News Release ~ 03/18/2014

Redefining Indigence: Comprehensive National Report Reveals How States Decide Who is “Too Poor” to Hire a Lawyer

Washington, DC (March 18, 2014) -- Marking the 51st anniversary of the Supreme Court's landmark decision in Gideon v. Wainwright, The National Association of Criminal Defense Lawyers (NACDL) today released a report revealing various ways states restrict access to counsel. In particular, states do so by applying unrealistic eligibility guidelines and imposing myriad fees when people are deemed eligible for assigned counsel. Prepared by NACDL’s Indigent Defense Counsel John Gross, Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel documents how the widely-held belief that if you cannot afford an attorney one will be provided to you free of charge is simply not true. This report serves as a stark reminder that much work remains to secure the meaningful protection of Americans' Sixth Amendment right to counsel.

NACDL President Jerry J. Cox said: "The denial of counsel to those too poor to hire a lawyer based on arbitrary income eligibility guidelines undermines the central tenet of our criminal justice system: that every defendant should stand equal before the law. While woefully underfunding access to counsel under the Sixth Amendment, states are spending exorbitant amounts of taxpayer dollars prosecuting and incarcerating defendants. The information contained in this 50-state survey compellingly makes the case that states must reevaluate how they make eligibility determinations for assigned counsel in order to ensure that those who are too poor to hire a lawyer are not denied their right to counsel."

This 50-State Survey of Financial Eligibility Guidelines for assigned counsel documents how states decide who is "too poor" to hire a lawyer. It identifies which states rely on the Federal Poverty Guidelines when determining eligibility for assigned counsel, and explains the origin of the Federal Poverty Guidelines and how they cannot accurately predict who is "too poor" to hire a lawyer. In addition, the survey looks at how states define "indigency" and whether or not that definition is consistent with ABA standards for Providing Defense Services. It also looks at the fees and costs imposed on supposedly indigent defendants who are assigned counsel. These include application fees, payable at the time a request for counsel is made, and reimbursement fees, payable at the conclusion of the case or over time.

Among other findings, the report reveals a number of ways in which states have attempted to contain costs by reducing the number of defendants who are financially eligible for assigned counsel:

  • While states have various definitions of “indigency,” the majority of states rely on the Federal Poverty Guidelines to determine eligibility for assigned counsel, even though those guidelines are of limited value because they are based solely on the cost of food.

  • The result is that in Georgia, Maine, Missouri and Virginia, a defendant earning less than $15,000 a year may be ineligible to receive state funded representation because they have an income slightly above 125 percent of the federal poverty guidelines but are eligible for federal assistance through WIC, SNAP, the School Lunch Program, LIHEAPS, and CHIPS.

  • While just over one third of the states have adopted standards which make it clear that the posting of bond is not a justification for denying a defendant assigned counsel, one fifth of the states have standards that explicitly identify the posting of bond as a consideration when determining eligibility for assigned counsel.

  • While some states find defendants who are already receiving certain needs-based federal benefits automatically eligible for assigned counsel, other states actually consider these benefits as “income” when making eligibility determinations.

  • Virtually every state has some requirement that indigent defendants either make a contribution or reimburse the state for the costs of representation and one third have application fees for assigned counsel.

Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel is the second part of NACDL's study, Gideon at 50: A Three-Part Examination of Indigent Defense in America. Links to this report as well as to part one of this project -- Rationing Justice: The Underfunding of Assigned Counsel Systems -- are available at www.nacdl.org/gideonat50. And to access additional resources and learn more about NACDL's extensive work in the area of indigent defense, please visit www.nacdl.org/indigentdefense.

Ivan Dominguez, Director of Public Affairs and Communications, (202) 465-7662 or idominguez@nacdl.org

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 10,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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