# Are Guilty Defendants Entitled To A Public Defender? **URL:** \ **Category:** Great Debates\ **Created:** [April 1, 2003, 11:57pm UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833 "2003-04-01T23:57:17Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [April 1, 2003, 11:57pm UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/1 "2003-04-01T23:57:17Z")
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. ---
**Author:** ![guy\_from\_wpa](https://avatars.discourse-cdn.com/v4/letter/g/5e9695/32.png) [@guy\_from\_wpa](https://boards.straightdope.com/u/guy_from_wpa)\ **Post date:** [April 2, 2003, 12:01am UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/2 "2003-04-02T00:01:59Z")
IANAL, but this sounds like a lawsuit to me. ---
**Author:** ![j.c](https://avatars.discourse-cdn.com/v4/letter/j/73ab20/32.png) [@j.c](https://boards.straightdope.com/u/j.c)\ **Post date:** [April 2, 2003, 12:11am UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/3 "2003-04-02T00:11:34Z")
WTF? Can we please have a site? This is just so wrong. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [April 2, 2003, 12:35am UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/4 "2003-04-02T00:35:41Z")
> [@](#): > > \*Originally posted by j.c. \* > \*\*WTF? > > Can we please have a site? This is just so wrong. \*\* [2002 Alaska Statutes](http://old-www.legis.state.ak.us/cgi-bin/folioisa.dll/stattx02/query=!22public+defender!22/doc/%7B@7996%7D?) > [@](#): > > © **Upon the person’s conviction, the court may enter a judgment that a person for whom counsel is appointed pay for services of representation and court costs.** Enforcement of a judgment under this subsection may be stayed by the trial court or the appellate court during the pendency of an appeal of the person’s conviction. Upon a showing of financial hardship, the court (1) shall allow a person subject to a judgment entered under this subsection to make payments under a payment schedule; (2) shall allow a person subject to a judgment entered under this subsection to petition the court at any time for remission, reduction, or deferral of the unpaid portion of the judgment; and (3) may remit or reduce the balance owing on the judgment or change the method of payment if the payment would impose manifest hardship on the person or the person’s immediate family. Payments made under this subsection shall be paid into the state general fund. The assessment of court costs may be set aside if the defendant pursues an appeal, but it is at the discretion of the court. Should it be? ---
**Author:** ![peepthis](https://avatars.discourse-cdn.com/v4/letter/p/9d8465/32.png) [@peepthis](https://boards.straightdope.com/u/peepthis)\ **Post date:** [April 2, 2003, 12:42am UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/5 "2003-04-02T00:42:45Z")
> [@](#): > > \*Originally posted by Fear Itself \* > \*\*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?\*\* I don’t think Miranda has much to do with it, nearly as much as Gideon v. Wainwright. I’d be curious to find out if this holds water constitutionally. ---
**Author:** ![John\_Kentzel-Griffin](https://avatars.discourse-cdn.com/v4/letter/j/ccd318/32.png) [@John\_Kentzel-Griffin](https://boards.straightdope.com/u/John_Kentzel-Griffin)\ **Post date:** [April 2, 2003, 12:56am UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/6 "2003-04-02T00:56:25Z")
This question does not call for a factual answer. It’s more of a Great Debate. Off to Great Debates. **DrMatrix** - General Questions Moderator ---
**Author:** ![ElJeffe](https://avatars.discourse-cdn.com/v4/letter/e/958977/32.png) [@ElJeffe](https://boards.straightdope.com/u/ElJeffe)\ **Post date:** [April 2, 2003, 1:03am UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/7 "2003-04-02T01:03:49Z")
I don’t know if this is a widespread thing, though I’ve never heard of it before. I _do_ know, however, that it blows, and it certainly sounds unconstitutional to me. Jeff ---
**Author:** ![Creative\_Munster](https://avatars.discourse-cdn.com/v4/letter/c/919ad9/32.png) [@Creative\_Munster](https://boards.straightdope.com/u/Creative_Munster)\ **Post date:** [April 2, 2003, 1:20am UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/8 "2003-04-02T01:20:36Z")
Public Defenders are notorious for doing a poor ass job anyway. Having to pay for them for their subpar performance after you are sent to prison is a bunch of crap. And yes, I am generalizing about Public Defenders. I’m sure there are exceptions. ---
**Author:** ![Frostillicus](https://avatars.discourse-cdn.com/v4/letter/f/e9bcb4/32.png) [@Frostillicus](https://boards.straightdope.com/u/Frostillicus)\ **Post date:** [April 2, 2003, 1:20am UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/9 "2003-04-02T01:20:45Z")
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.😃 ---
**Author:** ![MaddyStrut](https://avatars.discourse-cdn.com/v4/letter/m/dbc845/32.png) [@MaddyStrut](https://boards.straightdope.com/u/MaddyStrut)\ **Post date:** [April 2, 2003, 1:20am UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/10 "2003-04-02T01:20:47Z")
If the defendant is found not guilty, does the state pay the attorney? I’m just wondering because it sounds like a big disincentive for a lawyer to win if that means he/she won’t get paid! ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [April 2, 2003, 1:40am UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/11 "2003-04-02T01:40:39Z")
It’s punishing the defendent for excersizing his constitutional rights to free counsel if he is too poor to pay for one, by billing him for something he can’t pay for. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [April 2, 2003, 1:45am UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/12 "2003-04-02T01:45:53Z")
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. ---
**Author:** ![Monty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/monty/32/47_2.png) [@Monty](https://boards.straightdope.com/u/Monty)\ **Post date:** [April 2, 2003, 1:46am UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/13 "2003-04-02T01:46:06Z")
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. ---
