Paying for the Right to Counsel: National Survey Findings on the Practice of Charging Public Defense Fees to Clients

The Sixth Amendment guarantees the right to counsel, and the Supreme Court has held that the Sixth Amendment requires states to provide a lawyer if a defendant cannot afford one. However, individuals in 42 states and the District of Columbia who are indigent are still charged a fee for invoking their 6th Amendment. This study explores the implications of defender fees by surveying public defense attorneys and court leadership across the United States. The findings reveal a significant opposition to defender fees among public defense attorneys, primarily due to the financial burdens these fees place on clients, which can lead to further legal system involvement and exacerbate racial disparities. The study highlights the variability in how defender fees are applied and the challenges in tracking the associated data, emphasizing the need for standardized practices and better training for attorneys to advocate against these fees. It also calls for a data-driven approach to understand the full impact of defender fees and to explore sustainable funding alternatives that do not compromise the quality of public defense. 

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Key Findings:

• 65 percent of public defense attorneys surveyed opposed the use of defender fees, citing the financial burdens these fees place on clients and the collateral consequences, such as increased legal debt and ongoing involvement in the criminal legal system.
• Some attorneys observed clients waiving their right to counsel due to the inability to pay upfront fees.
• The study found that procedural safeguards, such as ability-to-pay determinations, are not consistently applied.
• Less than a third (30 percent) of attorneys reported receiving training on how to advocate for the waiver or reduction of defender fees for their clients.