COURT-APPOINTED COUNSEL FEE
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.
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).
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.
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.
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.