42 states and the District of Columbia have a law authorizing the assessment of fees for the cost of the legal counsel.
In the United States, there is a constitutional right to counsel for defendants who cannot afford a private attorney when facing a charge where, if convicted, they may lose their liberty. However, many states authorize fees at the outset of the case to cover administrative court costs or at disposition to recoup the cost of appointed counsel, and some authorize both. This in-depth investigative report presents findings from a 50-state analysis of state laws and practices relating to fees assessed against individuals that exercise their right to counsel. It also includes a deep dive of four states’ models for assessing public defense system fees and recommendations for reform.
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Key Findings:
- 42 states, plus the District of Columbia, have statutory cost of counsel fee/recoupment fees
- 18 states have statutory upfront application public defense system fees; application/appointment fees range from $10 to $400.
- 17 states have statutes authorizing both application/appointment fees and recoupment fees.
- None of the states with data collection of public defense recoupment fees collect more than five percent of assessed costs.
- Like other court fees, unpaid public defense counsel fees can lead to civil and criminal consequences such as creditworthiness, ability to drive legally, eligibility for certain types of employment, and prolonged involvement in the criminal legal system.
- 30 states have statutes allowing for unpaid fees to become a condition of probation.
Recommendations:
- Eliminate both upfront and recoupment fees in Public Defense Systems.
- Implement uniform data collection and reporting requirements for all public defense system fees assessed.
- General fund appropriations must accompany any elimination of fees for public defense to replace any loss of revenue.