Poor Defendants and Access to Justice
Submitted by Aswan Taylor, Chicago Appleseed Intern
Last year, a Chicago Appleseed investigation found that Cook County courts were routinely denying defendants a public defense, or ordering reimbursement for public defenders’ services, simply because the defendant had posted bond. As noted in May, 2013, the practice essentially forces defendants to choose between pre-trial release and a public defense without a required indigence hearing, thereby violating Illinois statute and the Sixth Amendment to the U.S. Constitution. Following several letters from Chicago Appleseed and a memo containing legal analysis of the issue by law firm DLA Piper, Chief Judge Timothy Evans issued General Administrative Order No. 2013-11 directing trial courts to adhere to state and federal law. However, the fundamental failure in Cook County courts to protect defendants’ rights is far from an isolated incident throughout Illinois or throughout the United States.
A separate, yearlong investigation conducted and published by NPR—with assistance from the Brennan Center and the National Center on State Courts—recently sheds light on what Appleseed considers a fundamental problem with the nation’s courts that fosters these types of practices: Not only do courts consistently make financial decisions about defendants without first learning about their individual situations, but the trend is also symptomatic of a large scale pattern of increasing fines and fees associated with the criminal justice system in the United States. Defendants in 43 states and Washington D.C. can be billed for a public defender, while offenders can get billed for their own probation and parole supervision in at least 44 states. Likewise, 41 states charge inmates for room and board in prison or jail, and every state except Hawaii and D.C. charge fees for electronic monitoring devices.
The amount of fees and fines levied against offenders has grown exponentially since the 1970’s, a phenomenon that NPR links back to the rising costs of incarceration following the War on Crime and the War on Drugs. “In 40 years, the number of people behind bars in the U.S. jumped 700%. Jails, courtrooms and prisons became overcrowded and the costs for states running them skyrocketed from $6 Billion in 1980 to more than $67 Billion each year in 2010.” In the years since, budget deficits have had a profound effect as lawmakers balked at the idea of raising taxes, forcing states to make ends meet by charging user fees and hefty fines.
For the millions of Americans in poverty that rightfully expect to find protection under decades of court rulings upholding the right of indigent defendants to have a lawyer, the response from states has only brought further financial hardship and often jail time. The NPR survey noted that both, upfront public defender application fees in the range of $10 to $400, and hundreds to thousands of dollars in reimbursement fees are commonplace. Often defendants have little choice but to forego any representation or end up saddled with years of debt using court-appointed attorneys.
In 2012, the Illinois Supreme Court definitively addressed the matter in People v. Guiterrez: “A public defender fee may be imposed only by the circuit court after notice and a hearing on the defendant’s ability to pay. We again remind the trial courts of their duty to hold such a hearing before imposing these fees, and we trust that we will not have to speak to this issue again.” Despite this ruling, it has become abundantly clear that bonds, sentences, fines and costs are still being carried out at the expense of defendants without regard to their financial situation in Illinois and virtually every other state. In 2010, a WBEZ report found that 116,000 individuals posted bond in Illinois. It’s not clear how many of those 116,000 defendants were indigent and also denied a public defense–or ultimately ordered to reimburse a public defender–but the number is likely to be high. While the action taken by Chief Judge Evans was a step in the right direction, increasing vigilance through the creation of a monitoring program and fostering national attention around these issues is critical if we hope to avoid long term regression and further restricted access for already aggrieved indigent defendants.