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We've been learning about the growing practice of charging criminal defendants fees to fund the justice system. An NPR investigation finds defendants and offenders are charged fees at every step of the system, from the courtroom to jail, even probation. Some say this practice violates the constitutional rights of the poor.
In the next part of the series, Guilty and Charged, NPR's Joseph Shapiro goes to New Orleans to look into one fee that may surprise you: The charge for a public defender.
JOSEPH SHAPIRO, BYLINE: The Miranda Warning, we've heard it on TV cop shows, like "Dragnet."
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SHAPIRO: It's the Statement of Rights that police give when they take a suspect into custody.
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SHAPIRO: And here's the other part to it: If you cannot afford a lawyer, one will be provided for you, a public defender. In 1963, the Supreme Court in the landmark case, Gideon versus Wainwright ruled that indigent, criminal defendants have that right to a lawyer. But the High Court didn't say how states were to pay for those lawyers. So states turned to user fees.
NPR did a nationwide survey. We found that almost every state now charges defendants to use a public defender. And it's public defenders themselves who often support the fees, because they're underpaid and overworked and the fees have become a key part of the little funding they get.
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SHAPIRO: Nowhere is that more so than in Louisiana.
DERWYN BUNTON: Well, right now we are right in front of the Orleans Parish Sheriff's Office, right at the foot of the new construction.
SHAPIRO: Derwyn Bunton is the chief public defender for New Orleans. A few blocks from his office, there's a construction site.
BUNTON: And what they're building is a new jail, which was destroyed after Katrina.
SHAPIRO: The sheriff's gleaming jail complex is funded with federal and state dollars. By contrast, Bunton's staff works in a meager, rented office with donated furniture. To Bunton, it's a reminder that politicians are more eager to fund sheriffs and prosecutors. Not so much public defenders.
There's lots of work for the New Orleans public defenders. Louisiana has the highest incarceration rate by far in the United States, three times the national average. So caseloads are high: 400 cases at a time for attorneys who handle just misdemeanors. And to do all this work, the public defender's main source of income comes from court fees, from the money that's collected from people who break the law. Statewide, public defenders get about two-thirds of their income from court fees.
For Bunton's office, it's 45 percent.
BUNTON: We have a system that has created a real perverse incentive. We need crime. Otherwise the system falls down.
SHAPIRO: Crime brings people through the courts. When they go to court, even for traffic violations, they get charged fees. Those fees pay to run a lot of the justice system, for judges and prosecutors. But it's the public defender's dependence on fees that raises the most questions. Because the money comes mostly from the same poor people they're assigned to represent.
There's a $40 application fee, just to get a public defender. And then there's the fee that puts Bunton in what he calls a weird and uncomfortable position.
BUNTON: Some folks refer to it as the Bad Person Tax.
SHAPIRO: That's another fee, it's $45. But it's collected only if the client pleads or is found guilty at trial. And by state law it can't be waived, even if the defendant doesn't have a dime.
BUNTON: I'm very sympathetic to clients who feel like: Hey, you make money if I go down. You don't make a thing if I'm innocent, should I even believe that you care that I'm innocent. And those are very tough questions that we have to answer as an organization. But also as a community, as a country that believes in fairness and due process.
SHAPIRO: Nationwide, NPR found 43 states, plus the District of Columbia, now allow defendants to be charged for their public defender. We found two typical charges. Often there's that up-front application fee like the one in Louisiana. That can range from $10 dollars, that's the fee in New Mexico, to up to $400 in Arkansas.
Alicia Bannon, at the Brennan Center for Justice at New York University School of Law, helped us with this part of our survey.
ALICIA BANNON: And then many states also have reimbursement fees, where after the fact you can be asked to reimburse up to the full cost of your representation.
SHAPIRO: And that full cost, can run thousands of dollars. The courts, including the Supreme Court, have justified this by saying even a poor person can often pay something, maybe just that small application fee. Or maybe that person is poor today, but tomorrow they will find a good job and have money.
In reality, NPR found that poor people sometimes skip using an attorney. Or they carry the debt for their court-appointed lawyer for years.
Pam Metzger teaches at Tulane University Law School.
PAM METZGER: I know public defenders, right here in Orleans, and Lord knows they don't make any money, right? They're very underpaid. I know lawyers who have gone to the ATM and quietly slipped their clients the fine money. Because they couldn't stand the thought of the client going to jail because they were too poor to pay a fine.
SHAPIRO: She says it's rare. A client's girlfriend might find 40 bucks on a table. She says it's done discreetly because it violates rules about the boundaries between defendants and their attorneys. But if some public defenders don't like the way fees burden their clients, they also know those same fees fund their own work.
Metzger and some colleagues at Tulane several years ago challenged the practice of charging defendants for their public defender. A local judge agreed that the fees were unconstitutional. There was a public defender in the courtroom. And Metzger remembers he stood up and asked that the court keep collecting the fees while the case was appealed to the next court.
METZGER: And there in the courtroom, in their orange jumpsuits and shackles are 12 guys represented by the public defender, all of whom just heard their lawyer stand up and ask the judge to keep collecting $35 from them if they were convicted.
SHAPIRO: Later, the fee was reinstated. And two years ago, the Louisiana legislature, at the request of state public defenders, raised the fee from $35 to the current $45.
Metzger understands why states and public defenders feel forced to support fees on poor clients. Because the bigger issue is that government gives so little money to public defenders.
METZGER: They're really being asked to choose the lesser of two evils. Do they participate is what feels like a relatively minimal wrong: $45 a head. Or do they say: No, I won't participate in that but I understand that the consequence is going to be I'm going to have clients who are facing death. People charged with capital crimes and I have no money to pay for experts, I can't go forward. And those are very difficult decisions for ethical, committed, zealous defenders to make.
SHAPIRO: It's not just public defenders who worry that charging fees has gone too far. State legislators, too, including in Louisiana where lawmakers make a show of being tough on crime.
STATE SENATOR DANNY MARTINY: I always say, the three easiest votes for a legislator are: against gambling, against taxes and to put somebody in jail for the rest of their life.
SHAPIRO: Danny Martiny is the Republican leader in the Louisiana state Senate.
MARTINY: When people run for office, they usually ask their DA to get in the picture with them. They don't ask for the public defender.
SHAPIRO: Still, Martiny took the lead to increase appropriations to fund public defenders offices.
MARTINY: You know, it's not a very a very popular thing but I think it's an essential thing. And my argument is: Look, if you don't hire competent attorneys to represent these people, you may save money the first time. But when the defendant goes up and argues that he had incompetent counsel and the case has to be retried, or he's released from jail, you know, that's the risk that you run.
SHAPIRO: Still, two years ago, Derwyn Bunton, the chief New Orleans public defender was forced to lay off one-third of his staff.
BUNTON: So it used to be an office. Now its where boxes and stuff are.
SHAPIRO: There'd been cuts in state and city funding for the entire criminal justice system. And fee collection swings wildly up and down. It depends on how many cases go to court and then what can be collected from offenders who are mostly poor and often in prison. So Derwyn Bunton says that New Orleans is a cautionary tale for states across the country, as they turn more and more to depending upon these user fees.
Joseph Shapiro, NPR News.
CORNISH: Tomorrow in Guilty and Charged, Joe brings us the story of what happens to the thousands of people who simply can't pay their court fees.
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