How much are your constitutional rights worth to you?
That may seem like a philosophical question. But for criminal defendants, it’s not an idle or abstract one, thanks to the regular attachment of fees to the exercise of basic constitutional protections.
After the Supreme Court’s decision in Timbs v. Indiana, which recognized that a fine is still a fine by any other name, now is the perfect time for states to end these odious fees.
The Hobson’s Choice between a defendant’s money and her rights often revolves around whether to claim the Sixth Amendment right to an attorney — and to require the government to fulfill its obligation to provide a court-appointed one if necessary. Indeed, the cruel irony of charging a defendant for public counsel immediately after determining she is too poor to hire her own lawyer has done little to cool the ardor with which states assess public counsel fees.
Surprisingly, the right to counsel is not the only right that comes with a cost.
One can find price tags affixed throughout the Bill of Rights. Looking to confront the witnesses against you at trial, as guaranteed under the Fifth Amendment? In Iowa, hopefully your English skills are solid; otherwise, you could find yourself saddled with court interpreter costs.
Maybe your Sixth Amendment right to subpoena witnesses in your own defense looks appealing? That will be $8 per witness in Alabama. Perhaps the Sixth Amendment right to a jury trial is important to you? In Washington State, be prepared to pay by the juror.
Considering taking advantage of your Eighth Amendment right to a reasonable bail? Better not do it after regular court hours in Massachusetts, or you’ll be stuck paying a $40 fee even if no cash bail is set.
The fact that most of these fees only attach following a conviction adds a punitive tinge to their assessment. They may be labeled “fees” but in reality, they are fines. For fees that apply regardless of whether an individual is convicted, we are effectively charging people for the privilege of exposing the government’s error.
This is an injury that compounds the insult.
Whatever the source or justification, fees can add up to thousands of dollars over the course of a case and may be subject to double-digit levels of interest. Carve-outs for designated “indigent” defendants are insufficient to alleviate this problem, as they do little to help poor individuals who barely miss the cutoff.
The ability of these fees to accumulate and drive defendants into debt argues for action.
Their potential to abridge constitutional rights demands it.
The whole premise of a right is that each of us holds it intrinsically by virtue of being lucky enough to live in — or at least visit — the United States. As soon as the exercise of this right is associated with a payment, it becomes conditional. It switches from something we have to merely something that we can obtain.
This may seem like a matter of semantics, but its substantive impact can be significant.
As soon as a cost — however low — is introduced, a coercive element insinuates itself into the decision of whether and how to exert that right. Consider, for a moment, what would happen if suddenly the right to remain silent cost $10,000 to claim. It’s safe to say that if that were the case, our courts would immediately be filled with rather loquacious defendants.
A counsel fee amounting to a few hundred dollars may seem a far cry from this extreme example, but it is a difference in degree, not in kind. For some defendants, $100 might as well be $10,000. As a result, many indigent defendants choose to represent themselves rather than spend their money on a counsel fee.
Usually, this attempt at financial savvy simply proves true the old maxim, “A man who is his own lawyer has a fool for his client.” But it also thrusts another uncomfortable truth to the fore: The state shouldn’t force its citizens to choose between foolishness and poverty.
Far from using monetary incentives to discourage the exercise of these rights, we should be actively facilitating their use. There is a reason, after all, that we enshrined them as rights in the first place. Pressuring defendants to forgo their rights in an attempt to save money only increases the risks of unwarranted convictions and unnecessary jail sentences.
Furthermore, so long as states continue to use jails as debtor’s prisons for unpaid court fines, a jail sentence can loom even for those defendants who agree to pay for constitutional protection but then fail to come up with the money.
Regardless of the budget pressures that the government might feel, it should view the criminal justice system as a source of justice, not revenue.
Our rights are too valuable to be enumerated in dollars and cents, and the Bill of Rights shouldn’t come with a bill.
Editor’s Note: Journalists, researchers and policymakers gathered at John Jay College Thursday for a two-day conference exploring the growing burden that court fines and fees impose on low-income populations. Follow the coverage of the discussions on The Crime Report or at #cashregisterjustice.”
The conference can be viewed livestream here.
Lars Trautman is a Criminal Justice and Civil Liberties Senior Fellow at the R Street Institute and a former prosecutor.