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Paying for Gideon

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“To protect the ‘noble ideal’ that ‘every defendant stands equal before the law,’ Gideon v. Wainwright guaranteed the right to defense counsel for those who cannot afford it. Gideon’s concept is elegantly simple: if you are too poor to pay for counsel, the government will provide. The much more complicated reality, however, is that since Gideon, courts have assigned counsel to millions of American defendants too poor to pay for an attorney, and later required those defendants to pay for their counsels’ services.

Because schemes for recouping the costs of providing counsel from indigent defendants operate behind the scenes, I begin this Essay by pulling back the curtain to provide an overview of what the attempts to extract indigent defense fees and costs from the poor look like.  I describe how, in 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. Once assessed, recoupment debt carries with it potentially debilitating collateral consequences—limitations on employment, housing, and public benefits—that effectively render one’s capacity to pay recoupment debt even less likely. Where one cannot pay, either because of poverty at the time of imposition or by being pushed there as the result of collateral consequences, states and local governments often resort to arrest, probation revocation, and incarceration. . . .”



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