The Vermont judiciary lost around $2 million in three years by failing to collect dues from criminal defendants who are assigned public defenders, Vermont Auditor Doug Hoffer concluded in a report released Monday.
The state collected less than one-third of the $3.1 million in court-ordered fees for public defenders from 2012 through 2014, Hoffer concluded.
“More aggressive action on the part of the judiciary could result in more effective collection of public defender fee debt,” Hoffer concluded.
The judiciary, however, took issue with Hoffer’s report. Court officials say it may be unconstitutional to aggressively collect payments from poor defendants before assigning them a public defender.
As mandated by the U.S. Constitution, Vermont pays for attorneys for criminal defendants who cannot afford to hire their own. However, defendants are expected to pay a small fee for the services of public defenders. The fee varies based on a defendant’s income, and a judge can waive the fee for the most poor, but is usually $50.
For defendants who can pay, state law says that court clerks should seek payment of a portion at their initial court appearance, with the rest paid within two months.
But in practice, Hoffer said, clerks seldom use this collection method. Instead, they typically bill for the fee weeks after the initial court appearance, and rarely receive payment. The judiciary then forwards unpaid debts to the Vermont Department of Taxes, which sometimes takes fees from defendants’ tax refunds.
Lawyers who work for the judiciary said that federal courts have ruled that requiring co-payments from indigent defendants before they are assigned attorneys is unconstitutional. They say they have little choice but to seek payment only after the public defender starts working on the case.
“We believe the significance of that concern has been marginalized,” Vermont court administrator Patricia Gabel and Chief Superior Judge Brian Grearson wrote in a letter to Hoffer. “The ramifications of denying counsel for nonpayment of a public defender fee are significant. To characterize this as a simple ‘constraint,’ is a serious understatement.”
Though court officials don’t believe they can require it, they said they would instruct court clerks to be more aggressive about asking for upfront payment of the public defender fee.
Court officials also suggested that responsibility for collecting the fees be reassigned to the Vermont Defender General’s Office, which supervises the public defender program.
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“Court officials say it may be unconstitutional to aggressively collect payments from poor defendants before assigning them a public defender.”
I am disappointed in the Judiciary’s response.
First, we said nothing about aggressively collecting payments. We simply noted that the statute allows for collection in advance and that requesting payment up front may result in greater revenue.
Second, while the statute could be read to say that services could or should be contingent on payment up front, we never said that nor would we ever recommend it.
You quote the Court Administrator and Chief Superior Judge saying that “We believe the significance of that concern has been marginalized. The ramifications of denying counsel for nonpayment of a public defender fee are significant. To characterize this as a simple ‘constraint,’ is a serious understatement.”
There is absolutely nothing in our audit report about denying counsel. This is a gross mischaracterization of our findings. And if the Judiciary thinks the state statute is unconstitutional, the obvious remedy is to ask the legislature to revise the statute. To my knowledge, the Judiciary has never done so.
Finally, “Court officials also suggested that responsibility for collecting the fees be reassigned to the Vermont Defender General’s Office, which supervises the public defender program.”
This too is disappointing. The Defender General’s Office is not in the business of collections, while the Judiciary is. Rather than making an effort to improve the process, it appears the Judiciary would rather wash its hands of the responsibility.
What about the law abiding citizens who end up footing the bill? Geesh, a little effort here, please.
If it’s thought to be unconstitutional, prove it. If it is, fix it. If not, collect the fees from those who decide to break the law.
We gotta stop sucking on taxpayers in favor of any folks, rich or poor, who break the law. What is the real solution here; judiciary?