Massachusetts Legal Counsel Fees Make Defendants Pay for Poverty
“If you cannot afford a lawyer, one will be appointed for you.” When I learned this sentence of the Miranda warnings, I understood it to mean that the state is obligated to provide free legal counsel to a defendant who cannot afford to hire a lawyer. But in practice, it most often means, “If you cannot afford private counsel, the state will appoint a public defender on your dime.”
Forty-two states and the District of Columbia have statutes that require defendants to pay for their court-appointed public defenders. In Massachusetts, defendants with an annual post-tax income of 250% of the poverty guidelines are considered indigent and are entitled to a public defender. They typically pay a $150 counsel fee, though defendants with higher incomes pay more, and the court may waive the fee for defendants who cannot afford to pay it within 180 days. Unlike what the moniker “legal counsel fee” suggests, their money is not being used to compensate public defenders. Rather, the fees are sent to the Massachusetts General Fund for any budgeting purposes. For example, most expenditures of the Massachusetts Legislature, judiciary, and institutions of higher education are paid for from the General Fund. This counsel fee scheme allowed Massachusetts to collect nearly seven million dollars in general revenue from impoverished individuals in 2016.
What happens when defendants cannot pay their counsel fees is equally troubling. Within two months of when the public defender is appointed, the court reports the unpaid fee to the government. The Department of Transitional Assistance and the Registry of Motor Vehicles may refuse to issue or renew the defendant’s driver’s license or registration until the fee is paid, and the Massachusetts Department of Revenue can intercept the defendant’s tax refunds to collect the fee. Massachusetts also uses posted bail as a collection tool, refusing to release it until the fee is paid and sometimes taking the fee directly from it. By implementing these penalties, the government punishes indigent defendants for being poor.
Counsel fees are not a new legal issue. The United States Supreme Court decided two cases in the 1970s which limited the arguments that can be made against the fees. But these decisions also highlighted that constitutionally-sound counsel fee systems cannot infringe on defendants’ rights to counsel and equal treatment under the law. For example, in Fuller v. Oregon, the Court explained that legal counsel fees may only be assessed against defendants who can afford to pay them. In James v. Strange, the Court held that indigent defendants who were in debt for failure to pay legal counsel fees could not be treated differently than other debtors. Defendants are also entitled to due process, meaning that a state must have procedures in place to prevent defendants who cannot afford legal counsel fees from being punished for their inability to pay.
Given the intricacies of designing a constitutional counsel fee system and the difficulties the fees pose to indigent defendants, it is no surprise that states have begun to eliminate counsel fees. California, for example, passed a broad criminal justice reform bill in 2020 that repealed its legal counsel fee statute, prevented collection of outstanding fees, and provided appropriations to backfill lost revenues. The legislature found that criminal justice fees raise constitutional questions, undermine public safety, and are expensive to collect. In sum, “they make poor people, their families, and their communities poorer.”
Equal Justice Under Law knows these findings to be true through our work. That is why we are in the process of investigating Massachusetts’ legal counsel fees and determining whether the statute and its enforcement meet constitutional requirements. We encourage Massachusetts, and the other states that continue to assess public defender fees on threat of criminal and civil punishment, to join us in reevaluating these fee systems and ending the criminalization of poverty. If you have any information you’d like to share concerning legal counsel fees in Massachusetts or elsewhere, please contact us at info@equaljusticeunderlaw.org.