In the United States, individuals accused of crime who cannot afford a lawyer, and who face a possible sentence of incarceration, are entitled to have counsel appointed at government expense. Yet in most states, the right to appointed counsel does not mean free counsel. The majority of states have laws that seek to extract payment from very poor individuals as they exercise their constitutional right to counsel. To understand the extent of the use of these laws, NLADA conducted statutory research into all 50 states and the District of Columbia into two fees associated with public defense: 1) upfront application/administrative fees and 2) recoupment fees to reimburse the government cost of representation. The main data points tracked in the statutory analysis were:
Map 1: Whether statute authorizes the assessment of an upfront application or administrative fee;
Map 2: Whether statute authorizes the assessment of a cost of counsel reimbursement fee (also called recoupment);
Map 3: Whether statute makes payment of these fees a condition of probation;
Map 4: Who determines whether a person qualifies for appointed counsel; and
Map 5: Whether revenue from these fees supports the public defense system.
This research examined fees assessed in the adult criminal legal system. Detailed explanations for why these data points were chosen are outlined in our national report on public defense system fees, At What Cost? Findings from an Examination into the Imposition of Public Defense System Fees. The report also contains much more information on practices surrounding imposition of these fees and their consequences. Generally, NLADA found that across the country there is widespread authorization for the imposition of these fees. California, Hawaii, Mississippi, Nebraska, New York, Rhode Island, and Pennsylvania are the only states that do not have statutes that allow for any public defense system fees to be assessed onto defendants who have been deemed too poor to pay for counsel.