Lawyers on layaway: Alabama bills indigent defendants for court-appointed attorneys
by Tim Lockette
Sep 28, 2013 | 8863 views |  0 comments | 64 64 recommendations | email to a friend | print
MONROEVILLE – If anybody could claim to be a real-life Atticus Finch, Mickey Womble could.

Womble practices law out of a former bookstore on the town square in Monroeville, the town that inspired the book “To Kill A Mockingbird.” As public defender for Monroe and Conecuh counties, Womble defends anyone here who’s tried and is too poor to pay for a lawyer.

But he can’t say he defends them for free — because that just isn’t true.

“There’s really no such thing as a free lawyer,” he said.

Womble’s clients, if they’re found guilty, can face hundreds of dollars in court-imposed legal fees, even though they’ve already demonstrated that they’re too poor to pay. The money doesn’t go directly to Womble – it goes into state coffers, to offset the cost of paying court-appointed attorneys.

And Womble’s not the only public defender whose clients pay for representation. State documents acquired by The Star show that indigent defendants paid $4 million in legal fees and other trial-related costs to the state in fiscal 2012, according to figures from the state Department of Finance.

State officials say the $4 million collected in 2012 is only a fraction of the legal fees actually imposed on indigent defendants, who don’t have to pay until they’re released from jail or prison.

Legal fees for indigent defendants are old news to the lawyers who defend poor clients. But as Alabama’s cash-strapped court system adds more court fees for all sorts of services, lawyers such as Womble are beginning to ask whether the state is piling too much onto impoverished people in the court system.

Lawyers on layaway

The right to an attorney, even for those too poor to pay, has been a part of the American legal landscape since the Supreme Court’s ruling in Gideon v. Wainwright, decided 50 years ago. In that case, a Florida man, imprisoned on a burglary charge, argued that the state violated his rights by trying him without a lawyer, which he couldn’t afford.

Many people think that since Gideon, impoverished defendants have received legal services for free. But in Alabama, it’s long been more like a layaway plan.

In counties with a public defender’s office, indigent defendants pay a flat fee, based on the type of case being tried. In Tuscaloosa County, the price is $500 for drug possession cases, $750 for drug distribution cases and $1,000 to fight charges of first-degree robbery or first-degree burglary, said Randy Rose, a staff attorney with the Tuscaloosa County public defender’s office.

In Calhoun County, where lawyers are appointed on a case-by-case basis to defend indigent clients, defendants can be ordered to pay back every penny the state spent on their defense. The state has caps on how much it will pay lawyers for indigent defense, but the cost can be as high as $3,500 for a serious felony case.

"It’s a much smaller rate than you’d pay a private lawyer, but you’re paying," said Anniston lawyer Bill Broome, the president-elect of the Alabama Criminal Defense Lawyers Association.

Defendants have to pay the state back only if they’re found guilty, and they don’t have to pay until they’re released from prison. The clients who cost the most to defend — those in capital cases — will likely never pay, because a guilty verdict will place them in prison for the rest of their lives.

The rest typically pay on an installment plan, starting when they leave prison.

“It’s very nominal,” said Calhoun County Circuit Judge Debra Jones. “Some of it is $50 a month or $100 a month.”

The fee is typically part of a larger collection of court costs an ex-offender has to pay down — including fines, court fees and restitution to victims.

“You can rack up $4,000 to $5,000 worth of fines and costs in a heartbeat,” said Calhoun County Circuit Judge Bud Turner. “People have no idea.”

How it’s paid

For defense attorneys like Womble, the idea of charging fees to someone who has been already declared indigent seems absurd.

"If you haven’t had a job since you got out of high school, and don’t have a relative who can give you some money, how are you going to pay it?" Womble said.

State officials note that judges have the discretion to waive attorney fees for people who show they can’t pay. Clinton Carter, a deputy director in the state Department of Finance, said the collection rate on indigent-client attorney fees is low, with the $4 million collected representing only a fraction of the total fees owed. (The Star’s calls to the state Office of Indigent Defense Services, which is part of the Finance Department, were referred to Carter.)

Jones, the Calhoun County circuit judge, said that only in rare instances does she waive fees for clients who say they’re unable to pay. She said she’s more likely to ask them to sit down with court officials and work out a budget. She said there’s often something the ex-offender can do without.

“Usually they’ve got things on their budget like cable TV,” she said. “I ask them if they’re a smoker.”

Most can manage at least $10 a month, she said. For some, it might take 10 years to pay off the debt, she said.

