The Political Economy of Application Fees for Indigent Criminal Defense

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. …