More on Representation for the Working Poor

Scott Henson (Grits for Breakfast) brings us news of Collin County, Texas’s efforts to cut costs by denying appointed counsel to people who own over a certain amount of assets or have income over a certain amount.

The numbers? The rules are in this document (PDF):

The financial standards set forth below shall be used to determine whether a defendant is indigent and shall be applied equally to each defendant in the county. A defendant is considered indigent if:

a. their total income does not exceed 125% of the Federal Poverty Guidelines established and revised annually by the U.S. Department of Health and Human Services and published in the Federal Register; or

b. if the defendant and defendant’s spouse were not required by law to file the most recent U.S. Individual Income Tax return (either 1040 or 1040EZ) due to gross income below the filing requirements; and

c. if the defendant and defendant’s spouse liquid assets do not exceed $2,500; or

d. whose liquid assets do not exceed double the estimated cost of obtaining competent private legal representation on the offense(s) with which the defendant is charged.

In order to be indigent, a person must meet one of the two income tests (<125% of the poverty level, or gross income below the filing requirements) and one of the two asset tests (liquid assets below $2,500, or liquid assets below double the estimated cost of competent private legal representation).

We’re talking about felony cases here. Competent private representation on a first-degree felony (maximum penalty: life in prison) will easily cost $20,000.

Consider Bob, a worker with no dependents who makes $10,300 a year but has no liquid assets other than his car. Bob is charged with a major felony that he didn’t commit, for which competent representation will cost $15,000. Since Bob makes more than 125% of the federal poverty guidelines for a single person with no dependent, he is ineligible for appointed counsel. Earning $10,300 a year, Bob living very close to the edge already; he’s living paycheck-to-paycheck; he doesn’t have money saved to go to the doctor or get his car fixed, much less hire a competent lawyer.

The DMN story says that, in all of the case reviewed, “one of two things happened to a defendant who was denied court-appointed counsel: the accused hired his own attorney or the judge reversed county government staffers and appointed one.”

But when they told Bob he didn’t qualify for an appointed lawyer, they didn’t tell him that the decision might be reversed. So Bob, who is out on bond, scared, and looking for a lawyer, starts getting letters from lawyers who will take his felony case for $500 or less. Bob looks at his finances and decides that he can splurge the $500 lawyer if he borrows from his friends. He calculates that he can pay them back in a few months. He hires the $500 lawyer.

The $500 lawyer is, of course, not going to spend any time working on Bob’s case. He’s going to try to get Bob to plead guilty as quickly and efficiently as possible so that he can go on with the serious business of getting hired to represent people. Bob, who knows he doesn’t see any other options, pleads guilty. Now he’s a felon. He gets laid off at his job, and can’t get another one because he’s a felon. Bob’s not going to get in trouble with the law again (remember, he was factually innocent the first time round). But if he does, at least he’ll qualify for appointed counsel.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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