Counsel Fees and Procedural Justice

Introduction

Imagine you are charged with a felony. You are indigent, so the judge appoints a lawyer to represent you. Several months later, you are convicted and sentenced to almost nine years in prison. To your surprise, however, you are also charged nearly $3,000 for your court-appointed lawyer—a cost you assumed the state would bear when it chose to prosecute you. The court did not consider your ability to pay when it imposed this fee. Once released from prison, you are homeless and unemployed, but this does not prevent the state from trying to collect your debt with interest, nor does it convince the trial judge to reduce or excuse these fees. You are trapped.

The predicament described above is neither hypothetical nor isolated. It is the story of Keith Nash, one of countless people caught in a spiral of debt for using the services of public defenders and other court-appointed counsel.¹ Counsel fees are a cost-shifting mechanism, allowing state budgets to keep pace with high incarceration rates by forcing defendants to subsidize their own prosecutions.² This model has grown increasingly popular, with forty-two states and the District of Columbia authorizing the collection of fees to fund their indigent defense systems.³ Ironically, the people least able to afford lawyers are often billed tens of thousands of dollars for their court-appointed counsel.⁴ By conservative estimates, eighty percent of defendants prosecuted in state courts qualify for a court-appointed lawyer.⁵

Counsel fees have been the subject of considerable litigation in state and federal courts, most often through challenges under the Sixth Amendment and the Equal Protection Clause. However, while legal scholars have long excoriated counsel fees for constitutional and policy reasons,⁶ litigation strategies have been largely ineffective at dislodging them.⁷ In this Essay, I argue that both practitioners and academics have overlooked a key source of constitutional rights that would render challenges to counsel fees more effective: procedural due process. It seems clear that wholesale challenges to counsel fee systems are unlikely to triumph, but focusing on the absence of judicial fact-finding about a defendant’s ability to pay would offer a more robust basis for future litigation.

This Essay proceeds in three parts. Part I sketches the history of counsel fee regimes, describing their genesis and policy mplications. Part II then surveys the body of Supreme Court precedent governing how counsel fees may be assessed and explains the Court’s treatment of challenges under the Sixth Amendment and the Equal Protection Clause. It also describes how legislatures and courts have interpreted and applied that precedent unevenly across jurisdictions. Finally, Part III advances an alternative litigation strategy rooted in procedural due process, one focused on challenging judicial determinations of indigency rather than the assessment of counsel fees in a vacuum. In doing so, this Essay articulates an under-analyzed approach to
mitigating the impact of counsel fees against unwilling participants in the criminal process.

I. Historical and Political Background

In the landmark case Gideon v. Wainwright, the Supreme Court emphasized that “every defendant stands equal before the law,” an ideal which “cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”⁸ Accordingly, it held that the right to counsel under the Sixth Amendment⁹ requires that a lawyer be appointed to represent criminal defendants who cannot afford to hire one.¹⁰ The Court later extended the right to court-appointed counsel to any defendant sentenced to prison, holding that “no indigent criminal defendant [may] be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.”¹¹ The effects of these rulings cannot be overstated; in the decade following Gideon, the number of public defender organizations more than quadrupled from 145 to 650 nationwide, radically increasing criminal defendants’ access to legal counsel.¹² But conspicuously absent from Gideon was any mention of how this newfound right should be funded and—more importantly—by whom.¹³

Significantly, the Court decided Gideon in 1963, years before the onset of mass incarceration.¹⁴ Its prescription for a right to counsel was designed for a very different era of criminal justice, one where the combined state and federal prison population did not consistently exceed one million people.¹⁵ Indeed, the War on Drugs and its associated tough-on-crime politics triggered an explosion in the U.S. prison population, which radically increased demand for the legal services of public defenders and other court- appointed counsel.¹⁶ Unsurprisingly, states struggled to pay for the vast number of lawyers required by the combination of Gideon’s constitutional mandate and growing numbers of criminal prosecutions.¹⁷

Confronted with this problem, most states devised a simple solution: shifting the cost of appointed counsel onto defendants themselves, the purported “consumers” of criminal justice resources.¹⁸ Modern counsel fee regimes take two general forms: contribution (where a court imposes a fixed sum at the beginning of a case when counsel is first appointed) and recoupment (where a court requires that a defendant pay their attorney’s fees at the end of a case).¹⁹ Today, most states²⁰ and the federal government²¹ have adopted either the contribution or recoupment model to fund their indigent defense systems. Some commentators have attributed this development to a neoliberal trend of shifting the costs of public services—such as legal defense—onto individuals rather than funding them through general revenue.²²

Although tough-on-crime politicians of varying political stripes undoubtedly spurred the proliferation of counsel fee regimes, it also bears acknowledging the complicity of the public defense establishment, which often sought to build credibility with politicians by supporting the introduction of counsel fees. In North Carolina, for example, the Commission on Indigent Defense Services proposed a copay system similar to Florida’s, which the state legislature swiftly enacted.²³ Likewise, public defense leaders in Ohio advanced an application fee proposal in order to demonstrate their commitment to fiscal responsibility.²⁴ To be sure, the public defense community’s counsel fee proposals did not stem from hostility towards defendants, but often represented a realpolitik strategy to conserve resources. As one Minnesota public defender noted, “It would be much better if the work of the court system could be paid by general revenues. But this year that money was not there, so this system was put in place to keep from cutting the [budget of] public defenders by $10 million.”²⁵ The purpose of recounting this history is not to impugn the character of public defenders, many of whom work tirelessly on behalf of their clients, but rather to emphasize that counsel fees operate at the unstable nexus between individual rights and practical budgetary considerations.²⁶

