Putting the Sixth Amendment Aside…
In a dramatic policy shift, the Nevada Supreme Court has directed Las Vegas (Clark County) judges to begin charging fees to indigent defendants for their representation by the public defender’s office, according to the Las Vegas Review-Journal.
No formal court rule has yet been issued by the Supreme Court or the Clark County District Court, and, according to the Clark County Public Defender, details regarding the fee’s imposition and collection are still murky. However, as of last week, assessment of the shotgun fee was nonetheless scheduled to go forward.
Clark County will follow the lead of Washoe County (Reno) by charging indigent defendants for the cost of their legal representation. Clark County’s new fee will operate on a sliding scale, with the fee will range from $250 to $750 depending on how much time the defender spends on the case and whether or not the case goes to trial, according to the Las Vegas Review-Journal. Individual judges will be tasked with determining how much of the fee is assessed in a particular case, according to the report.
“This is their co-pay,” one district court judge told the Review-Journal. “Now we’re an HMO.” Although a callous way to analogize the justice system, a move toward financing the court with “user fees” is a business model Nevada is not alone in adopting. Instead of funding courts through higher state appropriations for the judiciary, jurisdictions across the country are upping all kinds of fees collected from the pockets of criminal defendants, as state revenue collected from other sources slows. Crime is one rock-solid investment, even in recessionary times.
At least, the Review-Journal reports, revenue collected from this new fee will go toward funding indigent defense services. The same cannot be said of other jurisdictions, where courts’ user fees fund completely unrelated state functions.
Where does the right to counsel play into all this? Seemingly, nowhere.
Despite the fact that defendants qualifying for public defenders are already assumed to be indigent, and that the Sixth Amendment and Nevada law require that the state provide counsel for those criminal defendants unable to pay, the new fee will go forward.
A spokesperson for the Nevada Supreme Court left open the possibility that judges could exempt those who are unable to pay. Nevada Supreme Court spokesman Bill Gang told the Review-Journal that people who are truly indigent might not be assessed the fee. “It’s at the judge’s discretion,” said Gang.
That discretion may not be enough to ensure that those unable to pay obtain exemptions, as the Sixth Amendment requires. No system has yet been created in the county to verify a defendant’s income, says the Clark County Public Defender Phil Kohn. And District Judge Jennifer Togliatti tells the Review-Journal: “We have no way to know what a defendant can pay.” It remains to be seen on which side judges will err, but with pressure from above to collect, it’s probably not the best time to face charges in court.
To meet constitutional mandates, jurisdictions must develop objective and transparent policies for determining income-eligibility for a state-provided public defender and make sure that court fees do not interfere with a defendant’s right to counsel.
Even with a workable system for waiving fees for the indigent in place, such public defender fees are bad policy and could create a dangerous incentive system. As the county’s Public Defender tells the Review-Journal, the pay-per-hour mentality could pressure more defendants to plead guilty or risk representing themselves, a move that could result in unwarranted jail time.