In my last post, I discussed the phenomenon that I call “the new peonage,” in which criminal justice debt creates a two-tiered system of justice in our juvenile and criminal courtrooms. One of my proposals for reform is to establish the right to counsel in nonpayment hearings. It is long-settled law that the Sixth Amendment requires that counsel be appointed to indigent criminal defendants who face the risk of the loss of liberty. Most states hold that this right, which derives from the Due Process Clause of the Fourteenth Amendment, also applies to civil proceedings. Most states also agree with Supreme Court dicta in Lassiter v. Department of Social Services (1981) that relying on the “civil” or “criminal” label placed on a proceeding when determining whether there is a right to counsel is not particularly helpful in this subset of cases, as the possibility of incarceration is an equally serious restraint on one’s liberty interests whether it results from a civil or criminal matter. State courts are split, however, on how best to determine whether the right exists when applied to a given set of facts, with some courts holding that a balancing test should be used on a case-by-case basis, and others holding that the right to counsel should be presumptively guaranteed in all matters that could potentially result in incarceration. Several states have even held that there is no right to counsel in civil fee collection proceedings regardless of whether the defendant could be incarcerated, invoking the civil/criminal distinction to support their holdings, thereby rejecting Lassiter.
An argument that is gaining traction is that there should presumptively be a right to counsel for indigent litigants in nonpayment hearings whenever those hearings can result in incarceration or an extension of probation or parole. In the recent case of Washington v. Stone (2012), James Stone pleaded guilty in 2001 to unlawful possession of a controlled substance (methamphetamine) and second degree theft, and the trial court sentenced him to 105 days in jail and twelve months of community custody with a fine of $2860. Two years later his supervision was transferred from the Washington Department of Corrections to the superior court clerk’s office, as he now owed (adding the interest) $3179. Two months later, without being told of the right to counsel, he signed an order agreeing to minimum monthly payments of twenty-five dollars, and agreeing that if he failed to pay, an arrest warrant would be issued. For the next twenty-nine months, Stone made the monthly payments, but when he missed a payment and a court appearance, an arrest warrant was issued, and he was sentenced to ten days in jail. This was followed by a period when he once again made payments. This scenario continually repeated itself; yet for three years the court did not inquire as to whether Stone wished to have counsel appointed. After the court finally inquired of him and counsel was appointed, a fact-finding hearing was held one week later, which the appellate court described as follows:
Stone testified that he was homeless; that he was left handed and limited to twenty-five percent use of that hand; that the Department of Social and Health Services (DSHS) paid his medical bills; that his only source of income was monthly net payments of $339 from a…”program…due to [his] disability with [his] shoulder”; and that he spent this money on shelter, cigarettes, and “a few other necessities” like food. He also testified that it cost him approximately $100 to travel to Jefferson County for court appearances.
At the hearing’s conclusion, the judge sentenced Stone to forty-five days in jail, with no inquiry as to his income or ability to pay, and without granting a deduction in his LFO debt for either of his two previous periods of incarceration. On review, the Court of Appeals of Washington held that a person has an absolute right to counsel at “ability-to-pay” hearings where incarceration may result, and that Stone’s due process rights were violated when he was incarcerated without findings regarding his ability to pay:
Stone’s lack of counsel during these proceedings created an “asymmetry of representation” because a prosecuting attorney represented the State in this adversarial proceeding. As the United States Supreme Court has observed, “The average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.”
The federal appellate court clearly recognized that if counsel had represented James Stone at the first enforcement proceeding, it would have made the difference between his maintaining and losing his liberty down the road. Counsel is needed to gather and present evidence regarding the defendant’s ability to pay, to assist her in navigating the often-complex procedures for requesting a reduction or waiver of fees, and to ensure that she understands the ramifications of payment orders or commitments. For these reasons, it is likely that early appointment of counsel will ultimately save the jurisdiction monies spent in repeated attempts at collection, issuing and serving arrest warrants, and the costs of incarceration.
Of course it is critical to keep in mind that when counsel is appointed, at least forty-three states and the District of Columbia can require defendants to contribute to its cost. This fee is often a significant component of the total debt burden imposed by LFOs, and given the disproportionate representation of low-income defendants and civil litigants struggling under the new peonage, it rests squarely on the backs of those least able to afford it. In Florida and Ohio, individuals must pay defender fees even if they are acquitted or the charges are dismissed. In states that offer hardship waivers of these fees by statute, some fail to provide them in practice. And, defender fees often serve to discourage low-income people, including children in juvenile court, from exercising their constitutional right to counsel, resulting in systematic waivers of counsel.
Yet, if the right to counsel at nonpayment hearings is implemented in combination with several other legislative proposals, such as the exemption of attorney fees for indigence, these costs should cease to be a significant hardship for low-income defendants.
This post previously appeared on the Human Rights at Home blog.
Tamar Birckhead’s research on “The New Peonage” will be published by the Washington & Lee Law Review in December 2015.