Counsel fee systems inflict considerable harm on indigent people, their families, and their communities. To begin with, the amounts charged to defendants are often exorbitant. In Iowa, counsel fee assessments typically range from several hundred dollars to one thousand dollars.²⁷ In Oklahoma, counsel fees in felony cases total $500 for defendants who plead guilty and $1,000 for defendants who proceed to trial.²⁸ Nor are these burdens equitably distributed. In Virginia, for example, counsel fees average $590 per case in the state’s poorest counties, compared to an average of $370 per case in the state’s wealthiest counties.²⁹ For people with limited financial resources—those who request court-appointed counsel precisely because they cannot afford to hire a private attorney—counsel fees can be debilitating. Formerly incarcerated people often find themselves prioritizing court debt over basic necessities such as food, clothing, and housing.³⁰ Failure to pay counsel fees can also result in the revocation of probation and parole, which can make debtors ineligible for benefits such as food stamps, Social Security, and housing assistance.³¹ This constellation of financial and legal consequences creates potent barriers to successful reentry into society after incarceration.³²

Considering the acute hardships that counsel fee regimes create for indigent people, one might expect that they at least raise substantial revenue for the states that use them. Not so. Counsel fee collection is notoriously inefficient, with one study showing that states spend an average of $0.41 for every dollar recovered in counsel fees.³³ While this might appear to be a fair return on investment, consider that the Internal Revenue Service spends roughly $0.34 for every hundred dollars collected from taxpayers.³⁴ The administrative expense is especially wasteful in states that struggle to recover counsel fees at all. For example, Florida, Texas, and New Mexico amassed nearly $1.9 billion in uncollected debt between 2012 and 2018.³⁵ Evidence from Iowa tells a similar story; in recent years, state officials collected no more than 3.2% of assessed counsel fees.³⁶ Such poor recovery rates suggest that, even when counsel fees do generate revenue, they are simply not worth their immense human costs.

II. Doctrinal Framework

Long described as the “master key” that unlocks a defendant’s other rights,³⁷ the Sixth Amendment right to counsel has a fraught and complex history.³⁸ In Gideon v. Wainwright, the Supreme Court concluded that the Sixth Amendment mandates the appointment of counsel for indigent criminal defendants who cannot afford to hire a lawyer.³⁹ The Court later required the appointment of counsel whenever a court imposes a term of incarceration⁴⁰ and extended the right to counsel to all “critical stage[s]” of the criminal proceeding,⁴¹ initial direct appeals,⁴² and probation revocation hearings.⁴³ But Gideon did not explicitly provide the right to free counsel,⁴⁴ which has resulted in states passing the cost of appointed counsel directly onto defendants. Despite the volume of litigation challenging counsel fee systems, however, there is scant Supreme Court precedent regarding their constitutionality. To date, James v. Strange⁴⁵ and Fuller v. Oregon⁴⁶ are the only two cases in which the Court has directly entertained challenges to counsel fee systems, and both were decided over fifty years ago.

In James v. Strange, the Court considered the legality of Kansas’s counsel fee system, which allowed the state to recover the cost of court-appointed counsel from a defendant.⁴⁷ If the defendant failed to repay their debt, a judgment would be entered against them for the unpaid balance.⁴⁸ Crucially, however, the controlling statute did not afford indigent criminal defendants almost any of the exemptions provided under Kansas law for civil judgment debtors.⁴⁹ Mr. Strange, who was subject to counsel fees under the statute, sued in federal court, arguing that the law unconstitutionally burdened his right to counsel under the Sixth Amendment.⁵⁰ However, a unanimous Court swiftly disposed of that argument, observing that Kansas enacted laws to provide counsel to indigent defendants, so there was “certainly no denial of the right to counsel in the strictest sense.”⁵¹ While it did not rule out the possibility that “statutory obligations for repayment impermissibly deter the exercise of this right,” it declined to reach that question.⁵²

Instead, the Court voided the statute as unconstitutional under the Equal Protection Clause of the Fourteenth Amendment,⁵³ holding that it discriminated against indigent defendants by depriving them of the protective exemptions that applied to civil debtors, specifically restrictions on wage garnishment.⁵⁴ It concluded that, while all indigent defendants are treated alike under the Kansas statute, “to impose these harsh conditions on a class of debtors who were provided counsel as required by the Constitution is to practice . . . a discrimination which the Equal Protection Clause proscribes.”⁵⁵ However, the Court’s holding was narrow. It stressed that recoupment statutes “may betoken legitimate state interests,”⁵⁶ observing that Kansas’s system “appears to be alone” in its asymmetric treatment of criminal and civil debtors.⁵⁷ Had the Kansas statute simply provided an exemption system that applied symmetrically to all debtors, the Court likely would have upheld it.

Two years later, the Court considered a challenge to Oregon’s recoupment scheme in Fuller v. Oregon.⁵⁸ Mr. Fuller was sentenced to five years of probation, conditioned on his repayment of the cost of his court-appointed attorney.⁵⁹ On appeal to the Supreme Court, Mr. Fuller argued that this requirement violated his constitutional rights in two ways. First, attempting to replicate the outcome in James, he suggested that the assessment of counsel fees violated the Equal Protection Clause.⁶⁰ Second, he argued that the statute chilled his Sixth Amendment right to counsel because a repayment obligation might impel a defendant to decline a court-appointed attorney.⁶¹ The Court found both arguments unpersuasive.

