The Political Economy of Up-Front Fees for Indigent Criminal Defense

Abstract

In this article, we trace the origin and spread of state laws designed to make indigent criminal defendants pay, up-front, a portion of the costs of their state-appointed counsel. These co-pays, which can range from $10 to over $200, are part of the increasingly popular pay-as-you-go movement, requiring criminal defendants to defray the system costs of their prosecution and punishment.

On their face, such laws would appear to be a natural target of vigorous resistance by the defense bar. This turns out to be only half true, however, for it is often the leaders of public defense organizations, faced with severe budget cuts, who take the lead in advocating for the laws. The leadership encounters resistance from its front-line staff attorneys, who uncompromisingly invoke principles of government responsibility to the poor, and assert that fees will chill defendants' willingness to request a lawyer. Judges also react grudgingly to these laws, either by implementing them slowly or by invalidating them outright.

This political dynamic reveals a remarkable gap in criminal justice knowledge: the actual number of defendants who waive their legal right to counsel. Both supporters and detractors of the up-front fees make unsupported assumptions about the amount of waiver. We analyze data from two jurisdictions with co-pay laws, Minnesota and North Carolina, and find no sign of increased waiver directly caused by the laws. We then discuss the limitations of the data, and reflect on why public officials do not put more effort into tracking choices of defendants (especially misdemeanor defendants) that have such large effects on the cost and quality of the justice system.

Keywords: Criminal Procedure, Defense Counsel, Crime Politics, Waiver of Counsel

JEL Classification: K41, K42