Indigent and able to contribute.

Under the Sixth Amendment, as interpreted by the U.S. Supreme Court in Gideon v. Wainwright and its progeny, individuals accused of crimes are entitled to defense representation at public expense. However, one major limitation on this right is this only applies to individuals who are indigent.

Washington State has rules governing how and whether a given individual is considered indigent. The applicable statute, however, distinguishes between those who are simply indigent, and those who are “indigent and able to contribute,” which basically means “can’t afford an attorney, but not blood-from-a-stone-broke.”

For decades, Thurston County Superior Court has required individuals categorized as “indigent and able to contribute” to start paying a certain sum of money shortly after an attorney is appointed. For example, the individual may be required to pay $50.00 per month, beginning a month from the appointment of counsel on a Class B felony case, up to a maximum of $500.00. Because the retained rate for the same representation may be many times $500.00, this is considered a compromise position. But because the payments start occurring so soon after appointment, many of the payments are being made while the individual is still presumed innocent.

One issue with this practice–beyond the necessarily imprecise indigency screening process, which may result in a person being required to pay money she simply doesn’t have; or may result in paying much less than she has, and requiring taxpayers to foot the bill for the difference–is that the Washington State Constitution does not allow “an accused person before final judgment [to] be compelled to advance money or fees to secure the rights” guaranteed by the Constitution. Article I, Section 22. In other words, while it may be okay to recoup attorney fees from a person convicted of a crime under certain circumstances, the Court isn’t allowed to start recouping attorneys fees in advance of conviction as a precursor to assigning counsel. State ex rel. Brundage v. Eide, 83 Wn.2d 676 (1976), State v. Curry, 118 Wn.2d 911 (1992), State v. Blank, 131 Wn.2d 230 (1997). And that’s what Thurston County Superior Court’s practice looks like.

When I pointed out the problem to a particular judge on a particular case last week, the Judge agreed with me the practice is unconstitutional. Hopefully that ruling trickles down to an overall change in practice. And hopefully any other jurisdictions in Washington State that are implementing a similar practice change as well.