As for Mr. Fuller’s equal protection claim, the Court distinguished the Oregon statute from the statute in James, noting that Oregon defendants were entitled to all the same protections as civil debtors.⁶² Additionally, to the extent that the law distinguished between people convicted of crimes (who were required to pay counsel fees) and those not convicted or whose convictions were later reversed (who were not required to pay counsel fees), the Court was untroubled.⁶³ It found this classification “wholly noninvidious” because a defendant who is never convicted—or whose conviction is overturned on appeal—“has been seriously imposed upon by society without any conclusive demonstration that he is criminally culpable.”⁶⁴ Oregon could therefore release such defendants from an obligation to reimburse the state for the cost of appointing counsel.⁶⁵

Mr. Fuller’s Sixth Amendment claim fared no better. The Court found that, even if the Oregon statute imposed substantial costs on indigent defendants, it did not formally impede the appointment of counsel.⁶⁶ It also soundly rejected Mr. Fuller’s “chilling effect” argument: “The fact that an indigent who accepts state-appointed legal representation knows that he might someday be required to repay the costs of these services in no way affects his eligibility to obtain counsel.”⁶⁷ It further observed that the law was narrowly tailored to its goal of collecting counsel fees because it did not require repayment from those who remain indigent or for whom repayment would create “manifest hardship.”⁶⁸ In other contexts, the Court has voided attempts to burden procedural rights as unconstitutional.⁶⁹ However, the Fuller Court found that principle inapplicable, concluding that Oregon’s statute was not like laws whose provisions “had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them.”⁷⁰ In its view, the statute “merely provides that a convicted person who later becomes able to pay for his counsel may be required to do so.”⁷¹

In the decades following James and Fuller, legal scholars have expended much effort in evaluating their implications. Some have persistently argued that counsel fees violate the Sixth Amendment even under Fuller’s relatively narrow conception of the right to counsel.⁷² Those taking this position have contended that counsel fee systems are unconstitutional using the same “chilling effect” argument raised and rejected in Fuller itself. Since defendants know they may be required to repay the cost of their court-appointed attorney, they argue, contribution and recoupment schemes burden the Sixth Amendment by discouraging defendants from exercising their right to counsel.⁷³ Scholars have also expressed sustained optimism about an equal protection approach to analyzing counsel fees, despite the James Court’s qualified and fact-contingent endorsement of that theory.⁷⁴

This variety of theoretical approaches mirrors the variety of forms that counsel fees take. Such regimes differ across states in whether they apply to defendants sentenced to prison, who pays the fees, to whom payment is made, whether payment may be a condition of probation or parole, and how judgments to pay are enforced, among other factors.⁷⁵ Perhaps most importantly, they diverge on whether judges must consider a defendant’s ability to pay.⁷⁶ But even the phrase “ability to pay” has proven slippery:

The pre-imposition “ability to pay” may refer only to a present ability to pay or it may encompass the court’s predictions about the defendant’s job prospects, even prospects projected after a period of incarceration. Many jurisdictions refer vaguely to present or future ability to pay, some presume that anyone sentenced to prison does not have the ability to pay, and at least one jurisdiction restricts the court to assessing ability to pay for the six months following conviction.⁷⁷

Courts have been equally divided. In states that require judges to consider a defendant’s financial circumstances, courts disagree on whether they must do so before imposing counsel fees, or whether they may do so at some later stage.⁷⁸ However, even in states that theoretically oblige courts to consider a defendant’s ability to pay before imposing counsel fees, judges often fail to engage in the requisite fact-finding as a matter of practice. According to one study, only eighteen percent of cases involved judges conducting formal ability-to-pay hearings before imposing recoupment obligations.⁷⁹ Why this happens is uncertain, but scholars have suggested that the cost-shifting purpose behind counsel fees creates “monetary pressures” that make judges and even defense counsel more likely to acquiesce to their imposition.⁸⁰ Yet when courts impose counsel fees without considering a defendant’s financial resources, indigent people are subjected to onerous and, in many cases, unbearable costs.

III. Litigating Through Procedural Due Process

Despite the body of academic literature suggesting that counsel fee regimes violate the Sixth Amendment and the Equal Protection Clause, such regimes persist in most states.⁸¹ This fact suggests that a different litigation strategy is required. Rather than challenging counsel fees as such, litigants should instead challenge the lack of procedural due process accompanying their assessment by courts. As Professor Helen Anderson has put it, “The essence of the problem is procedural: recoupment is unconstitutional where there is no finding of ability to pay, fee awards are not supported, or there is no notice and opportunity to be heard on these issues.”⁸² Providing defendants a forum in which to raise their lack of resources as a defense to counsel fee assessment would mitigate many of the harms associated with such fees for those least able to afford them.

This Essay is not the first to articulate a procedural approach. But even in the limited scholarship addressing procedural due process as it relates to counsel fees, that option has received only cursory treatment, frequently regarded as ancillary to arguments stemming from the Sixth Amendment and the Equal Protection Clause.⁸³ This failure to take procedural due process seriously on its own terms is a mistake. The procedural approach is not only viable but would be more effective than strategies myopically focused on the right to counsel and equal protection.