**Author:** ![Punoqllads](https://avatars.discourse-cdn.com/v4/letter/p/d2c977/32.png) [@Punoqllads](https://boards.straightdope.com/u/Punoqllads)\ **Post date:** [April 2, 2003, 2:00am UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/14 "2003-04-02T02:00:09Z")
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. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 2, 2003, 2:00am UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/15 "2003-04-02T02:00:33Z")
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: > [@](#): > > Gideon, however, did not address the subject of whether states could attempt to recover from indigent defendants some of the costs of providing counsel to them. Currently, all states and the federal government have some type of cost recoupment system. 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: > [@](#): > > [Fuller] asserts that a defendant’s knowledge that he may remain under an obligation to repay the expenses incurred in providing him legal representation might impel him to decline the services of an appointed attorney and thus “chill” his constitutional right to counsel. This view was articulated by the Supreme Court of California, in a case invalidating California’s recoupment legislation, in the following terms: > “[W]e believe that as knowledge of [the recoupment] practice has grown and continues to grow many indigent defendants will come to realize that the judge’s offer to supply counsel is not the gratuitous offer of assistance that it might appear to be; that, in the event the case results in a grant of probation, one of the conditions might well be the reimbursement of the county for the expense involved. This knowledge is quite likely to deter or discourage many defendants from accepting the offer of counsel despite the gravity of the need for such representation as emphasized by the [Supreme] [C]ourt in Gideon…” > We have concluded that this reasoning is wide of the constitutional mark. SCOTUS rejected the rationale of the California Court and went on to say > [@](#): > > the Court observed that the burden of paying for counsel is in no sense unique to the indigent: > We live in a society where the distribution of legal assistance, like the distribution of all goods and services, is generally regulated by the dynamics of private enterprise. A defendant in a criminal case who is just above the line separating the indigent from the nonindigent must borrow money, sell off his meager assets, or call upon his family or friends in order to hire a lawyer. We cannot say that the Constitution requires that those only slightly poorer must remain forever immune from any obligation to shoulder the expenses of their legal defenses, even when they are able to pay without hardship. The Alaska Court drew some general rules from the SCOTUS cases: > [@](#): > > With this in mind, we conclude that James and Fuller together stand for the following propositions: Recoupment systems in > which the means of collecting defense costs are significantly more onerous and less protective of debtors’interests than those available for the collection of private debts are generally invalid. However, systems containing the significantly more onerous power to condition freedom from incarceration on payment of recoupment are not invalid so long as they contain safeguards designed to ensure that only those who will be able to pay are required to pay. Finally, the general “chilling” argument–that requiring repayment of defense costs is per se unconstitutional because it may deter some indigents from accepting the services of counsel–has been rejected. 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: > [@](#): > > Judgments under the rule are civil judgments subject to the same laws and rules which govern other civil judgments. They do not have any sentencing or correctional consequences. The judgments are low compared to the actual cost of legal services; the exemption act and the remission power under the rule prevent collection in hardship cases. An advance determination of a defendant’s ability to pay is not required. Although it is to be expected that some defendants will refuse the services of appointed counsel rather than incur a Criminal Rule 39 judgment, that is an economic choice similar to the choice made by a nonindigent who decides to forego counsel for economic reasons. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 2, 2003, 2:06am UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/16 "2003-04-02T02:06:19Z")
> [@](#): > > \*Originally posted by MaddyStrut \* > \*\*If the defendant is found not guilty, does the state pay the attorney? > > I’m just wondering because it sounds like a big disincentive for a lawyer to win if that means he/she won’t get paid! \*\* 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. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [April 2, 2003, 2:36am UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/17 "2003-04-02T02:36:47Z")
> [@](#): > > \*Originally posted by Hamlet \* > \*\*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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 2, 2003, 3:14am UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/18 "2003-04-02T03:14:53Z")
> [@](#): > > \*Originally posted by Creative\_Munster \* > Public Defenders are notorious for doing a poor ass job anyway. Having to pay for them for their subpar performance after you are sent to prison is a bunch of crap. Good thing there are none of that ilk here, eh? ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [April 2, 2003, 3:22am UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/19 "2003-04-02T03:22:00Z")
> [@](#): > > \*Originally posted by Fear Itself \* > \*\*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.] ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [April 2, 2003, 3:33am UTC](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833/20 "2003-04-02T03:33:06Z")
> [@](#): > > \*Originally posted by Huerta88 \* > **If you want to argue from first principles or public policy or morals, that’s a different matter.** OK, if you want it in legal terms, then let me paraphrase one of the great legal minds of our time: **"They just plain sucked. I’ve seen [courts] suck before, but they were the suckiest bunch of sucks that ever did suck."**_~~Hizzoner Homer J. Simpson_ 😃 [Next page](https://boards.straightdope.com/t/are-guilty-defendants-entitled-to-a-public-defender/165833.md?page=2)