Tim Powers
Denton Criminal Defense Lawyer
Law Offices of Tim Powers, Denton, Texas
940.580.2899
www.timpowers.com
The Sixth Amendment to the United States Constitution provides that, In
all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein
the crime shall have been committed, and to have the Assistance of Counsel
for his defense. The right to have assistance of counsel requires individual
states to appoint attorneys for indigent defendants in criminal cases.
Gideon v. Wainwright, 83 S. Ct. 792 (1963). However, there are two important limitations on
this right to an appointed attorney. First, the right to an attorney does
not attach until the formal initiation of criminal proceedings by complaint,
indictment or information.
Kirby v. Illinois, 406 U.S. 682, 689 (1972). Second, all states and the federal government
have some type of cost recoupment system that allows states and the federal
government to recover from indigent defendants some of the costs of providing
counsel to them.
No Right to an Appointed Attorney for a Person under Investigation but
not Charged
In a long line of cases dating back to 1932, the Supreme Court has held
that the Sixth Amendment right to the assistance of counsel does not attach
until a person is formally charged with a crime
. Powell v. Alabama, 287 U.S. 45 (1932);
Kirby v. Illinois, 406 U.S. 682, 689 (1972). This holding means that when a person is under
investigation by law enforcement she does not have a right to court appointed
counsel to assist her in responding to and protecting herself from the
authorities. Only where the government had crossed the constitutionally
significant divide from fact-finder to adversary can an uncharged person
have the right to an appointed attorney.
Hall v. Lane, 804 F.2d 79, 82 (7th Cir. 1986). Essentially, an uncharged person is
entitled to appointed counsel only when the government intentionally delays
filing charges in order to avoid the protections of the Sixth Amendment.
Bruce v. Duckworth, 659 F.2d 776, 783 (7th Cir. 1981).
Government Recovery of Costs of Appointed Counsel
The Supreme Court has unambiguously held that the Sixth Amendment requires
appointment of counsel for indigent defendants.
Gideon v. Wainwright, 83 S. Ct. 792 (1963). In recent years, the federal government and all
the states have established systems to seek reimbursement from indigent
defendants for some of the costs of appointed counsel. The constitutionality
of recoupment statutes has been challenged on grounds that such statutes
deny the indigent defendant her Sixth Amendment right to assistance of
counsel and her Fourteenth Amendment right to Equal Protection of the
laws and Due Process. While some of the specific state systems have been
deemed unconstitutional in application, the concept that governments can
seek to recoup some of the costs of appointing counsel for indigent defendants
has been consistently upheld.
Sixth Amendment Challenges
In some cases where courts have considered the validity of state recoupment
statutes under the Sixth Amendments right to assistance of counsel, courts
have held that such statues did not deny indigent defendants right to
assistance of counsel. On the other hand, some courts have held that such
statutes were unconstitutional because they discouraged indigent defendants
from exercising their right to have assistance of counsel. In
State of Alaska v. Albert, 899 P.2d 103 (Alas. 1995), the Supreme Court of Alaska held that Alaska's
recoupment statute did not violate indigent defendants right to counsel
because there was no evidence that the recoupment system caused indigent
defendants to refuse counsel more frequently than non-indigent defendants.
Likewise, In
Fuller v. Oregon, 94 S. Ct. 2116 (1974), the United States Supreme Court held that because
Oregon's recoupment statute only imposed obligation to repay costs
of counsel on those with foreseeable ability to meet that obligation,
it did not deter indigent defendants from exercising their right to counsel.
In certain jurisdictions, recoupment statutes do not require a court to
determine an indigent defendants ability to pay prior to the recoupment
judgment. Furthermore, some jurisdictions do not require determination
of the indigent defendants ability to pay prior to recoupment judgment
even if jail is a possible consequence for nonpayment.