The Fifth and Fourteenth Amendments provide that neither the federal government nor the states may deprive people of “life, liberty, or property” without “due process of law.”⁸⁴ Procedural due process is concerned above all with accuracy, protecting people “not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.”⁸⁵ The Court has read the Due Process Clause to require specific procedural protections in different contexts by balancing the private interest affected by the government action, the risk of erroneous deprivation of that interest, and the government’s interest, including any fiscal or administrative burdens.⁸⁶ While this Essay does not endeavor to define the precise contours of due process in the counsel fees context, a defendant would at minimum be entitled to a hearing in which they could explain their inability to pay.⁸⁷

Scholars advocating for procedural due process challenges to counsel fee systems often fixate on the Court’s decision in Bearden v. Georgia,⁸⁸ interpreting its holding to require judicial fact-finding about a defendant’s ability to pay.⁸⁹ In Bearden, the trial court sentenced the defendant to three years of probation as part of a deferred disposition, conditioned on his payment of $750 in fines and restitution.⁹⁰ He ultimately failed to pay and the court revoked his probation, sentencing him to serve the remaining probationary period in prison.⁹¹ The Supreme Court reversed. Writing for the majority, Justice Sandra Day O’Connor began by noting the Court’s “sensitiv[ity] to the treatment of indigents in our criminal justice system,” which she associated with a line of cases in which “[d]ue process and equal protection principles converge.”⁹² The Court held that, where a probationer has made reasonable efforts to pay a fine or restitution but cannot do so, “it is fundamentally unfair to revoke probation automatically.”⁹³ Rather, the Court required an inquiry “into the reasons for the failure to pay.”⁹⁴ While the Court muddied its procedural analysis by linking it to what would ordinarily be an independent equal protection analysis, Bearden indisputably required “equal process” vis-à-vis consideration of a defendant’s ability to pay, a holding which some have argued logically extends to the counsel fee context.⁹⁵

However, closer scrutiny suggests that Bearden is not the panacea that advocates have imagined. In Bearden, the trial court ordered the defendant to pay fines and restitution (which are punitive),⁹⁶ as opposed to counsel fees (which are administrative). The status of fines and restitution as penological was central to the outcome in Bearden, with the Court referring multiple times to the state’s interest in “punishment and deterrence.”⁹⁷ For this reason, many scholars and courts alike have concluded that Bearden does not plainly apply to administrative court costs and fees in the first instance.⁹⁸ The Bearden Court itself signaled its aversion to extending its holding in this way, clarifying that “nothing in our decision today precludes imprisonment for willful refusal to pay a fine or court costs.”⁹⁹ In a later case, the Court observed that it did not consider Bearden applicable to user fees where criminal punishment was not at issue.¹⁰⁰ These facts suggest that Bearden alone cannot provide a constitutionally sound anchor for challenges to counsel fee systems. In that sense, much of the scholarship about procedural due process that has fixated on Bearden misses the mark.

However, while Bearden may not require procedural due process prior to the imposition of counsel fees, a proper reading of Fuller certainly does. In Fuller, the Court distinguished the Oregon statute before it from the Kansas law struck down in James by focusing on provisions shielding those unable to pay from the collection of counsel fees. For instance, the Court noted that the recoupment statute was “quite clearly directed only at those convicted defendants . . . who subsequently gain the ability to pay the expenses of legal representation”¹⁰¹ because “a court may not order a convicted person to pay these expenses unless he is or will be able to pay them.”¹⁰² The corollary to these observations is clear: where the procedural safeguards that existed in the Oregon statute are absent—that is, where a court imposes counsel fees without inquiring into a defendant’s ability to pay—due process has been violated.¹⁰³ To the extent that procedural due process is aimed at protecting people from unjustified deprivations of life, liberty, and property, erroneous orders are bound to occur when there is no pre-imposition analysis of a defendant’s ability to pay. Fuller clarifies “that certain procedural protections are essential to the constitutionality of fee-recoupment statutes, even if there is no absolute substantive prohibition on their implementation.”¹⁰⁴ Those safeguards include, at minimum, an opportunity to be heard before the imposition or collection of counsel fees,¹⁰⁵ an argument that litigants should raise in challenges to counsel fee regimes that do not satisfy Fuller’s requirements.

The procedural option offers several distinct advantages compared to more traditional strategies under the Sixth Amendment and the Equal Protection Clause. As Justice O’Connor has observed, “a defendant’s level of financial resources is a point on a spectrum rather than a classification,” and fitting ability to pay into a traditional equal protection paradigm “is a task too Procrustean to be rationally accomplished.”¹⁰⁶ Procedural due process is less unwieldy than other analytical modes because it requires a closer, more individualized analysis of a defendant’s resources and circumstances than the clumsy “indigent-or-not” binary permits. In that sense, procedural challenges are narrowly tailored because they propose limiting counsel fees to the subset of defendants who cannot pay the thousands of dollars often demanded by the private bar, but who could pay a smaller sum.¹⁰⁷ A practical benefit of this approach is that judges who are apprehensive about straining state budgets by striking down a state’s entire system of indigent defense funding may be more amenable to narrow procedural challenges.

