Academic journal article Iowa Law Review

Paying for Gideon

Academic journal article Iowa Law Review

Paying for Gideon

Article excerpt


To protect the "noble ideal" that "every defendant stands equal before the law," Gideon v. Wainwright guaranteed the right to defense counsel for those who cannot afford it.1 Gideon's concept is elegantly simple: if you are too poor to pay for counsel, the government will provide. The much more complicated reality, however, is that since Gideon, courts have assigned counsel to millions of American defendants too poor to pay for an attorney, and later required those defendants to pay for their counsels' services.

Because schemes for recouping the costs of providing counsel from indigent defendants operate behind the scenes, I begin this Essay by pulling back the curtain to provide an overview of what the attempts to extract indigent defense fees and costs from the poor look like.2 I describe how, in many jurisdictions, consideration of whether one has the ability to pay for counsel is essentially meaningless, whereas in other jurisdictions, courts are required to impose recoupment without any such consideration at all. Once assessed, recoupment debt carries with it potentially debilitating collateral consequences-limitations on employment, housing, and public benefits- that effectively render one's capacity to pay recoupment debt even less likely. Where one cannot pay, either because of poverty at the time of imposition or by being pushed there as the result of collateral consequences, states and local governments often resort to arrest, probation revocation, and incarceration.

I turn next to the question of how we moved from Gideon's guarantee that counsel would be furnished to anyone too poor to afford one, to a system where the poor are forced to pay for counsel and then punished for being unable to do so. I assert that Gideon's protection against recoupment for those with no ability to pay has remained hidden in plain sight due to misinterpretations in two lines of cases. The first line involves a series of cases in which the Supreme Court held that the Due Process and Equal Protection Clauses of the Fourteenth Amendment required the waiver of financial barriers to accessing the courts (e.g., appellate filing fees). The second line involves the misapplication of the Fifth Amendment's collateral consequences doctrine to the Sixth Amendment's effective assistance of counsel jurisprudence, leading to a misunderstanding that to be constitutionally effective, counsel need not advise a client about collateral consequences.

The intersection of these two lines of cases has obscured the unconstitutional nature of today's recoupment schemes, pushing Gideon out of the picture. Attempts by advocates, academics, and the courts to continue squeezing recoupment into a due process/equal protection/effective assistance of counsel framework misses the fact that today's version of recoupment-with collateral consequences in tow-is itself a Gideon problem.3

I end the Essay with a call for defense counsel to bring that problem to light by uncovering how today's recoupment schemes, particularly as they collide with collateral consequences, violate not just the spirit but the letter of Gideon.


Today, countless4 people living in poverty are assessed indigent defense fees and related costs.5 Despite having no meaningful ability to pay, people become enmeshed in a system that makes it nearly impossible to pay, and then punished-in ways both nonsensical and extreme-for their inability to pay.

These problems begin with the imposition of indigent defense costs, which may occur before appointment of counsel or at the point of sentencing. Several varieties of recoupment exist, ranging from application fees assessed at the initiation of the criminal process, to flat-fee charges for defense costs, to assessments directly tied to the actual expenses incurred at trial.6 In some jurisdictions, courts have the option to waive these various charges, in others, the imposition is mandated by statute. …

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