Here in Alaska, a person who is represented by a public defender and subsequently found guilty of the charges can be presented with a bill for his defense.
Is this a widespread practice?
Doesn’t it nullify Miranda by creating a chilling effect on the accused’s willingness to mount a defense because of the risk of financial consequences?
Doesn’t it ignore the presumption that even guilty people have rights that deserve representation?
If a defendant is found indigent and deserving of a public defender, what is to be gained by trying to collect a fee after conviction?
It seems to me that the sole purpose is to dissuade all defendants from asking for a public defender and risk being saddled with a huge debt to the court, and just plead guilty to a crime they might not have committed, but feel they might be convicted of anyway.
The Sixth Amendment guarantees everyone the right to an attorney in all criminal trials, not the right to a free attorney. Gideon vs. Wainwright (1963) interpreted this to mean that defendants are entitled to a public defender if there is a risk of losing one’s freedom (i.e., going to jail). Since this SC decision has never been overturned, I would conclude that the Alaska statute is unconstitutional. BTW, IANAL, although I occasionally play one in my classroom.
Never heard of this practice before, but the upshot of some quick research is that it ain’t an unconstitutional deprivation of the right to counsel, at least so long as the defendant has the ability to pay without some kind of hardship. Courts split on whether the trial court has to make that determination in advance, or whether it’s sufficient that the defendant has the opportunity to challenge the assessment after the court makes the order.
The Alaska Supreme Court has upheld the practice of recouping defense costs from convicted persons, but only if there are safeguards to prevent economic hardship to the defendant or the defendant’s family. The court reasoned in part that there are no correctional consequences for the convicted person’s failure to pay up; it’s a civil judgment only… State v. Albert, 899 P.2d 103 (Alaska 1995).
Vermont has approved recoupment orders, but only if the trial court first determines that the defendant was capable of repaying the amount within the 60 days provided by the state statute. State v. Morgan, 789 A.2d 928 (Vt. 2001).
Virginia has also approved recoupment, provided the trial court determined that the defendant has the ability to pay and structures payment so as not to cause hardship. Ohree v. Commonwealth, 494 S.E.2d 484 (Va. 1998).
And heck, even the federal courts do it and approve of it. United States v. Hutchings, 757 F.2d 11 (2d Cir. 1985).
Say what you want about the policy decision, but there’s no real way to escape the conclusion that, legally speaking, this is a perfectly constitutional practice so long as the defendant actually has the ability to pay back the costs without hardship.
I believe that particular statute (or, I guess, it’s apparent “rationale”) is overlooking a key thing about our judicial system: the trial is not for determining guilt and that’s the end of it. The trial is also key to determining what the sentence should be.
Now, I guess, if there’s a sliding scale of fees pegged on what the defendant can afford, then that’s another matter entirely–one I would support.
Just another data point: I saw a man being arraigned in North Carolina. The judge told him the same thing: he could have a public defender appointed for him, but if found guilty, he would be required to pay the attorney’s fees.
In State v. Albert, 899 P.2d 103 (1995), the Supreme Court of Alaska upheld this statute as being constitutional.
They started by referring to Gideon, and stating:
They relied heavily on the U.S. Supreme Court case of Fuller v. Oregon, 417 U.S. 40 (1974), which upheld the Oregon recompensation statute. In Fuller, SCOTUS stated:
SCOTUS rejected the rationale of the California Court and went on to say
The Alaska Court drew some general rules from the SCOTUS cases:
The Alaska Supreme Court went on to discuss the minutiae of the statute, and, after a long, tedious opinion, ruled that the statute was constitutional because it contained protections for the indigent defendant. They summed up with this:
The State pays for the public defender regardless of the outcome of the trial. The statute in question is only an attempt for the State and her taxpayers to recover partial payment from the defendant. He is, after all, the one who’s fault it is he needed a lawyer in the first place.
Even the guilty have a right to an attorney, as they have rights which need to be preserved by representation. Threatening indigents with financial burdens if they plead not guilty clearly violates the intent of Gideon. SCOTUS blew it on this one.
If the Constitution itself is silent on this exact issue (and it is), and the S.C.'s penumbral interpretation of the Constitution is the only basis for a subsidized counsel right of “constitutional” dimension (and it is), and if the S.C. later says that this penumbra does not extend to a blanket right of free counsel for all always (and it does), I don’t know exactly how the S.C. can be accused of violating the “intent of Gideon,” i.e. the intent of . . . the S.C.
Sort of like GWB’s ill-fated attempt to lead with the argument that he had to defy the Security Council in order to enforce the manifest will of the Security Council.
If you want to argue from first principles or public policy or morals, that’s a different matter.
[slight hijack]An interesting analog that doesn’t in practice come up too often is the possibility of the state prosecuting a (convicted) criminal defendant for perjury (based on his subsequently-disproven denial of the crime). If the only “denial” for which he was faulted was pleading guilty and then not testifying in his own behalf, I could see that a subsequent perjury prosecution would look like a violation of the self-incrimination privilege. But if (as many do) he put on testimony (by himself or by his proxies) suggesting facts that he should have known were not true (because he knew he actually did it), I don’t know that a perjury conviction is out of order if the (second) jury found beyond reasonable doubt that his denials were affirmatively misleading, though those who like to use “unconstitutional” as a synonym for “I disagree with that policy” would doubtless (and wrongly, I think) blurt out something about double jeopardy. Aggressive prosecutors concerned about the public purse could play this card to discourage baseless defenses.[/s.h.]