While some state recoupment statutes have been deemed constitutional because
the statute did not violate the Sixth Amendment by discouraging indigent
defendants to exercise their right to counsel, other state recoupment
statues have been held unconstitutional because the statute chilled an
indigent defendants exercise of the right to counsel. In
Fitch v. Belshaw, 581 F. Supp. 273 (1984), Oregon's recoupment statute authorized courts
to assess the cost of court-appointed counsel if the court determined
that the indigent defendant was able to repay attorneys costs. However,
all defendants who requested appointment of counsel were required to sign
an affidavit promising to repay the costs of appointed counsel, discouraging
defendants to exercise their Sixth Amendment right. The court held that
Oregon's recoupment statute unconstitutionally chilled indigent defendants
exercise of the Sixth Amendment right to counsel because it required all
indigent defendants to promise to repay their attorney costs whether or
not they had the means to repay.
Due Process and Equal Protection Challenges
Section 1 of the Fourteenth Amendment to the United States Constitution
provides that, No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws. In cases where courts have considered the validity
of state recoupment statutes under the Due Process Clause of the Fourteenth
Amendment, courts have held that such statues did not deprive indigent
defendants of liberty or property interests within the meaning of the
Due Process Clause. In
Wicks v. Charlottesville, 208 S.E.2d 752 (Va. 1974), Virginias recoupment statute permitted automatic
taxation of a convicted defendant for repayment of attorney's fees.
The Supreme Court of Virginia held that while the United States Constitution
assures every accused a right to court-appointed counsel, no court has
held that every constitutional right or privilege must be available to
all persons without any cost or obligation on their part. Hence, the Court
found Virginias recoupment statute valid under the Due Process Clause.
On the other hand, in Fitch, supra, indigent defendants claimed that Oregon's
recoupment statute deprived them of substantial liberty and property interests
without notice or hearing in violation of the Due Process Clause. Under
the Oregon recoupment statute, indigent defendants who failed to repay
the cost of counsel were subject to civil judgments, suspension of a driver's
license, arrest and imprisonment. The court held that such property and
liberty interests were substantial, especially when the statute did not
require a notice or hearing, and thus the Oregon recoupment statute deprived
indigent defendants of liberty and property without due process.
In
Albert, supra, indigent defendants argued that state recoupment statutes violated
the Equal Protection Clause of the Fourteenth Amendment. Under Alaska's
recoupment statute, indigent defendants had far less opportunity to challenge
the attorney's fees assessed by the state recoupment statute than
did more affluent defendants who wanted to challenge the fees charged
by their private attorneys. However, the court held that the recoupment
statute served a legitimate state purpose, to obtain payment for the cost
of appointed counsel. Hence, the court held that Alaska's state recoupment
statute did not violate the Equal Protection Clause of the Fourteenth
Amendment because the procedure granted to indigent defendants, even if
different from procedure granted to more affluent defendants, achieved
a legitimate state purpose with administrative efficacy while protecting
the rights of criminal defendants. On the other hand, the Supreme Court in
James v. Strange, 92 S. Ct. 2027 (1972), held that Kansas recoupment statue was unconstitutional
because it did not allow indigent defendants all of the exemptions provided
to other judgment debtors. The Court stated that Kansas' recoupment
statute treated indigent defendants discriminatorily from other judgment
debtors and thus the statute violated the Equal Protection Clause of the
Fourteenth Amendment.
Conclusion
The United States Constitution grants every criminal defendant a right
to counsel. Accordingly, federal and state courts must provide indigent
criminal defendants with court-appointed lawyers if they are unable to
hire private counsel. However, all state and federal governments now have
recoupment systems where able indigent criminal defendants are required
to repay attorneys costs at the end of trial. If you are confronted with
the option of requesting court-appointed counsel, it is important to consider
the recoupment statues of that jurisdiction or consult an attorney to
discuss the matter further. Additionally, if you are under criminal investigation
but not charged with a crime, you should consult an attorney to determine
whether you qualify for an appointed attorney and what can be done to
avoid criminal charges.
If you are seeking aggressive criminal representation by an experienced
criminal defense attorney for your Denton County criminal case or arrest
in Denton County, contact the offices of Tim Powers today. There is no
charge or obligation for the initial consultation. 940.580.2899.
*Tim Powers is an attorney licensed to practice law by the Supreme Court
of Texas. Nothing in this article is intended to be legal advice. For
legal advice about any specific legal question you should directly consult
an attorney.