Strategies rooted in procedural due process are also more likely to prevail because they dovetail with the modern Court’s approach to resolving poverty-based challenges to features of the criminal justice system. In its decisions regarding legal financial obligations, the Court has increasingly “emphasized procedural due process as the appropriate framework with which to approach the criminal legal system’s potential to disparately impact poor defendants.”¹⁰⁸ As a result, “process-based values do much of the work in identifying and addressing problems with the criminalization of poverty.”¹⁰⁹ For better or worse, procedural due process appears to be the language in which the federal courts have become conversant. Progressive litigation strategies must rise to meet that reality.

Conclusion

When Clarence Gideon appealed his conviction to the Supreme Court claiming that his right to counsel under the Sixth Amendment had been violated, he “was calling for one of those great occasions in legal history. He was asking the Supreme Court to change its mind.”¹¹⁰ And change its mind the Court did. For over sixty years, Gideon v. Wainwright has ensured the right to counsel for indigent defendants, perhaps the most radical expansion of procedural rights in the history of American criminal law.¹¹¹ However, counsel fee regimes threaten that sacred promise by subjecting society’s poorest members to arbitrary, Sisyphean burdens. Tearing out these systems root and stem under the Sixth Amendment or the Equal Protection Clause may not be possible, but procedural due process challenges offer a path forward for those unable to pay. If the “essence of the problem is procedural,” as Professor Anderson suggests,¹¹² it is only fitting that the essence of the solution should be procedural too.

