The Cost of Indigence Under Legal Recovery and Public Defender Systems

Abstract

The research analyzes how legal institutions deal with the politics of economic hard times from the perspective of indigents who are constitutionally entitled to legal representation but constrained to pay the cost of appointed counsel. Legal cost recovery systems, also called recoupment or contribution, allow governments to recover public defender expenses in providing legal aid to indigents. U.S. Supreme Court precedent and federal/state practice generally reaffirm their constitutionality under the Sixth Amendment and enjoy widespread application; but prior research infers they incur a variety of financial, ethical, and human “costs” that span public administration, lawyer ethics, and comparative law. After outlining the different types of cost recovery systems and their constitutionality in the United States, the paper analyzes whether cost recovery systems incur detrimental costs and diminish access to justice, as suggested by prior studies, by examining case studies of their application in regards to the politics of state budgeting and the ambivalent demands of attorney ethics. The conclusion briefly examines whether right to counsel and its costs, as incurred in the U.S. context, are comparable to the demands placed on indigents pressing for the judicial enforcement of their social rights in criminal and/or civil adjudications in foreign jurisdictions.

Keywords: Indigent; public defender; costs and fees; legal recovery; recoupment; contribution; right to counsel