Author(s): Juvenile Law Center
- Jessica Feierman
- Nadia Mozaffar
- Naomi Goldstein
- Emily Haney-Caron
Published: July 25, 2018
“More than fifty years ago, the United States Supreme Court established in Gideon v. Wainwright that a criminal defendant who cannot afford to hire a lawyer must be provided one at no cost because “lawyers in criminal courts are necessities, not luxuries.” Just a few years later, the Court held in In re Gault that young people in juvenile justice proceedings, like adults in criminal cases, have the right to an attorney to ensure that the system treats them fairly. Yet, across the country, this fundamental right to counsel is accompanied by hefty price tags, even for youth who are indigent and eligible for court-appointed attorneys. In almost every state, laws either permit or require young people or their family members to pay for the cost of court-appointed attorneys, including public defenders. In many states, even families living in poverty must bear this burden. These laws and practices undermine young peoples’ procedural rights and erode the restorative vision of the juvenile justice system.
This report analyzes statutes regarding cost of court-appointed counsel in each state, including fees for public defenders. The report is also based on a survey of 153 individuals—including attorneys for youth and other professionals and stakeholders, and includes comments from attorneys who further explain the impact of these policies on youth and their families. The report reveals that laws and policies across the country permit or require youth and families to pay for cost of court-appointed counsel—including public defenders, that courts regularly impose such costs, and that the financial obligations lead to troubling consequences for youth and families.
Youth almost never have resources to pay for their own attorneys; asking them to do so puts them in an impossible position. Because state laws typically require youth or their families to prove indigence, however, this report focuses on what happens after the determination of indigence and the appointment of counsel. In almost every state, youth or their families must pay for legal assistance even if they are determined to be indigent, either by reimbursing the cost, paying a flat fee, or paying an application or other administrative fee.
Charging families—especially those living in poverty—for “free” attorneys leads to devastating consequences. Research has shown that fines and fees in the juvenile justice system create serious financial burdens that push youth further into the justice system and drive families who are already facing financial difficulties into greater economic distress.
Our research for this report suggests that requiring youth and families to pay for the cost of court-appointed counsel leads to similar problems—youth are forced deeper into the justice system, youth remain under justice system supervision longer, and families are pushed into poverty…
Moreover, while the justice system should be a level playing field, these fines and fees also exacerbate disparities based on race and class. Research has shown that youth of color are pushed deeper into the juvenile justice system than their white counterparts, even for the same types of behavior. This, in turn, has placed a disproportionate financial burden on youth and families of color. Imposing legal costs likely magnifies this burden.
In addition, requiring youth or families to pay for court-appointed counsel may undermine the juvenile court process. A significant number of survey respondents noted that young people waived the right to be represented by counsel because of the fees they or their family members would be required to pay for their attorneys. At least one survey respondent also highlighted that prosecutors used the threat of fees to pressure youth to plead to delinquency charges.
Section A of the report discusses the importance of counsel for youth in the juvenile justice system. Section B explores state laws and policies relating to the cost of court-appointed counsel for youth and families. Section C shares the result of our survey of public defenders and examines the harms associated with the cost of court-appointed counsel, including the financial burdens on young people and their families and the conflicts created when parents are responsible for their children’s appointed counsel fees, and Section D highlights a recent legislative reform in California that may serve as a model around the country.”