Charging for public defenders presents a major barrier in access to justice.

Imagine being found indigent, unable to afford your own defense, getting an attorney appointed for you because of this fact, and then getting charged anyway. This reality, which seems inherently unfair, is the reality that many litigants face. New Hampshire Public Radio recently highlighted the story of a Keene, NH man who was billed $750 by the State of New Hampshire after using the services of a public defender in a case where he was found not guilty.

This story is not unique. According to an NPR chart, the majority of states charge for criminal defense for indigent clients. In 2010, reports by the Brennan Center for Justice and the American Civil Liberties Union found that many states charge fees to indigent defendants, some of which can get as high as thousands of dollars. 

An interesting note from the Brennan Center report is that these fees have, in Michigan at least, increased the rate at which people decline representation. This is a substantial barrier to justice. Unlike civil legal aid, which is provided entirely free of charge, indigent defendants often face a situation where they would be liable for the cost of their counsel. Because of this, when faced with the possibility of paying out of pocket for an attorney, a criminal defendant might think that it's better to go for it on their own. After all, if a person is found not guilty, then they've incurred an expense because of a crime that they may not have even committed. The can often result in a cascading waterfall of negative consequences.

Since the debtor is often the state, the consequences of not being able to pay can often be greater. As the linked USA Today article notes, people can even lose tax refunds when the state comes to collect the debt. For low-income litigants, this results in lost money that they could use for food, clothing, rent, utilities, and other essential items. When you're in poverty, you're often living on the financial margins, every little bit helps and every little bit that you lose can hurt severely.

Are these programs even successful? In at least one state, no. The Argus Leader in South Dakota discussed the low collection rate for these fees from indigent defendants. The states are needlessly creating burdens on low-income people for money that they will likely never see again. Many low income people simply cannot afford to pay and by choosing to exercise a fundamental right that has been recognized by the United States Supreme Court, they may be imperiling their financial future. However, by denying counsel in order to avoid this outcome, they are also imperiling their freedom and their future. After all a criminal record can often preclude a person from employment. The result of this peculiar predicament is a no-win situation for those who find themselves unfortunate enough to be in it.

The exercise of a fundamental right should not come with unnecessary risks.