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Pay per plea: public defenders come at a price.

Five women sit around a table in a stark, cement-walled holding room at the Rock County Jail in Janesville, Wisconsin. The women, recently arrested and dressed in jailhouse orange, talk with a paralegal, who is evaluating their eligibility for public defense.

One of the women receives welfare benefits. Two have no means of support. One works part-time and pulls in only $30 a week. Another sells her plasma. All of them qualify for public defense. And all of them will have to pay for it.

Paralegal Amy Kelber explains to them that Wisconsin started a new program in August 1995 requiring poor people to pay for their public representation. Defense costs $200 for a misdemeanor, Kelber tells the women, and $400 for a felony-unless the defendant pays $50 within thirty days. Kelber emphasizes that even if they never pay, the women will still get a lawyer, but their accounts will be turned over to a collection agency

At the end of the interview, Kelber gives each woman an envelope for her nonrefundable payment.

"Will I pay in the next thirty days? No," says Laureanette Ingram, twenty-nine, who has been living with her brother and has no job. "I can't. I got to find something to eat with. I got to put shoes on my feet."

Wisconsin is one of a growing number of states, including Kansas and Virginia, that now charge indigent defendants for public representation. Many states charge those seeking a public defender an evaluation fee ranging from $10 to $100. Last fall, California passed a law allowing its counties to charge $25. On January 1, 1997, Florida will implement a $40 fee.

Colorado, Connecticut, Massachusetts, New Jersey, New Mexico, and South Carolina have all implemented fees in the last several years.

None of these states deny representation to those who can't pay. Even so, public-defender fees represent a small but significant erosion of the Sixth-Amendment right to legal counsel. The fees could drive away potential public-defender clients. And, as public-defender offices begin to rely on their indigent clients for funding they are likely to encounter major cashflow problems.

Justice Hugo Black wrote in the unanimous 1963 Gideon Supreme Court decision that "any person haled into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him."

More than thirty years later, some state legislatures are asking public-defender offices to fudge on that assurance.

Waring Fincke argued in a March 1996 Wisconsin Lawyer article that imposing payment of fees on those who aren't convicted may be unconstitutional.

"The public-defender office was assailed by rightwingers in the Legislature who fail to see a need for state public defenders in the first place," he says. Fincke is a board member of the Wisconsin Association of Criminal Defense Lawyers and former staff lawyer for the public defender. "They see money going to the public-defender office and wonder, 'Why spend so much money on criminals?' they make the leap that if you are accused, you have to be guilty. In a budget crunch, that makes the public-defender budget ripe for the picking."

Facing shrinking budgets, some public-defender offices have embraced the idea of raising a few dollars from their clients.

"Lack of revenue prompted our support of the fee," says J. Marion Moorman, one of twenty elected public defenders in Florida. "Funding wasn't keeping pace with growth in caseload."

But charging the indigent hasn't been fruitful. The Wisconsin Public Defender's September 1996 Budget Forecasting Report showed that the agency had sent $12.7 million in accounts to collections, and recouped only $38,800.

The negligible financial return is only the mildest of the program's problems. In fact, the new program amounts to a hidden budget cut for the Wisconsin Public Defender. The office predicts it will bring in only about $2.5 million of the $7.5 million the state says it ought to collect from defendants over the next two years.

Wisconsin is the only state that charges poor defendants for representation no matter what the outcome of their cases. Convicted and acquitted alike must pay. If indigent defendants don't shell out $50 up front, they must pay a steeper price later. And if they don't pay later, State Collection Service, Inc., a firm contracted by the state of Wisconsin, will go after them.

It's hard to tell how many people are warded off by the fee. The state public defender doesn't keep a count of who declines representation because of the payment requirement. The best count the office offers is in its monthly Budget Forecasting Report, which includes reports from around Wisconsin of defendants who have turned down a public defender because of cost.

Paralegal Amy Kelber sees about forty defendants a week, and of those, she estimates two decline public representation and plead no contest.

"Most turndowns are in person, but some people with prior experience shy away from applying [for public defense]," says Michael Tobin, director of the Wisconsin Public Defender trial division. "We don't turn anyone away because they can't pay. If they are turning us down, it's because they found out they would have to pay in the future."

Defendants who wind up without representation find themselves in courtrooms alone and confused. "All of the criminal judges are seeing an increase in defendants without an attorney," says Stuart A. Schwartz, a Dane County, Wisconsin, circuit-court judge. "Most are intimidated by the process. When I ask them questions, they don't know what to say.... Some defendants don't appreciate the seriousness of the crime. They think that if they come into court. they ll just be able to talk to someone.

