In all but 10 states, the families of children charged with crimes can be assessed fees to use attorneys appointed to represent them or billed for the cost of that representation, according to a new report.
“In almost every state, youth or their families must pay for legal assistance even if they are determined to be indigent, either by reimbursing the cost, paying a flat fee, or paying an application or other administrative fee,” the report from Juvenile Law Center says. “Charging families — especially those living in poverty — for ‘free’ attorneys leads to devastating consequences.”
The study found that 37 states require or permit the juvenile court system to bill families for attorneys’ fees when a lawyer is appointed to represent a child, bills that can run into thousands of dollars. Four states require administrative or application fees, while seven other states’ laws permit the practice. These fees range from $10 to as much as $400.
The center published a report last year that looked more broadly at fees within the juvenile justice system, but felt, “It’s important to focus on the cost of counsel because it impedes a young person’s ability to have a fair trial,” said staff attorney Nadia Mozaffar. “Any time you touch the juvenile justice system, you need an attorney, while other costs are only implicated when a child is placed in custody or services.”
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The report cites state laws and draws data from other studies. It relies primarily on a survey of 153 people involved with the juvenile justice system, most of them lawyers and other professionals who work with youth, who could report how policies related to attorneys’ fees are actually applied in their jurisdictions.
Of those respondents, 26.2 percent reported that youth or families were required to pay a portion of the cost of court-appointed counsel; 23.4 percent said that they were required to pay an application fee for the determination of indigence; and 12.1 percent reported that they were required to pay in some other way. About half of attorneys and other professionals reported that the courts they work with did not require such payments.
Threat can chill right to trial
Because many states allow local jurisdictions to make the decision, and some leave it up to judges, “without actually being in a courtroom in the jurisdiction, it is impossible to know what the practice is,” said Christina Gilbert, senior staff attorney at the National Juvenile Defender Center, which issued its own report last year on juvenile defendants’ access to counsel. “There are quite a number of places that charge these fees for children who appear to be indigent,” she said.
While imposing any costs on poor youth and their families can worsen financial hardship, attaching costs to legal representation “create unique threats to the constitutionality and adequacy of juvenile court proceedings,” the report argues. More than a third of respondents said fear of paying attorneys’ fees were leading young defendants to waive their right to counsel.
“I don’t think kids should be able to waive their right to counsel at all,” said Brent Pattison, director of the Middleton Center for Children’s Rights at Drake University’s law school.
The threat of having to pay for an appointed attorney not only “has a chilling effect on the right to counsel” but on “the right to a trial,” he said. “Kids can decide the costs they face if they plead guilty are less than the costs they face if they go to trial and have to pay for counsel.”
“Even where fees are nominal or may not be enforced,” Gilbert said, families are often unwilling to take a chance when the outcome “can be arbitrary from judge to judge and courtroom to courtroom.”
And, the fines and fees exacerbate disparities based on race and class because youth of color are penalized more heavily, the report said.
Even where poor families do receive free counsel for their children, the eligibility standards can deny assistance to families who really cannot afford a lawyer. “On average,” the report concludes, juvenile defendants receive appointed counsel if their family income is less than 125 percent of federal policy guidelines, which is $26,000 for a family of three.
“Often there is language like ‘they will be charged based on what their parents can pay,’” said Mozaffar, but if a family is indigent that determination has already been made. “The system is pretending they have money when they don’t.”