“Affordable” Counsel

Those of us raised on cop dramas take for granted that in this country you have the right to an attorney, and that if you cannot afford it, one will be provided to you. What Americans don’t know is that in courtrooms across the country, there is a lot of room to interpret what “afford” actually means.

This week, the Brennan Center for Justice released a new report, “Eligible for Justice,” exposing the lack of standards for determining who is eligible for court-appointed defense counsel. In a national study, the Brennan Center found that many jurisdictions use flawed screening processes to separate those who can afford counsel from those who cannot, and as a result are denying government-funded defense counsel to people who should receive it, in violation of the Sixth Amendment.

The landmark Supreme Court case Gideon v. Wainwright requires that states provide counsel to all people charged with felonies who are unable to afford their own attorney without substantial hardship. Yet states have been provided with little instruction on how to determine which individuals are genuinely unable to pay for counsel. Some courts have no standards at all.

“Eligibility for defense counsel is determined differently almost everywhere we looked,” says Laura Abel, an author of the report and Deputy Director of the Brennan Center’s Access to Justice Program. “It depends on the county you live in, or the judge hearing your case, or the mood of the prosecutor that day. The result is a policy disaster.”

In Florida, Tennessee and Wisconsin, for example, courts routinely deny requests for counsel if a defendant has enough money to post bond, without considering how much money is left over. Some jurisdictions deny counsel if you have a family member who has enough money to post your bond—the logic being that that family member should be able to pay for your counsel as well. In Arizona; Collin County, Texas; Florida; and New Hampshire, courts deny counsel to defendants who have cars and houses, demanding that people sell these possessions in order to pay for an attorney.

Not surprisingly, in such a situation many people are forced to defend themselves (which often involves pleading guilty without a full hearing), or must sell their possessions, or go without staples like food and clothing, in order to pay for an attorney that the 6th Amendment says should be provided to them at no cost.

The solution? Courts across the country should implement simple, consistent screening processes that can fairly and transparently determine which people cannot afford counsel.

The full report is available here.