1. Beth A. Colgan, Paying for Gideon, 99 IOWA L. REV. 1929, 1935–39 (2014); see State v. Nash, 159 Wash. App. 1015, at *1 (Wash. Ct. App. 2011) (unpublished) (affirming the trial court’s refusal to grant remission of counsel fees to Mr. Nash). ↩︎
2. John D. King, Privatizing Criminal Procedure, 107 Geo. L.J. 561, 568 (2019). ↩︎
3. Marea Beeman, Kellianne Elliott, Rosalie Joy, Elizabeth Allen & Michael Mrozinski, Nat’l Legal Aid & Def. Ass’n, At What Cost? Findings from an Examination into the Imposition of Public Defense System Fees 1 (2002), https://www.nlada.org/sites/default/files/NLADA_At_What_Cost.pdf [https://perma.cc/EG75-J2K8]. ↩︎
4. Id. at 3. ↩︎
5. Id. ↩︎
6. See, e.g., Neil L. Sobol, Charging the Poor: Criminal Justice Debt & Modern-Day Debtors’ Prisons, 75 Md. L. Rev. 486, 516 (2016) (observing that people unable to escape criminal justice debt “become enmeshed in what often seems to be a never-ending poverty cycle”); Helen A. Anderson, Penalizing Poverty: Making Criminal Defendants Pay for Their Court-Appointed Counsel Through Recoupment and Contribution, 42 U. Mich. J.L. Reform 323, 357 (2009) (arguing that counsel fees unconstitutionally burden the right to counsel under the Sixth Amendment and violate both the Equal Protection and Due Process Clauses); Stanislaw Krawiecki, Forced to Play and Forced to Pay: The Indigent Counsel Fee in Massachusetts as a Cost of Being Charged with a Crime, 18 U. Mass. L. Rev. 200, 205 (2023) (arguing that Massachusetts’s counsel fee regime chills the right to counsel and is “contrary to the principle of presumption of innocence”). ↩︎
7. See, e.g., Fuller v. Oregon, 417 U.S. 40, 46–48 (1974) (holding that Oregon’s recoupment scheme violated neither the Equal Protection Clause nor the Sixth Amendment); State v. Ellis, 167 P.3d 896, 900 (Mont. 2007) (holding that Montana’s system did not violate the Equal Protection Clause); State v. Albert, 899 P.2d 103, 112 (Alaska 1995) (holding that Alaska’s system did not violate the Sixth Amendment); Espinoza v. Superior Court, 804 P.2d 90, 93 (Ariz. 1991) (holding that Arizona’s system did not violate the Sixth and Fourteenth Amendments). ↩︎
8. 372 U.S. 335, 344 (1963). ↩︎
9. See U.S. Const. amend. VI (“In all Criminal Prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”). ↩︎
10. Gideon, 372 U.S. at 344. See generally Anthony Lewis, Gideon’s Trumpet (1989) (describing the story behind Gideon and the case’s broader significance). ↩︎
11. Scott v. Illinois, 440 U.S. 367, 374 (1979). ↩︎
12. Sara Mayeux, What Gideon Did, 116 Colum. L. Rev. 15, 22 (2016). ↩︎
13. King, supra note 2, at 563 (“The Supreme Court in Gideon recognized a constitutional obligation on states to provide counsel . . . but it did not explain how states are to pay for this requirement.”). ↩︎
14. See John F. Pfaff, Waylaid by a Metaphor: A Deeply Problematic Account of Prison Growth, 111 Mich. L. Rev. 1087, 1087 (2013) (reviewing Ernest Drucker, A Plague OF Prisons: The Epidemiology of Mass Incarceration in America (2011)) (noting that the U.S. incarceration rate surged beginning in the 1970s). ↩︎
15. See Ashley Nellis, Sent’g Project, Mass Incarceration Trends 2 (2024), https://www.sentencingproject.org/app/uploads/2024/05/Mass-Incarceration-Trends.pdf [https://perma.cc/SQV9-D3JM] (showing that the state and federal prison population has exceeded one million people every year since 1994). ↩︎
16. King, supra note 2, at 570–71. See generally Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colrblindness (2010) (tracing the history of mass incarceration and its relationship to the War on Drugs). ↩︎
17. King, supra note 2, at 570–71. ↩︎
18. Ronald F. Wright & Wayne A. Logan, The Political Economy of Application Fees for Indigent Criminal Defense, 47 Wm. & Mary L. Rev. 2045, 2051–52 (2006). ↩︎
19. Id. at 2052. ↩︎
20. Beeman, Elliott, Joy, Allen, & Mrozinski, supra note 3, at 1; see id. at 82–96 (charting the counsel fee systems of each state). ↩︎
21. See 18 U.S.C. § 3006A(f) (“Whenever the United States magistrate judge or the court finds that funds are available for payment from or on behalf of a [defendant] furnished representation, it may authorize or direct that such funds be paid to the appointed attorney . . . .”). ↩︎
22. See, e.g., Wright & Logan, supra note 18, at 2051; Anderson, supra note 6, at 374; see also Darryl K. Brown, Free Market Criminal Justice: How Democracy and Laissez Faire Undermine the Rule of Law 62 (2016) (describing the growing privatization of the criminal justice system—including indigent defense—since the 1970s); Margaret H. Lemos, Privatizing Public Litigation, 104 Geo. L.J. 515, 517–19 (2016) (observing that the privatization of government litigation functions dovetailed with broader trends of privatization in the United States). ↩︎
23. Wright & Logan, supra note 18, at 2056–58. ↩︎
24. Id. at 2060. ↩︎
25. Id. (alteration in original). ↩︎
26. Interestingly, while public defenders largely disfavor the collection of counsel fees, public defense leaders support them at higher rates than staff and supervising attorneys. See Jennifer A. Tallon, Sruthi Naraharisetti, Viet Nguyen, Lisa Bailey Vavonese & Michael Mrozinski, Ctf. For Just. Innovation, Paying for the Right To Counsel: National Survey Findings on The Practice of Charging Public Defense Fees to Clients 12 (2025), https://www.innovatingjustice.org/sites/default/files/media/document/2025/Defender%20Fees%20
    Report_Template_01212025.pdf [https://perma.cc/YM9K-6RYB] (finding that 62% of public defense leaders do not support the use of counsel fees, compared to 82% of staff attorneys and 74% of supervising attorneys). ↩︎
27. Beeman, Elliott, Joy, Allen, & Mrozinski, supra note 3, at 51. ↩︎
28. Id. ↩︎
