ANNAPOLIS – The Miranda warning may guarantee defendants the right to an attorney, but under a new proposal lawyers won’t automatically be free.
A controversial recommendation in a draft report from a secretive commission looking into the structure and efficiency of state government has suggested stronger enforcement of a $50 application fee charged to poor clients for a public defender.
In the report, which is not yet final, the commission found only 30 percent of Maryland defendants ever pay this fee. The panel suggested giving judges the ability to order payment as a condition of probation and suggested instituting a better cash accounting system to track delinquents.
“How much of this is due to an inefficient collection process and how much is trying to get blood out of a turnip?” said Cynthia Boersma, counsel, finance and policy for the Office of the Public Defender. “We are dealing with the poorest of the poor in Maryland.”
Former Gov. Marvin Mandel, chairman of the Commission on the Structure and Efficiency of State Government, said the Public Defender’s Office asked the commission to examine the issue. He added that the court has the right to order the payment.
Maryland is one of about 25 states imposing an application fee in the face of rising budget shortfalls. The fees range by state from $10 to $200.
Boersma said the Public Defender’s Office agrees nonpayment is an issue and supports efforts to increase the percentage of people who pay, but if the payment is set up as a barrier to representation, she said, there may be some constitutional questions involved.
In addition, she said, making payment part of probation would create a conflict for her office because public defenders work to keep people out of jail and nonpayment could lead to incarceration.
“You are asking people who are afraid, to take the risk to get representation, even though they could go to jail for failure to pay,” Boersma said. “This could have a chilling effect.”
Mandel said he believes that argument is “utterly ridiculous.”
“No judge would send someone to jail for not paying $50,” he said. “It costs more to keep them there.”
What the judge would probably do, he said, was order smaller weekly payments of about $5 over the course of the probation.
Beginning in the early ’90s, Maryland began charging adults the $50 fee for a public defender. Juveniles are charged $25. Technically, the fee is due before a defendant meets with counsel, but lawyers usually start proceedings regardless of payment.
If payment is not received before the case ends, Maryland law requires the Public Defender’s Office to make three attempts to collect it. After that, the debt is turned over to the state collection agency, which garnishees the fee from any income tax returns.
“Our clients are indigents. That is why the fees don’t get paid. . . . They are poor – they usually don’t get money back from taxes,” Boersma said. In addition, many face long prison sentences where other debts, like child support, accumulate.
A report for the American Bar Association by the Spangenberg Group, a legal defense research firm, found most states (including Maryland) either allow waivers for those deemed unable to pay or allows defendants to only pay a portion of the fee.
Maryland may be the first state to connect payment with probation, the report says.
The commission’s recommendation would give the judge discretion in ordering the payment as a condition of probation. Judges already may impose reimbursement fees on a defendant, usually about $200, to reflect the amount of time a public defender spent on the case.
The Maryland Public Defender’s Office has faced inadequate funding problems for nearly a decade, with budget shortfalls of close to $3 million at some points. In addition, their caseloads have increased 20 percent in the last two years while employment levels have stayed the same.
Boersma said her office supports some of the commission’s other recommendations, including turning the entire collections process over to the state collections unit.
“Our staff is not really an accounts receivable department,” she said. “That is not our mission.”
The commission was created in August to find ways to restructure government and increase its efficiency. It’s scheduled to finalize its recommendations Dec. 2.