People who qualify for public-defender representation are, by definition, very poor. and throughout the nation indigency standards are getting stricter.

According to new standards in Florida, a person's income must be below the federal poverty level to be considered indigent. For a single person, that's $7,740 per year, and for a family of four, $15,600 per year.

In Wisconsin, the indigency standard is complicated, but the state calculates cost-of-living for a single person to be $1,488 over six months. That's $62 a week. A single person accused of a felony who doesn't have expenses beyond this amount (such as child-support payments or health insurance) could earn as little as $2,938 over six months and be ineligible for public defense. Judges can appoint counsel at county expense for those who are very poor yet not deemed indigent, but, because of the effect on county budgets, they tend to do so only for those accused of serious felonies.

These standards keep more people out of the public-defender's office than the new fees. "More people don't receive public defense because of indigency standards themselves than because of the collections policy implemented in 1995," says Tobin.

But both policies--fee collection and miserly definitions of poverty--are part of the same trend toward recouping defense costs from the poor who use public representation. Behind this trend are a number of factors, including shrinking state budgets, a desire to appear tough on crime, and, more fundamentally, contempt for the poor.

"It's an expression of society's dislike for indigent defendants and a desire to squeeze everything possible out of them. It's an expression of frustration--not an expectation of getting money," says Ira Mickenberg, a training coordinator for the Washington, D.C., public defender.

Mickenberg knows Wisconsin's system well. In October 1995 he was training director for the Wisconsin Public Defender, but left because he didn't like the direction the agency was taking.

There is, in general, political animosity toward poor people who are receiving any government benefits," Mickenberg says.

Peter Erlinder, president of the National Lawyers Guild, takes it further. He calls imposing fees on indigent defendants another salvo in generalized class warfare.

"The majority of people who get arrested for criminal acts are people who have little or no resources," says Erlinder, a constitutional-law professor at William Mitchell College of Law in St. Paul, Minnesota. "It's a piece of a class attack. There is a racial dimension as well. In a state like Minnesota, for example, an African-American working-class male is twenty-three times more likely to be in prison than a white working-class male. In California, 40 percent of the African-American population is in the criminal-prosecution system or involved in some fashion--on probation, in jail, in prison."

According to the most recent U.S. Bureau of Justice Statistics figures, compiled in a 1992 report called "Justice Expenditure and Employment," the government spent $5.5 million on prosecution and related legal costs in 1990, while public defenders spent only about $1.7 million.

The Bureau's 1996 report "Indigent Defense" says that 80 percent of those charged with felonies in the nation's seventy-five largest counties relied on a public defender or on assigned counsel for legal representation.

Erlinder thinks the disadvantage is greater. "Even though government must bear the cost of all prosecutions, it's also true that somewhere in the range of 90 percent of all defendants have to rely on government-supplied attorneys, and yet funding for criminal-defense systems across the country is far less than 90 percent of prosecution," he says.

That's where public-defender application fees and cost-recoupment measures such as Wisconsin's come in. The idea is, if public defenders can't get enough funding from their state, they'll get it from squeezing the poor people who seek representation.

"The worst thing about it is not the immediate financial consequences, but the enormous amount of resources that could be better used in actually defending people," Mickenberg says. "Public defenders are required to set up a bureaucracy to screen people, evaluate whether they qualify [for court-appointed counsel], and enforce collections-all resources that could be used to defend people. Public defenders are frequently strapped for cash, and courts are crowded as it is."

Judge Schwartz fears the consequences. "Unrealistic fiscal guidelines do not lend themselves to the smooth administration of justice," he says.

The real problem is underfunding of public defense, says Robert Burke, a staff attorney for the National Legal Aid and Defender Association. He's concerned that states are using these new fees to avoid fully funding public-defender offices. "If fees are used to replace other funding," he reckons, "that's a mistake."

Given Wisconsin's low rate of collection, these fees won't solve anything.

"Nobody with any brains at all has any real expectation of collecting a significant amount of money," Mickenberg chides. "They know they'll never really be able to collect the 400 bucks. It's a way for politicians to go to the public and say, 'We're being tough on crime.' It's smoke and mirrors and cheap politics--a way for politicians to trick the public into thinking they're doing something when they don't have a clue."

But fees aren't likely to go away "The people who are affected--the accused or convicted--don't have a constituency besides the public defenders who represent them, who lack the funding to do so effectively," Burke concludes. "There's no one to stand up for them."

Erin Middlewood is the Associate Editor of the Progressive Media Project.
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Title Annotation:trend toward fees for public-defender representation
Author:Middlewood, Erin
Publication:The Progressive
Article Type:Cover Story
Date:Jan 1, 1997
Words:1846
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