Rising fees

At least 13 states charge some sort of fee for using the services of a public defender. That was the finding of a study by the Brennan Center for Justice at New York University, which looked at court fees in the 15 states with the largest prison populations. Alabama, where more than 25,000 people live in prisons built for 13,000, is one of those 15 states.

“Costs for a public defender range from a $50 fee to apply for representation to hundreds, or thousands, of dollars in legal fees,” said Lauren-Brooke Eisen, a lawyer who works for the Brennan Center.

Many of those same states are also increasing other court fees, Eisen said.

"A lot of court systems are struggling, across the country, to fund themselves," Eisen said. "They’re turning to court fees as a source of revenue."

In 2012, the Alabama Legislature approved a raft of increased court fees intended to raise more than $20 million to bolster the state's court system, which has laid off workers and limited working hours in recent years due to budget constraints.

Eisen said those fees can saddle ex-offenders with debt that makes it hard for them to start a new life.

"It adds to what is an insurmountable cycle in the criminal justice system," she said.

Eisen said pursuing court debt could actually end up costing states more than they’re owed. If ex-offenders land in jail because of non-payment, the cost of incarceration could easily add up to thousands of dollars. There’s also the labor cost incurred when court systems or district attorney’s offices act as debt collectors, she said.

‘Can they pay part?’

University of Alabama law professor Joseph Colquitt says the attorney-fee system isn’t really a threat to defendants’ rights to representation.

“This is in complete compliance with Gideon,” he said. “A client may not be able to afford the cost of an attorney up front. The question is, can they pay part of it?”

Colquitt, a former criminal defense attorney and retired judge, said that in the years immediately after the Gideon decision, judges would simply appoint lawyers to represent poor defendants, and pay them next to nothing.

“I remember being appointed in 17 cases and the judge paid me $5 for each one,” he said. Colquitt said the fees, in place now for decades, represent the state’s effort to actually pay for the services it provides.

Colquitt said some defendants claim to be indigent because, while they have assets, they don’t have money on hand for a lawyer at the time of their arrest. Those clients should be able to pay the lower cost of a court-appointed lawyer after the trial is over, he said. Recovering the fees, he said, helps fund indigent defense while discouraging misuse of the system.

“This is not just a dole-out of public funds,” he said.

Balancing act

It’s not clear how many people, if any, have been jailed for failing to pay for a court-appointed attorney. Because ex-offenders typically owe other court costs in addition to their attorney fees, it’s hard to separate one debt from another.

Court statistics show that across the state in the 2012 fiscal year, 5,402 unpaid court fees were turned over to district attorney’s offices for collection in circuit courts alone.

Jones, the Calhoun County judge, said she will occasionally send those who default on court debt to jail for five- to seven-day stretches. She and other judges were quick to point out that no one can be jailed for defaulting on court debt if they truly lack an income, though people with an income sometimes default.

Jones recalled a recent case in which a woman with a job at a local restaurant missed payments and wound up behind bars for a week. She said it’s necessary to punish the worst court-debt defaulters, so others will know there is a penalty for not paying.

“If we do not collect the monies that are due, we cannot run the system,” she said.

Turner said the choice of whether to jail a court-debt defaulter is a tough one. It doesn’t take long for the cost of incarceration to grow beyond the amount of the debt.

“We're always balancing it out,” he said. “The cost of locking people back up, versus the money that they owe.”

No new taxes

Womble, the Monroe County public defender, thinks the rise in court costs is beginning to weigh on clients when they make the choice between going to court and taking a plea deal.

"It’s becoming, more and more, a consideration for defendants," he said.

In its study of court costs, the Brennan Center made a similar claim, saying that the poorest defendants may forego representation to avoid fees.

Jones disagrees. The particulars of the case matter more in a plea decision, she said, than the cost of a court-appointed lawyer.

“I don’t think people calculate that,” she said. “I think it would have to do more with the prison time.”

Turner said most defendants probably aren’t even aware of the cost when they’re first arrested.

"Most people think it’s a free lawyer,” he said.

Judges and defense attorneys do agree on one thing — that the state’s court system is underfunded, and that the state’s court fees are an attempt to address that.

"The state of Alabama is not going to pass any new taxes," said Broome, the Anniston lawyer. "They call it court costs instead."

Raising court costs is easier politically, he said, because most people don’t seem to care what happens to criminal defendants.

Womble thinks people should care.

“Some people say, ‘Well, they’re criminals and should have to pay,’” he said. “But for me it comes down to what’s fair, and what’s just.”

Capitol & statewide correspondent Tim Lockette: 256-294-4193. On Twitter @TLockette_Star.

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