“If you cannot afford an attorney one will be provided at State expense.” True or False?


The 6th Amendment to the United States Constitution provides: "in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." This right extends to those who do not have the necessary resources to privately retain an attorney. In Gideon v. Wainwright, 372 U.S. 335 (1963) the United States Supreme Court held: "in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided." They then concluded that even a State court defendant has the right to the appointment and assistance of counsel even if he does not have the financial ability to hire his own. An individual arrested for a criminal offense is also advised, at a minimum as follows: "You have the right to remain silent, anything you say can and will be used against you in a court of law, you have the right to an attorney and to have one present during any questioning, if you cannot afford an attorney one will be provided at State expense." This is commonly referred to as the "Miranda warning" made popular by the United States Supreme Court's 1969 decision in Miranda v. Arizona.

It would make sense that an attorney being provided at "State expense" means just that, a free attorney. In the federal criminal "justice" system, defendants do in fact receive legal representation at no cost to themselves. An attorney at "government expense" means just that . . . a free attorney. Unfortunately that is not the case in the State of Iowa District Courts. Pursuant to Iowa Code section 815.9, in Iowa state courts, a criminal defendant is required to reimburse the state, whether guilty or not guilty, for the costs of "legal assistance." "Legal assistance" includes "court appointed attorney fees, costs to obtain transcripts, witnesses fees, expenses, and any other goods of services required by law to be provided to an indigent person entitled to an appointed attorney." These costs must be reimbursed to the state REGARDLESS OF WHETHER OR NOT THE INDIVIDUAL IS FOUND GUILTY OR IS ACQUITTED OR IF THE CHARGES ARE DISMISSED! These costs are due immediately upon being sentenced, or if the charge is dismissed or the defendant is acquitted, they become due within 30 days. Thus, a defendant who initially believes he is receiving a court appointed attorney at state expense can see his or her criminal charges dismissed only to be served with papers from the State of Iowa requiring him to repay the state to the tune of thousands of dollars in court appointed attorney's fees and costs. If the individual objects, the State will quickly point the person to the portion of the Financial Affidavit/Application for Appointment of Counsel that "advised" the individual completing the form of just that.

The debate on this issue wages with adamant support both for and against these provisions. On the one hand, many tax payers believe it to be only appropriate to require the individual receiving assistance to repay the State for the costs of a defense as opposed to requiring the taxpayers to foot the bill. This is the same attitude that has resulted in laws being passed wherein the entire state Judicial Branch budget is funded by revenue generated through the imposition of fines. The "justice system" is funded by those individuals that it sentences. (See re-post of A Troubling Trend). On the other side of the debate are those that would argue that this system (1) violates the plain language and spirit of the 6th Amendment; and (2) public policy is not best served by requiring the poor to repay the State for services it is constitutionally mandated to provide. If an individual is truly indigent and cannot afford an attorney, the negative implications of requiring the person to repay the State far outweigh the costs to the tax payers and in fact cost taxpayers more in the long run. For example, an individual that cannot afford to pay these costs will have a judgment rendered against them which can and often does at times result in the suspension of their driving privileges which then obviously impairs their ability to make a living necessary to repay the costs and more importantly support their families. Jail time can also be imposed if reimbursement of court costs and attorneys fees are made a condition of the defendant's probation or even if they are not a condition of probation the court could exercise and does at time exercise its inherent contempt powers to jail those who do not repay their court appointed attorney's fees. This creates a miserable downward spiral that many people are not able to pull themselves out of.

There are many additional arguments that can be made both for and against requiring the indigent to repay court appointed attorneys fees and costs. It would be intriguing to see a fiscal study regarding the funds spend by the State in tracking and attempting to recoup these expenses (including their own attorney fees) in comparison to how much the State is actually reimbursed. This author is willing to wager that this may just be one of those situations where the State of Iowa is making yet another foolish financial decision where the costs are nowhere equal to the benefits achieved by this program. This doesn't even take into consideration the constitutional and moral infirmities of this current system which in essence taxes the poor to avoid taxing the rich.