29. Pat Levy-Lavelle, Legal Aid Just. Ctr., Can’t Afford an Attorney? Virginia Law Tells Poor People to Pay Anyway 6 (2023), https://www.justice4all.org/wp-content/uploads/2023/12/Cant-Afford-an-Attorney.pdf [https://perma.cc/A2C8-EHVY]. ↩︎
30. Sobol, supra note 6, at 520. ↩︎
31. Id. ↩︎
32. Matthew Menendez, Michael F. Crowley, Lauren-Brooke Eisen & Noah Atchison, Brennan Ctr. for Just., The Steep Costs of Criminal Justice Fines and Fees: A Fiscal Analysis of Three States and Ten Counties 6 (2019), https://www.brennancenter.org/media/5290/download/2019_10_Fees%26Fines_Final.pdf?inline=1
    [https://perma.cc/G78L-SFY6]. ↩︎
33. Id. at 9. ↩︎
34. Id. ↩︎
35. Id. at 10. ↩︎
36. Beeman, Elliott, Joy, Allen, & Mrozinski, supra note 3, at 7. ↩︎
37. See Yale Kamisar, The Right to Counsel and the Fourteenth Amendment: A Dialogue on “The Most Pervasive Right” of an Accused, 30 U. Chi. L. REV. 1, 7 (1962); see also Bennett L. Gershman, Judicial Interference with Effective Assistance of Counsel, 31 Pace L. Rev. 560, 560 (2011) (“[T]he right to counsel is by far the most important [possessed by the accused] because it affects the ability to assert all other rights.”). ↩︎
38. See Lewis, supra note 10, at 107–22 (describing the pre-Gideon history of the right to counsel); John D. King, Beyond “Life and Liberty”: The Evolving Right to Counsel, 48 Harv. C.R.-C.L. Rev. 1, 6–15 (2013) (considering how the right to counsel evolved from the Founding through the twentieth century). See generally Shaun Ossei-Owusu, The Sixth Amendment Façade: The Racial Evolution of the Right to Counsel, 167 U. Pa. L. Rev. 1161 (2019) (analyzing the history of the right to counsel vis-à-vis race). ↩︎
39. 372 U.S. 335, 344 (1963). Crucially, the Court has never extended Gideon to the civil context. See Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 31–32 (1981) (declining to find a right to counsel in termination of parental rights proceedings); see also Benjamin H. Barton, Against Civil Gideon (and for Pro Se Court Reform), 62 Fla. L Rev. 1227, 1231–32 (2010) (arguing that such an extension of Gideon is “very unlikely to occur”). ↩︎
40. Scott v. Illinois, 440 U.S. 367, 374 (1979). ↩︎
41. Rothgery v. Gillespie Cnty., 554 U.S. 191, 212 (2008). ↩︎
42. Douglas v. California, 372 U.S. 353, 355 (1963). But see Ross v. Moffitt, 417 U.S. 600, 612 (1974) (declining to extend the equal protection rationale in Douglas to cover subsequent, discretionary appeals). ↩︎
43. Mempa v. Rhay, 389 U.S. 128, 137 (1967). ↩︎
44. King, supra note 2, at 567. ↩︎
45. 407 U.S. 128 (1972). ↩︎
46. 417 U.S. 40 (1974). ↩︎
47. 407 U.S. at 128–30. ↩︎
48. Id. at 131. ↩︎
49. Id. ↩︎
50. Brief of Appellee at 2, James, 407 U.S. 128 (No. 71-11). ↩︎
51. James, 407 U.S. at 134. ↩︎
52. Id. ↩︎
53. U.S. CONST. amend. XIV, § 1 (“No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”). ↩︎
54. James, 407 U.S. at 135, 142. ↩︎
55. Id. at 140–41 (emphasis added). ↩︎
56. Id. at 141. ↩︎
57. Id. at 140. ↩︎
58. 417 U.S. 40 (1974). ↩︎
59. Id. at 41–42. ↩︎
60. Id. at 46–47. ↩︎
61. Id. at 51. ↩︎
62. Id. at 47–48. ↩︎
63. Id. at 48–50. ↩︎
64. Id. at 49–50. ↩︎
65. Id. at 50. ↩︎
66. Id. at 52. ↩︎
67. Id. at 53. ↩︎
68. Id. ↩︎
69. See, e.g., United States v. Jackson, 390 U.S. 570, 571–72 (1968) (invalidating the death penalty provision of the Federal Kidnapping Act as an unconstitutional burden on the right to a jury trial); Blackledge v. Perry, 417 U.S. 21, 28–29 (1974) (holding that increasing criminal charges against a defendant after they exercise their right to a de novo jury trial violates due process). ↩︎
70. Fuller, 417 U.S. at 54 (quoting Jackson, 390 U.S. at 581). ↩︎
71. Id. ↩︎
72. See, e.g., Colgan, supra note 1, at 1945 (“Fuller supports the conclusion that imposing a burden on a person to pay what he cannot afford does indeed violate the Sixth Amendment.”). ↩︎
73. See, e.g., Anderson, supra note 6, at 359–61 (“[W]hen jurisdictions authorize imposition of the obligation without any determination of ability to pay, and when they do so without notice or hearing to dispute the amount and ability to pay, the potential chilling effect becomes substantially greater and therefore unconstitutional.”). But see King, supra note 2, at 564 (noting a dearth of empirical evidence to support the “chilling effect” theory (citing Wright & Logan, supra note 18, at 2078–81)). ↩︎
74. See, e.g., Anderson, supra note 6, at 365–67 (“Justice Marshall’s equal protection argument is especially strong when applied to recoupment schemes that do not observe the safeguards of the statute at issue in Fuller, namely pre-imposition determination of ability to pay, notice, and the opportunity to be heard.”). ↩︎
75. Id. at 330. ↩︎
76. See Colgan, supra note 1, at 1929–30 (“[I]n many jurisdictions, consideration of whether one has the ability to pay for counsel is essentially meaningless, whereas in other jurisdictions, courts are required to impose recoupment without any such consideration at all.”). ↩︎
77. Anderson, supra note 6, at 341–42 (footnotes omitted). ↩︎
78. Contrast, e.g., State v. Morgan, 789 A.2d 928, 931 (Vt. 2001) (reading Fuller to require that courts make a finding about whether the defendant will be able to pay counsel fees), with State v. Albert, 899 P.2d 103, 111 (Alaska 1995) (“[A] determination of ability to pay prior to entry of a recoupment judgment is not constitutionally required.”), and State v. Beasley, 580 So. 2d 139, 142 (Fla. 1991) (“[A] trial court is not required to determine a convicted criminal defendant’s ability to
    pay statutorily mandated costs prior to assessing costs . . . .”). ↩︎
79. Tallon et al., supra note 26, at 14. ↩︎
80. Colgan, supra note 1, at 1932. ↩︎
81. Beeman, Elliott, Joy, Allen & Mrozinski, supra note 3, at 1. ↩︎
82. Anderson, supra note 6, at 357. ↩︎
