pretrial, for longer than the maximum punishment for the crime. Such detentions are not only unnecessary, but also ex- tremely expensive, and the costs accrue directly to taxpayers. The potential prejudicial effects become even more serious when the defendant is considering pleading guilty at first appearance, not simply addressing the issue of bail. Too often, misdemeanor defendants are pushed, for expedience and convenience — for them as well as for the court — to accept a small punishment quickly and resolve the case. 68 Too many defendants plead guilty without understanding whether they had a defense to the charge, the collateral con- sequences of the conviction, the conditions of probation, or the consequences of violating probation, including incar- ceration. 69 It is the role of the defense lawyer to provide this information, a role that the defense lawyer can only fulfill if he or she is present when the critical decisions are being made. Particularly in misdemeanor court, the first appear- ance is that critical time. 2. No application fee should be charged for public defense services. On its face, a non-waivable application fee is anathema to the right to counsel. The Minnesota Supreme Court has held that a “co-payment” required of all public defense clients was unconstitutional because it made no provision for “the indigent or for those for whom such a co-payment would impose a manifest hardship.” 70 Similarly, a New Jersey court reversed a conviction for driving with a suspended li- cense because the trial judge had refused to waive the $50 application fee or consider the defendant’s ability to pay the fee. The court wrote:
appointment of counsel on other charges, there were compelling reasons to care- fully evaluate the defendant’s request for the appointment of counsel. Unfortu- nately, the trial judge’s preoccupation with the payment of the application fee foreclosed the defendant’s opportunity to obtain assigned counsel. 71
Application fees can discourage an accused from seeking court-appointed counsel, particularly where waiver of the fee is unavailable, not understood by the clients, or rarely utilized. Those seeking counsel at public expense are doing so because they lack the funds to hire private counsel. In many jurisdictions, to be eligible to receive appointed coun- sel, the defendant must be at or below the poverty line, or some small multiple thereof. 72 If a defendant cannot pay the fee and does not understand that the fee may be waived, she may feel she has no other choice but to proceed without counsel. For this reason, no application fee should be charged to access counsel in misdemeanor cases. If a fee must be charged for public defense services, it should be a contribution fee subject to waiver and the pro- cedure for waiver should be well publicized and easily in- voked. In 2004, the American Bar Association adopted Guidelines on Contribution Fees for Costs of Counsel in Criminal Cases. Guideline 2 addresses the Determination of Ability to Afford a Contribution Fee, and states:
20
An accused person should not be ordered to pay a contribution fee that the person is financially unable to afford. Whenever an order for a contribution fee is under con- sideration, the accused person or counsel should be given an opportunity to be heard and to present information, includ- ing witnesses, concerning whether the fee can be afforded. If a contribution fee is ordered prior to providing counsel to the accused person, the decision to require a contribution fee should be subject to re- view at the request of counsel and coun- sel should be given an opportunity to be heard and to present information, includ- ing witnesses, concerning whether the fee can be afforded. 73
[A] trial judge must be more than an un- yielding revenue officer. When the con- cern for collecting a fifty dollar application fee is weighed against a de- fendant’s right to counsel and a fair trial, the scales of justice shift dramatically in favor of the defendant. Given the serious nature of the charge, as well as the ap- parent bona fide indigent status of the de- fendant, as demonstrated by the
“[T]he volume of misdemeanor cases, far greater in number than felony prosecutions, may create an obsession for speedy dispositions, regardless of the fairness of the result.” — U.S. Supreme Court, Argersinger v. Hamlin , 407 U.S. 25, 34 (1972).
Further, the ABA Guidelines require that notice be provided in advance that a contribution fee may be required “if the person has the ability to do so without substantial financial hardship.” 74 The notice should state “that counsel will be provided at all stages of the proceedings regardless of whether the person actually pays the fee.” 75 Misdemeanor Caseloads No matter how brilliant and dedicated the attorney, if the at- torney is given too large a workload, he or she will not be
Minor Crimes, Massive Waste
Made with FlippingBook Online document maker