kuhns
ABSTRACT: In Gideon v. Wainwright, the United States Supreme Court held that
the Sixth Amendment right to counsel included a right to state-provided counsel for
indigent defendants. The Court did not, however, define what “indigent” means. As a
result, states have adopted varying definitions, many of them factoring in a
defendant’s ability to post bond. The inclusion of the defendant’s ability to post bond
in the definition of indigent often imposes an impossible choice on defendants: post
bond and lose their court-appointed attorneys or stay in jail and keep their attorneys.
Not only does the application of this standard vary from state to state, it is often
applied differently within the same state. Ideally, states should revise indigency statutes
to remove the ability to post bond as a factor in determining indigency status. Short of
removal, however, states can take three steps to ensure that a defendant’s choice to stay
out of jail does not disqualify him from keeping a court-appointed attorney, namely
revising rebuttable-presumption statutes, excluding bond payments made by persons
other than the individual defendant, and establishing statewide indigent-defender
commissions charged with making indigency determinations.
I. INTRODUCTION .................................................................................... 1789
II. THE EVOLUTION OF THE RIGHT TO COUNSEL AND STATE
RESPONSES TO POWELL, GIDEON, AND ARGERSINGER ............................. 1790
A. HISTORICAL DEVELOPMENT OF THE RIGHT TO COUNSEL .................. 1790
1. English Origins ..................................................................... 1790
2. Early American Rules ........................................................... 1791
J.D., The University of Iowa College of Law, 2012; B.A., University of Chicago, 2008.
Thank you to the editors and student writers of the Iowa Law R eview for their careful and
helpful editing; to my friends for their humor and encouragement; and to family for their
unending love and support.
1788 IOWA LAW REVIEW [Vol. 97:1787
3. Expansion and Right to Appointed Counsel ..................... 1792
4. Current State of the Law ...................................................... 1794
B. STATE RESPONSES TO GIDEON: PROVIDING DEFENSE TO INDIGENT
DEFENDANTS .................................................................................. 1795
1. Indigent-Defense Systems .................................................... 1795
2. Political Realities .................................................................. 1797
C. DEFINING INDIGENCY ...................................................................... 1798
III. POSTING BOND VS. COURT-APPOINTED ATTORNEY ............................. 1799
A. REBUTTABLE-PRESUMPTION STATUTES ........................................... 1800
B. (OSTENSIBLY) NONDETERMINATIVE FACTOR STATUTES .................... 1802
C. STATUTES NOT LISTING BOND AS A FACTOR .................................... 1804
IV. TO BOND OUT OR NOT TO BOND OUT? ............................................. 1805
A. STATES SHOULD NOT USE BOND TO DETERMINE DEFENDANTS
INDIGENCY ..................................................................................... 1805
1. Philosophical Notions of Liberty and Justice ..................... 1805
2. Practical Implications ........................................................... 1807
B. STATES SHOULD MINIMIZE THE UNDESIRABLE EFFECTS OF USING
BOND TO DETERMINE DEFENDANTS INDIGENCY .............................. 1808
1. States Should Revise Rebuttable-Presumption Statutes .... 1808
2. States Should Exclude Bond Payments from Persons
Other than the Defendant ................................................... 1809
3. States Should Create a Centralized Indigent-Defender
Commission .......................................................................... 1809
V. CONCLUSION ....................................................................................... 1810

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