83. See, e.g., id. at 357–67 (focusing primarily on the Sixth Amendment and the Equal Protection Clause, with roughly one page dedicated to procedural due process); Hannah R. Gourdie, Note, The Guiding Hand of Counsel, for a Price: Juvenile Public Defender Fees and Their Effects, 62 Wm. & Mary L. Rev. 999, 1016, 1019–32 (2021) (arguing that courts should provide “stringent due process protections” for children required to pay counsel fees, but primarily exploring the Sixth Amendment
    “chilling effect” theory); Kate Levine, Note, If You Cannot Afford a Lawyer: Assessing the Constitutionality of Massachusetts’s Reimbursement Statute, 42 Harv. C.R.-C.L. L. Rev. 191, 213–21 (2007) (focusing on the Sixth Amendment and considering procedural due process only insofar as it relates to the possibility of community service as an alternative to paying counsel fees). ↩︎
84. U.S. Const. amend. V; id. amend. XIV, § 1. ↩︎
85. Carey v. Piphus, 435 U.S. 247, 259 (1978) (emphasis added). ↩︎
86. Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976); see also Nelson v. Colorado, 137 S. Ct. 1249, 1255 (2017) (applying the Mathews balancing test to court fines and fees rather than the more restrictive “fundamental fairness” inquiry under Medina v. California, 505 U.S. 437, 445 (1992)). ↩︎
87. See Grannis v. Ordean, 234 U.S. 385, 394 (1914) (“The fundamental requisite of due process of law is the opportunity to be heard.”). ↩︎
88. 461 U.S. 660 (1983). ↩︎
89. See, e.g., Brandon L. Garrett, Wealth, Equal Protection, and Due Process, 61 Wm. & Mary L. Rev. 397, 434–35 (2019) (“Fines and fees-related litigation has targeted courts that impose other consequences without considering ability to pay . . . . [M]any of these challenged schemes seem obviously violative of Bearden and the equal process case law described.” (footnote omitted)); Louis Fisher, Criminal Justice User Fees and the Procedural Aspect of Equal Justice, 133 Harv. L. Rev. F. 112, 138 (2020) (“Bearden and its progeny make clear that the protection of fundamental criminal procedure rights mandates extra predeprivation procedures, such as consideration of ability to pay . . . .”); Tyler Smoot, Punishing the Poor: Challenging Carceral Debt Practices Under Bearden and M.L.B., 23 U. Pa. J. Const. L. 1086, 1105–08 (2021) (arguing that carceral debt enforcement without a hearing on one’s ability to pay “clearly violates Equal Protection and Due Process under Bearden”). ↩︎
90. Bearden, 461 U.S. at 662. ↩︎
91. Id. at 663. ↩︎
92. Id. at 664–65. ↩︎
93. Id. at 668 (emphasis added). ↩︎
94. Id. at 672. ↩︎
95. See Garrett, supra note 89, at 434–35; Alexander v. Johnson, 742 F.2d 117, 124 (4th Cir. 1984) (holding that a combination of James, Fuller, and Bearden require notice and a hearing regarding a defendant’s ability to pay counsel fees). ↩︎
96. Bearden, 461 U.S. at 662. ↩︎
97. Id. at 671–72, 673 n.12, 674. ↩︎
98. See Jones v. Governor of Fla., 975 F.3d 1016, 1032 (11th Cir. 2020) (“The Supreme Court has never extended Bearden beyond the context of poverty-based imprisonment.”); Mendoza v. Strickler, 51 F.4th 346, 357 (9th Cir. 2022) (observing that the line of cases culminating in Bearden “addresses only the limitations on imposing subsequent or additional incarceration on those unable to pay their fines”); Darryl K. Brown, The Case for a Trial Fee: What Money Can Buy in Criminal Process, 107 Calif. L. Rev. 1415, 1433 n.75 (2019) (suggesting that Bearden may be inapplicable to court costs and fees as opposed to fines). ↩︎
99. Bearden, 461 U.S. at 668 (quoting Williams v. Illinois, 399 U.S. 235, 242 n.19 (1970)). ↩︎
100. Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 461 n.* (1988). Although this case dealt with user fees in the context of public-school transportation rather than counsel fees, id. at 452, the administrative nature of both fee types suggests that this precedent is relevant to the Court’s position on counsel fees after Bearden. ↩︎
101. Fuller v. Oregon, 417 U.S. 40, 46 (1974). ↩︎
102. Id. at 45 (internal quotation marks omitted) (citation omitted). ↩︎
103. Cf. Andrew v. White, 145 S. Ct. 75, 81 (2025) (per curiam) (observing in the federal habeas context that, where the Court relies on a legal principle in deciding a case, such reliance constitutes a holding of the Court). ↩︎
104. Fisher, supra note 89, at 121. ↩︎
105. See supra note 87 and accompanying text. ↩︎
106. Bearden v. Georgia, 461 U.S. 660, 666 n.8 (1983) (internal quotation marks omitted) (citation omitted). ↩︎
107. An obvious objection to the procedural approach is that it may create anomalous situations in which a defendant is indigent enough to qualify for court-appointed counsel, but not indigent enough to be exempt from counsel fees. Fair enough, but it seems intuitively better to protect the most financially vulnerable defendants from onerous debt than to protect no one at all. As the analysis above makes clear, a more categorical litigation approach simply does not work. See supra Part II. That said, the elimination of counsel fees through state legislation would be an effective means of achieving the desired categorical result. See, e.g., Act of Sept. 18, 2020, ch. 92, §§ 37–38, 62, 2020 Cal. Stat. 2126, 2159–60, 2195 (abolishing the collection of counsel fees in California and voiding all outstanding balances). ↩︎
108. Monica Bell, Stephanie Garlock & Alexander Nabavi-Noori, Toward a Demosprudence of Poverty, 69 Duke L.J. 1473, 1479 (2020). ↩︎
109. Id. at 1500. ↩︎
110. Lewis, supra note 10, at 11. ↩︎
111. See Justin F. Marceau, Gideon’s Shadow, 122 Yale L.J. 2482, 2486 (2013) (describing Gideon as creating “a right without rival”); Sara Mayeux, Free Justice: A History of the Public Defender in Twentieth-Century America 2 (2020) (“Today, public defenders form part of the American way of life in the literal sense. There are thousands of public defenders all around the country, and millions of Americans each year rely on them for legal advice and courtroom advocacy.”). ↩︎
112. Anderson, supra note 6, at 357. ↩︎