Read our brief about why Virginia must end court-appointed attorney fees.
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FINES AND FEES:
Did you get billed for a court-appointed attorney or public defender in Virginia? LAJC wants to hear from you.
“You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.” Many people have heard police officers make that promise, whether from TV or from personal experience.
But low-income Virginians who have been involved with the criminal legal system know that the reality is far different. Instead, Virginia says that people who can’t afford private lawyers will be charged later for “counsel fees” for the work of supposedly free public defenders or court-appointed counsel.
LAJC is working to change this problem in Virginia. If you or a loved one have experience with this issue, we need your help. Sharing your story will help us understand this problem better, and also fight for change.
Please tell us about your experience, by using this form. An LAJC staff member will follow up with you as soon as possible. (If you cannot use this form, share your story by calling 804-521-7306.)
This needs to change:
Over the last five years (FY2018 through FY2022), an average of over $30M in counsel fees were charged to poor people each year.
During the same period of time (FY2018 through FY2022), an average of over $13M in counsel fees were collected from poor people each year.
LAJC frequently sees cases where people get billed many thousands of dollars in counsel fees, in addition to debt for other kinds of court fees. For instance, one person owed $3,155 in counsel fees as part of an overall court-debt bill of $5,223. Another person owed $1,780 as part of a $3,257 overall bill. If a person chooses to appeal a conviction, counsel fees can increase by many thousands of dollars.
more about court-appointed counsel fees
The court-appointed counsel fee is the fee that people convicted of crimes or who have deferred dismissals are expected to pay, under Virginia law, to “reimburse” the state for the costs of providing the person an attorney in their criminal case. It can be one of the highest court costs levied against someone in Virginia.
Do public defenders and court-appointed attorneys receive the money directly?
No. Someone who is convicted or has a deferred disposition pays the counsel fee to the court; the state has already paid the attorneys. Public defenders are paid a salary from the general budget of Virginia. Court-appointed attorneys are paid by the court, in the amount assessed to their clients, but the court pays them regardless of whether the client is convicted (or whether the client pays the fee).
Why do I have to pay for an attorney I was appointed because I couldn’t afford one?
The United States Supreme Court ruled in Fuller v. Oregon that the state has a legitimate interest in getting paid back for providing counsel. But the court said that doing so was constitutional only if those who had the present or future ability to pay were required to pay for their attorney.
The Virginia Supreme Court looked specifically at court-appointed counsel fees, too. In Wicks v. Charlottesville, the court said that a constitutional right isn’t necessarily a “cost-free right” and found that the assessment of the fee, if and when someone can pay, was constitutional.
How can this recoupment scheme be challenged if the law says it is constitutional?
The way Virginia is collecting counsel fees currently is not constitutional. In Alexander v. Johnson, a Fourth Circuit case (a federal court area that includes Virginia), the court found that a constitutional court-appointed counsel recoupment scheme must:
1. Guarantee the fundamental right to counsel without too many barriers to getting an attorney;
2. Provide both notice that repayment is expected, and a meaningful opportunity to be heard;
3. Consider the person’s resources, finances, and hardships, if repayment is required to avoid repayment while the person remains poor;
4. Does not use more severe collection practices than those used for collecting a civil debt; and
5. Does not imprison someone – when repayment of the court-appointed counsel fee is a condition of work-release, parole, or probation – if nonpayment is due to poverty.
Many courts in Virginia appear to be violating some of these criteria. For that reason, one way or another, Virginia must do much better.
Why are we seeking to change this practice?
People directly impacted by these costs have told us how this fee has made them hesitant to request an attorney in the future; just as they cannot afford an attorney before the case starts, they cannot afford to pay for an attorney afterwards. They have also told us that because they cannot afford to pay the fee, interest and late fees will accrue, transforming them using their constitutional right into a penalty for their poverty. Everyone should have access to an attorney in their criminal case, and no one should be punished for not being able to afford one.
