WHEREAS the National Association of Criminal Defense Lawyers (NACDL) is committed to ensuring justice and due process for all who are accused of a crime or wrongdoing and to safeguarding fundamental constitutional right; and
WHEREAS NACDL’s Public Defense Committee convened a workgroup to research, evaluate, and make recommendations regarding the imposition of fees associated with public defender representation;{1} 1 As used in this Resolution, the term “public defense” includes public defenders, court-appointed and contract counsel, and any other form of providing counsel under the Sixth and Fourteenth Amendments to the United States Constitution or applicable state constitution or law, as well as ancillary services such as investigators, mitigation specialists, paralegals, social workers, and experts. and
WHEREAS the Committee finds that while reforms are taking place,{2} 2 Joanna Weiss and Priya Sarathy-Jones, Bipartisanship at Work: A Decade of Fines and Fees Reforms, Fines and Fees Justice Center, March 2025. See also, Nevada SB 120 (passed in 2025, eliminates fees for public defense services and eliminating interest and fees for payment plans); New Mexico HB 139 (passed 2023, eliminating post-adjudication and bench warrant court fees); North Dakota HB 1417 (passed in 2025, eliminates application fees and recoupment fees for public defense services and eliminates probation supervision fees). many governmental units still assess a wide array of fees to those who face criminal charges.{3} 3 As of 2022, 48 states and the District of Columbia imposed 1 or more fees or surcharges to individuals in the criminal legal system. Assessments and Surcharges: A 50-State Survey of Supplemental Fees, Fines and Fees Justice Center, Dec. 2022. These include fees for incarceration, prosecution costs, state forensic laboratory operations, victim compensation funds, court facilities, and clerk’s office operations, with fees often being assessed regardless of whether an individual defendant or their case utilized such service.{4} 4 Such fees vary from state to state and can include payments to the Fund to Combat Violent Crimes (Delaware); Child Advocacy Center and court document storage fees (Illinois); Judicial Retirement Fund fee (Nebraska); Spinal Cord Research Fund (New Jersey), County Probation Officers’ Firearm Education and Training Fund (Pennsylvania); Shock Incarceration Program and Law Enforcement Officers’ Hall of Fame (South Carolina), and the Internet Crimes Against Children fee (Virginia). Assessments and Surcharges: A 50-State Survey of Supplemental Fees, Fines and Fees Justice Center, Dec. 2022. Also, see generally, Kirk Semple and Jonah M. Kessel, Grab Your Calculators, We’re Going to Jail, (video) New York Times, Oct. 2024.
Especially odious are the fees assessed for a person asserting their constitutional right to counsel, including fees to apply for and/or for the provision of court appointed counsel,{5} 5 Currently 42 states and the District of Columbia authorize fees to apply for and/or to pay for public defense representation. Marea Beeman, Kellianne Elliott, Rosalie Joy, Elizabeth Allen, and Michael Mrozinski, At What Cost: Findings from an Examination into the Imposition of Public Defense Fees, NLADA, July 2022. as well as those for asserting their right to trial;{6} 6 These can include enhanced fees for counsel if a case goes to trial as well as fees charged for having a jury trial. and
WHEREAS the criminal legal system is intended to benefit the entire community and should be funded and supported by the government
WHEREAS research repeatedly demonstrates that such fees are ineffective ways to raise revenues, negatively impact rehabilitation, further entangle individuals in the legal system, unnecessarily extend punishments, serve as a barrier to the exercise of constitutional rights, foster distrust of the legal system, and do not improve public safety.{7} 7 Matthew Menendez, Michael F. Crowley, Lauren-Brooke Eisen, and Noah Atchison, The Steep Cost of Criminal Justice Fees and Fines: A Fiscal Analysis of Three States and Ten Counties, The Brennan Center for Justice at New York University School of Law, Nov. 2019. See also, Ann Teigan, Assessing Fees and Fines in the Criminal Justice System, National Conference of State Legislatures, Jan. 2020; Alisa Smith, The Cost of (In)Justice: A Preliminary Study of the Chilling Effect of the $50 Application Fee in Florida’s Misdemeanor Courts, 30(1) U. Fla. J. L. & Pub. Pol’y 59 (2019).
THEREFORE, BE IT RESOLVED, NACDL urges governmental units to remove all fees assessed against defendants in the criminal legal system.
BE IT FURTHER RESOLVED, in support of this call to end the use of court fees, NACDL recommends the following:
- Eliminate all fees associated with applying for a public defense lawyer.
- Eliminate all fees associated with reimbursing the government for costs associated with providing public defense services.
- Eliminate all fees associated with the cost of prosecution.
- Eliminate all fees associated with the cost of incarceration.
- Eliminate all additional fees, interest, and other financial penalties associated with payment plans.
- Prohibit incarceration or any other sanction as a punishment for non-payment of financial obligations without a court first conducting a meaningful ability-to-pay hearing{8} 8 Bearden v. Georgia, 461 U.S. 660, 667-69 (1983). In conducting an ability to pay hearing, courts must assure a defendant is given notice of the hearing, adequate time to prepare and present their case, and the assistance of counsel. and finding that non-payment was willful.
- In those governmental units where court fees are not eliminated:
- Ensure any fees assessed are related to the criminal legal system.
- Ensure any fees charged to an individual are related to the services provided to that person.
- Ensure that no fees are mandatory, allowing the court to have the authority to waive, decline to assess, or reduce fees as consistent with the financial circumstances of the individual.
- That before any fee is assessed, as well as any time thereafter when needed, a meaningful ability-to-pay hearing{9} 9 Bearden v. Georgia, 461 U.S. 660 (1983). is conducted and fees are waived, reduced, or otherwise modified consistent with the financial circumstances of the individual.
8. In those governmental units where fees are used in whole or in part to fund public defense, any fees eliminated should be replaced by general governmental resources.
Additional Reference Materials:
• American Bar Association, Ten Guidelines on Court Fines and Fees, 2018.
• Conference of State Court Administrators Policy Paper, Courts Are Not Revenue Centers, Reynolds, Carl and Jeff Hall, 2011–2012.
• U.S. Department of Justice Office of the Associate Attorney General, Justice Department Dear Colleague Letter to Courts Regarding Fines and Fees for Youth and Adults, Rachel Rossi, Amy Solomon, and Kristen Clarke, 2023.
• National Center for State Courts, Principles on Fines, Fees and Pretrial Practices, 2024.
