Public-defender fee challenged

Welfare officials in Athens County are protesting a state law that allows judges to impose a $25 fee on low-income criminal defendants. The money goes with a form to show that they're financially indigent so they can get taxpayer-funded legal counsel.

The head of the county's office of the Ohio Public Defender, however, said last week that while he understands the concerns about charging extra fees to those who already can't afford a private attorney, in his experience the fee has never interfered with a defendant's constitutional right to an attorney.

"I've never seen the $25 prevent someone from obtaining legal representation," said Glenn Jones, director of the Athens County PD's office.

If enough people believe the fee is too onerous, he suggested, it "might need to be reviewed and looked at" by the Ohio General Assembly.

As things stand right now, however, Jones said, he believes it doesn't create a huge burden for clients of the Public Defender, because typically it's added in with court costs. These virtually always exceed $25, he noted, and a defendant is typically allowed to pay them off over time. And in any case, he said, no criminal defendant who wanted a lawyer would be denied his constitutional right to have one for want of paying the fee.

The Athens County Department of Jobs and Family Services has recently begun to make an issue of the fee, which agency officials suggest amounts to requiring clients of the Public Defender to pay money to "prove they are poor."

In a news release Thursday, the county DJFS called the fee "another tax on poor people," designed to lower the amount the state has to pay for public defender services. "Quite simply, the state should not be forcing people living in poverty to pay for a service they cannot afford and the state is supposed to provide," the release stated.

Nick Claussen, community relations coordinator for the county DJFS, said Friday that it appears, from information the agency has obtained from courts around the state, that the fee "“ which a judge has the option to waive "“ is being imposed very inconsistently from county to county.

While judges in some counties "“ including Athens "“ virtually never waive the fee (only 0.3 percent of the time in Athens County), DJFS has found, other counties waive it most of the time.

Counties that waive the fee in a majority of their PD cases, according to DJFS-compiled figures, include Defiance (51 percent of cases) Geauga (51 percent), Knox (74 percent), Lucas (70 percent), Scioto (54 percent), Seneca (56 percent) and Williams (95 percent).

DJFS is also concerned, its release said, with the fact that there is apparently "no set process for how an individual applies to have the fee waived," and no guidelines for when it should be waived, and that counties aren't keeping records of how many people ask to have the fee waived but are denied.

Claussen said the fee has been in place since 2005, when the Legislature enacted it, and has been imposed since then with gradually more frequency. When its existence came to the attention of his agency, he said, "we thought, 'Let's look into it.'"

He noted that by law, the state is supposed to cover half the cost of PD services, and the counties are supposed to pick up the other half. The law mandating this, however, he noted, allows for the state to pay less than its 50 percent share if it is short on funds, thus throwing an extra burden onto the counties.

The fee, Claussen suggested, is "a way to pay the counties back" for the extra share they have increasingly had to pay in recent years.

One of the biggest concerns for DJFS about the fee, he confirmed, is the apparent lack of consistent guidelines for who does and doesn't get a waiver.

"There's no set procedure for how to request a waiver anyway," he added.

John Alge, director of administration for the Ohio Public Defender Commission, said that to his knowledge, the fee can be waived by a judge even without a request from the defendant's attorneys, if the judge looks at the defendant's indigency information and decides the person is so destitute that the fee would constitute an excessive financial burden.

Alge also noted that Ohio was hardly a pioneer in requiring indigent defendants to contribute to the cost of their defense.

"We're not the first state to implement this kind of thing," he said.

Though he said there's long been support among legislators and many of their constituents for requiring indigent defendants to contribute something to pay for their legal counsel, Alge also acknowledged that the people required to pay the fee "are already saying that they don't have any money."

He suggested that no one imagines that charging indigent defendants $25 apiece will cover anything close to a county's public defender costs.

"It was never intended to be a solution to the funding issue," he said. "It was intended to be a supplement to it."

However, he added, the fee has generated a decent amount of money in Ohio, somewhere in the neighborhood of $2 million since it was first instituted.