Defense by court-appointed attorneys is a constitutional right: Iowa should pay for it

Thousands of times every year, Iowa appoints attorneys to represent criminal defendants who cannot afford to hire their own. And thousands of times every year, when a case ends, Iowa demands that many of those low-income people pay back all or part of the cost of those attorneys.

This practice crushes people trying to rebuild their lives while delivering little benefit to state coffers or anybody else. Iowa should stop it.

Sixty-one years ago, the U.S. Supreme Court decided Gideon v. Wainwright, ruling unanimously that criminal defendants in state courts had the right to the assistance of counsel guaranteed by the Bill of Rights. States have struggled since then to figure out how to best fulfill that promise. Our state’s system has undergone several evolutions over those years, mostly for the better. But inequities remain, including among rural compared with urban Iowans, and among those who are convicted compared with those who are not. Further, Iowa is more aggressive about demanding repayment than most other states, according to advocates who study the issue.

More: If you can't afford an attorney in Iowa, one will be appointed. And you may get a huge bill

Uphold the Constitution; don’t reinforce poverty

The best way to eliminate those specific inequities is to ditch repayment for counsel, categorically. Yes, on balance, that means higher taxpayer expenditures on criminal prosecutions. But removing at least this element of court debt means fewer defendants will have their wages garnished, fewer will be unable to register their vehicles, and fewer will be subject to more incarceration because of unpaid court debt. In short, they will have that much better of a chance to escape poverty, which is associated with recidivism. That’s good policy.

More importantly, not seeking repayment is more consistent with upholding the constitutional right to counsel. Put another way, Iowa also would do well to spend more state revenue on strengthening anti-hunger programs or expanding Medicaid eligibility or cleaning fouled waterways, but its decisions on those topics don’t implicate constitutional promises. The American Bar Association in a statement of principles says that fees and reimbursement should not be required for public defense services, “because the justice system serves the entire public and should be entirely and sufficiently funded by general government revenue.”

Two nonprofit organizations, the Marshall Project and the National Legal Aid & Defender Association, have examined Iowa’s practices in detail in recent years. A news story produced by the Marshall Project this winter highlighted the specific struggles individual Iowans have encountered after being ordered to reimburse their court-appointed attorneys.

Investigations find disparities in costs for Iowans

The State Public Defender’s Office handles most indigent defense cases in Iowa’s most populous areas; a network of contract attorneys is more likely to handle cases in rural areas. While the hourly pay for contract attorneys is capped by law, they have more incentive than public defenders to assiduously record the number of hours they put in, and that discrepancy leads to large differences in the average repayment rural Iowans face. The Marshall Project found the average indigent defense fee in cases in Linn County, which includes Cedar Rapids, was $122. In Taylor County in southern Iowa, it was $846.

Another problem: State law requires that even people whose cases don’t lead to a conviction must pay for the work of the attorney who handles their case. Perhaps the prosecutor who brought a losing case should bear part of the burden? Worst of all, people who have been convicted can get a ruling from a judge concerning their ability to pay restitution — but people who are acquitted or whose charges are dismissed cannot seek such a hearing. The Marshall Project reported that such innocent defendants were billed $30 million from 2012 to 2022.

The total outstanding debt for indigent aid is close to $180 million, the National Legal Aid & Defender Association said in its 2022 report. The state collects just a few million dollars a year. That’s all we get from subjecting Iowans to these crushing loads.

The reimbursement problem has been exacerbated by a provision in a 2020 criminal justice reform law. Under the change, defendants are presumed to be able to pay the kinds of restitution that include indigent-defense repayment. Previously, the ability to pay was assessed case by case during and after the sentencing process.

State has trouble getting private attorneys to represent defendants

Iowa is confronting another problem in indigent defense: The state’s roster of contract attorneys to fill in the gaps in public defense has shrunk by half in the past decade. Lawyers say the state’s rates are not competitive, either with other work attorneys could line up instead, or with what neighboring states pay. Iowa Supreme Court Chief Justice Susan Christensen noted this in her 2023 address to lawmakers: "Our federal and state constitutional obligation to provide indigent counsel is on the verge of snapping.”

Lawmakers do appear to be taking this issue seriously. State Rep. Brian Lohse has proposed two bills, one to allow lawyers to deduct such work on their income taxes, and another to set up grants to attract lawyers to rural areas where they’re needed.

The solution is similar to the one for reimbursement by defendants: Iowa needs to acknowledge the real costs of public defense and simply pay them, instead of making nickel-and-dime gestures to slim the expenditure.

A vigorous defense for everybody is not a gift

Iowa has high incarceration rates compared with other states. Maybe requiring the public to bear more of the costs of prosecutions would be a small step toward finding better resolutions than prison.

"Our collective indifference toward the right to counsel in our criminal courts undoubtedly has a lot to do with the perception that poor people are to blame for their poverty and that people accused of crimes are probably guilty,” John P. Gross, a University of Wisconsin law professor, wrote in a 2023 Harvard Law Review essay.

When people accused of crimes cannot afford to hire lawyers, it’s the responsibility of all of us to ensure they get vigorous defenses. It’s not a gift. It’s the promise of our Constitution.

FURTHER READING: The right to counsel in criminal cases: Still a national crisis?

FURTHER READING: At what cost? The imposition of public defense system fees

Lucas Grundmeier, on behalf of the Register editorial board

This editorial is the opinion of the Des Moines Register's editorial board: Carol Hunter, executive editor; Lucas Grundmeier, opinion editor; and Richard Doak and Rox Laird, editorial board members.

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This article originally appeared on Des Moines Register: Stop making cash-strapped Iowans pay for court-appointed attorneys