55. ABA Criminal Justice Standards, Providing Defense Services, Standard 5-7.1 and Commentary: Counsel should be provided to persons who are financially unable to obtain adequate representation without substantial hardship. Counsel should not be denied because of a person’s ability to pay part of the cost of representation, because friends or relatives have resources to retain counsel or because bond has been or can be posted. 56. See id. 57. See, .e.g, Rev. Code of Wash. 10.101.020 (2) (“In making the determination of indigency, the court shall also consider the an- ticipated length and complexity of the proceedings and the usual and customary charges of an attorney in the community for rendering services, and any other circumstances presented to the court which are relevant to the issue of indigency. The appointment of counsel shall not be denied to the person because the person’s friends or relatives, other than a spouse who was not the victim of any offense or offenses allegedly committed by the person, have resources adequate to retain counsel, or because the person has posted or is capa- ble of posting bail.”). 58. See generally Eligible for Justice , supra . n. 44. 59. Id. at 19. 60. Id. at 9. Prosecutors should also be prohibited from participating in the selection of defenders. The independence of the de- fense function cannot be maintained if the prosecutor, the adversary of the defender, has a role in selecting the defender. See American Bar Association, Ten Principles of a Public Defense Delivery System (Feb. 2002), at Principle 1 and Commentary (noting the impor- tance of the independence of the defense), available at http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/tenprin- ciplesbooklet.pdf (last visited Mar. 16, 2009). For this reason, an ethics opinion drafted by NACDL ethics counsel forbids a district attorney from having any involvement in the operation or administration of the public defender’s office. See NACDL Ethics opinion 95-1, available upon request from NACDL. 61. American Bar Association Resolution 107, supra . n. 54. 62. Mary Sue Backus and Paul Marcus, The Right to Counsel in Criminal Cases, A National Crisis , 57 H ASTINGS L.J. 1031, 1032 & 1035 (2006). 63. Application fees must be distinguished from reimbursement or recoupment. An application fee is a flat rate fee for use of pub- licly funded defense service that is assessed at the outset of the criminal proceeding, often before any representation is provided. Re- imbursement or recoupment is generally charged at the conclusion of a representation and the amount of the charge generally represents the cost of the particular representation or a portion thereof. ABA policy is to forbid the use of a reimbursement charge unless the de- fendant engaged in fraud to obtain the public defense services. See ABA Standards for Criminal Justice, Providing Defense Services, Standard 5-7.2(a) (“Reimbursement of counsel or the organization or governmental unit providing counsel should not be required, ex- cept on the ground of fraud in obtaining the determination of eligibility.”). 64. S.C. C ODE A NN . § 17-3-30 (2008). 65. See, e.g ., Freehold Township Web site, http://www.twp.freehold.nj.us/departments/Municipal-Court/public-defender.asp; For a summary of statewide fee programs, see also The Spangenberg Group, Public Defender Application Fees: 2001 Update (2001), avail- able at http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/pdapplicationfees2001-narrative.pdf. 66. ABA Standing Committee on Legal Aid and Indigent Defense, Report to Board of Governors in Support of Adoption of Guide- lines (Aug. 2004), at 5, available at http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/rec110.pdf. 67. Powell v. Alabama , 287 U.S. 45, 68-69 (1932); see also Johnson v. Zerbst , 304 U.S. 458, 462-63 (1938) (“[T]he obvious truth [is] that the average defendant does not have the professional legal skills to protect himself.”); Argersinger , 407 U.S. at 32 n.3 (“That which is simple, orderly and necessary to the lawyer – to the untrained laymen – may appear intricate, complex and mysterious.”). 68. See Misdemeanor Defense in Practice, infra . notes 156-168 and accompanying text. 69. It is for this reason that ABA standards require an attorney to investigate a case before the defendant enters a guilty plea. See ABA Criminal Justice Section, Standards on the Defense Function, § 4-4.1, available at http://www.abanet.org/crimjust/stan- dards/dfunc_blk.html#4.1 (last visited Mar. 2, 2009): Standard 4-4.1 Duty to Investigate: Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty. 70. State v. Tenin , 674 N.W.2d 403, 410-11 (Minn. 2004). 71. State v. Jolicoeur, 327 N.J. Super Ct. 91, 95-96 (N.J. Super. Ct. 1999). By contrast, an application fee that is subject to waiver for inability to pay has been upheld. See Stephen Cameron v. Justice of the Taunton District Court , Slip Op. (Supreme Judicial Court for Suffolk County, June 5, 1992). 72. See, e.g., O HIO A DMIN . C ODE § 120-1-03(B)(2) (“Applicants with an income over 187.5 percent of the federal poverty level shall be deemed not indigent.”). Federal poverty level for a single person in the lower 48 states and the District of Columbia is $10,400. See Federal Register, Vol. 73, No. 15 (Jan. 23, 2008), at 3971-72. Accordingly, an individual making greater than $19,500 per year is ineligible for public defense services in Ohio, regardless of the charge they are facing. For recommendations on how indigent defense eligibility guidelines should be structured, see Eligible for Justice, supra . n. 44.
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Endnotes
The Terrible Toll of America’s Broken Misdemeanor Courts
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