You have a right to an attorney, but what about the cost of an attorney?

Hello Street Law Advocates, 

The right to an attorney in a criminal case is a concept seared into our brains through television  shows such as Law & Order, Criminal Minds, CSI, The Closer and Major Crimes, and most people view this right as being completely free, without the expectation of payment. In Gideon v. Wainwright, the US Supreme Court decided that indigent (poor) defendants have the right to an attorney appointed by the court.[1] One might infer that because this is meant to protect the rights of poor defendants they would not be expected to pay back the legal fees, but this is a misconception.[2]  In the United States generally, an Iowa particularly, charges indigent defendants the most for their court-appointed legal services.[3] In Iowa, by the end of 2022, indigent defendants owed almost $200 million in legal fees.[4]  To complicate this, fees are often shifted to defendants who had their cases dismissed or were otherwise found innocent — meaning that if you go through all the work on proving your innocence, your reward is a massive bill.[5]

This begs the question of whether mandating indigent defendants to pay for their legal services — even when not convicted of any wrongdoing — violates the constitutional principles that define our criminal justice system. If the 14th and 6th Amendments protect the right to representation for indigent defendants, then why make them pay - knowing that most people would rather choose to forgo representation?[6] Is this in essence a criminal penalty meant to ensure that defendants whose cases are dismissed do not further engage in suspected criminal conduct? 

Rep. Brian Lohse of the Iowa Legislature surely thinks so, asserting that the fees are meant to deter repeat offenders, and hold them accountable so they do not think of their legal representation as a gift.[7] This strikes me as counter intuitive given, as mentioned above, many of these individuals have been cleared by either a jury of their peers, or a judge sitting in judgement. Additionally, the failure to pay these legal fees results in a forfeiture of common rights such as registering your car, or receiving your state tax returns.[8] Despite the fact that legal representation is hardly a gift, but a fundamental right, the practice of fee-shifting looks more to me like a restitution order than compensation for services given that Iowa allocated millions of dollars to pay for indigent legal services.[9]


[1] Gideon v. Wainwright, 372 U.S. 335 (1963)
[2] Lauren Gill, If You Can’t Afford an Attorney, One Will Be Appointed. And You May Get a Huge Bill, The Marshall Proj. (Feb. 12, 2024), https://www.themarshallproject.org/2024/02/12/miranda-rights-indigent-defense-iowa.
[3] Id.
[4] Id.
[5] Defendants found guilty can also be met with the legal bill. Id.
[6] Gideon v. Wainwright, 372 U.S. 335 (1963); Lauren Gill, If You Can’t Afford an Attorney, One Will Be Appointed. And You May Get a Huge Bill, The Marshall Proj. (Feb. 12, 2024), https://www.themarshallproject.org/2024/02/12/miranda-rights-indigent-defense-iowa.
[7] Lauren Gill, If You Can’t Afford an Attorney, One Will Be Appointed. And You May Get a Huge Bill, The Marshall Proj. (Feb. 12, 2024), https://www.themarshallproject.org/2024/02/12/miranda-rights-indigent-defense-iowa.
[8] Id.
[9] Id.