A post at Prawfsblawg highlights an article in the Indiana Law Journal titled "The Invisible Pillar of Gideon", arguing that there should be a Constitutional floor for Indigency.

[This] piece illustrates the discrepancy among states in determining who is indigent for purposes of Gideon’s assurance of a right to counsel.  He observes that what counts as indigent in one state (e.g., Scott Peterson in CA) would not count as indigent in another (Larry McVay in South Carolina).  I would add that, in light of the various states that have fuzzy guideposts for determining indigency, the discrepancy exists not only across states but within states too regarding who is entitled to appointed counsel.

As to the solution to this problem, [the author] (whom I’ve not yet met) doubts Congress and the states could do something to establish the constitutional floor that Gideon is supposed to furnish on an equal basis; he therefore proposes that the Supreme Court adopt a framework that would "equalize the right to apponted counsel across the fifty states."  Specifically, the Court should adopt a rebuttable presumption that says: if you’re below 200% of the federal poverty guidelines, you should get appointed counsel.  This use of flexible benchmarks is similar to the Court’s State Farm jurisprudence in punitive damages.

A few months ago, there was plenty of discussion on this matter of indigency here and on Mr. DA’s blog. The discussions centered around the meaning of indigence, who defines indigence and how. [I think Tom might've gotten involved too.]

To be honest, I didn’t read through the whole "constitutional floor" article. But Mr. DA made some of the very same points in his post:

The difference is not really all that significant. Look at that family of four with two kids under 18.The basic threshold figure is $19,157 (set aside for the moment the question whether this isbefore or after taxes) a range of 125% to 187.5% of that number is $23, 946 to $35, 919. Usingthe guidelines figure of $18, 850 the range is $23, 563 to $35,344.

Is this reasonable? And why do we have the multipliers? 125%, 187.5% — what’s that all about?Let’s look at that two adults, two kids under 18 number. $19,157. That’s not a lot of money for a family of four to live on. But consider – if both the adults are working full-time, at minimum wage jobs (currently that’s $5.15/hr) and put in a full 2080 hours a year, their gross income will be$21,242. Whoa! If we only used the threshold or guidelines numbers, these folks wouldn’t qualifyfor appointed counsel. And that’s just plain silly. But when we apply the 125% multiplier we find they do qualify. So if Dad has a couple of beers after work on Friday, and rolls through a stop sign on his way home, he’ll be eligible for appointed counsel to fight the drunk driving charge Officer Friendly dropped on him.

Which brings me back to the point I made then. Let the individual states decide what indigence is. Every state has different real estate values, standard of living costs. Let there be a basic guideline, something perhaps along on the lines of "If an individual makes $12,000 a year or less, then he/she will be declared "indigent" regardless of other economic factors. Then let the states decide if they want to up that figure for their residents.

As I argued back then (lamented is more like it), even with my salary, I probably couldn’t afford to hire private counsel, were I charged with a crime. However, I certainly would not qualify for the division’s services. So there is a gray area, but it’s impossible to lay down a fixed rule. Each state legislature knows it’s economy the best, knows the SOL best, knows median income levels the best. So if CT decides that all said and done, $18,000 a year is a good cutoff, then let it be so.

Incidentally, CT’s definition of indigency is outlined in C.G.S. 51-297. Cryptically, it states:

As used in this chapter "indigent defendant" means (1) a person who is formally charged with the commission of a crime punishable by imprisonment and who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation and (2) a child who has a right to counsel under the provisions of subsection (a) of section 46b-135 and who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation.

From my knowlege, the cutoff is based on the Federal Poverty Guidelines. Here is the latest chart for CT. [pdf]

So what am I trying to say? Nothing, really. Just that we need to take indigent defense far more seriously. There are plenty of people in the country that fall below these guidelines and attorneys are not being properly compensated or given enough incentives to make this a career. Unfortunately, the poor masses lose out.

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