Washington & Lee Public
Legal Studies Research Paper Series
Accepted Paper No. 2018 - 07
April 2, 2018

107 Georgetown Law Journal ___ (forthcoming 2019)

Privatizing
Criminal Procedure

John D. King
Clinical Professor of Law, Director of Experiential Education, and Director of the Criminal
Justice Clinic
Washington and Lee University School of Law
Working Paper Series
Washington and Lee University School of Law - Sydney Lewis Hall – Lexington - VA – 24450

https://ssrn.com/abstract=3156230

Electronic copy available at: https://ssrn.com/abstract=3156230

DRAFT – PLEASE DO NOT CITE
WITHOUT PERMISSION OF THE AUTHOR
Privatizing Criminal Procedure
John D. King1
107 Georgetown Law Journal ___ (forthcoming 2019))
As the staggering costs of the criminal justice system
continue to rise, many states have begun to look for
non-traditional ways to pay for criminal prosecutions and to shift
these costs onto criminal defendants. Many states now impose a
surcharge on defendants who exercise their constitutional rights to
counsel, confrontation, and trial by jury. As these “user fees”
proliferate, they have the potential to fundamentally change the
nature of criminal prosecutions and the way we think of
constitutional rights. The shift from government funding of
criminal litigation to user funding constitutes a privatization of
criminal procedure. This intrusion of market ideology into the
world of fundamental constitutional rights has at least two broad
problems: it exacerbates structural unfairness in a system that
already disadvantages poor people, and it degrades how we
conceive of those rights. This Article proposes solutions to
ameliorate the harshest effects of these rights-based user fees but
also argues for the importance of resisting the trend of the
privatization of constitutional trial rights.
Table of Contents
I.

Introduction .............................................................................. 2

II.

User Fees and Trial Rights ....................................................... 8

Clinical Professor of Law, Director of Experiential Education, and Director of
the Criminal Justice Clinic, Washington and Lee University School of Law.
LL.M., Georgetown University Law Center, 2005; J.D., University of Michigan
Law School, 1996; B.A., Brown University, 1992. I would like to thank Johanna
Bond, Randy Hertz, Noelle Lyle, Jenny Roberts, and Theresa Zhen for their
helpful comments and suggestions. I am grateful for the extraordinary
research assistance of Mary Nerino and Kit Thomas, and for the support of the
Frances Lewis Law Center at the Washington and Lee University School of
Law.
1

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A.

Right to Counsel .................................................................................... 11

B.

Right to Confront .................................................................................. 16

C.

Right to Jury Trial................................................................................ 25

III.

Doctrinal Limitations of User Fees ........................................ 29

IV.

Privatizing Fundamental Rights ............................................ 37

V.

A.

Principled Problems ............................................................................. 37

B.

Pragmatic Problems ............................................................................. 42

C.

Solutions .................................................................................................. 44
Conclusion ............................................................................... 49

I.

Introduction

Although overall incarceration has decreased slightly since
the high-water mark of 2008-2009,2 the United States still
processes a staggering number of people through its various
criminal justice systems.3 The overall size of the criminal justice
apparatus shows no sign of decreasing in any significant way, and
counties, states, and the federal government struggle to find the
funding to support this massive project. User fees are the latest
effort to provide funding for courts, prosecutors, prisons, and
other costly features of the modern American criminal justice
system.
See U.S. Dept. of Justice, Office of Justice Programs, Bureau of Justice
Statistics, Prison Statistics (June 30, 2010),
https://www.bjs.gov/content/pub/pdf/p08.pdf (finding that federal and state
correctional authorities had jurisdiction over 1.6 million people at the end of
2008).
3 See Peter Wagner and Bernadette Rabuy, Mass Incarceration: The Whole Pie
2017, PRISON POLICY INITIATIVE, Mar. 14, 2017 (detailing the American
criminal justice system and the number of people held within each facility or
program).
2

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As states continue to deal with ever-increasing budget
pressures, many have begun to look for non-traditional ways to
pay for criminal prosecutions and to shift the costs of the system
onto those charged with crimes. As these “user fees” proliferate,
they have the potential to fundamentally change the nature of
criminal prosecutions and the way we think of exercising
constitutional rights. The shift from government funding of the
processes and procedures of criminal litigation to user funding
constitutes a privatization of criminal procedure.4
The most familiar user fee, which has been adopted by an
increasing number of states in the last two decades, is the
requirement that indigent defendants repay the state for the
costs of their court-appointed lawyers.5 States also have begun to
assess additional costs for defendants in drug cases if the
defendant refuses to waive her Confrontation Clause rights and
requires a drug analyst to appear in court to testify regarding the
chemical testing of the substance at issue in the case.6 Similarly,
many states now charge criminal defendants who elect a jury
trial the costs of empaneling a jury.7 In each of these examples,
the state fixes a surcharge for those defendants who elect to
exercise a constitutional right. Criminal defendants are charged a
fee for the exercise of their Sixth Amendment rights to counsel, to
confrontation, and to a jury.
Courts long ago squarely rejected as unconstitutional the
practice of user fees in the context of voting.8 Holding that states
could not condition a citizen’s right to vote on her ability to pay
even a small amount, the Supreme Court in Harper v. Virginia
Board of Elections9 struck down Virginia’s poll tax as violating

4
5
6
7
8

See infra Part IV.
See infra Part II.A.
See infra Part II.B.
See infra Part II.C.
See generally Harper v. Virginia Board of Elections, 383 U.S. 663

(1966).
9 383 U.S. 663 (1966)

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principles of equal protection.10 Courts have been far more
indulgent, however, in evaluating state requirements that those
accused of crime pay for the costs of exercising Sixth Amendment
rights within the context of their own criminal prosecution.
These á la carte procedural fees have proliferated over the
past quarter century and the growing phenomenon calls out for
re-examination. National events over the last few years have
made the issue of criminal costs and fees even more timely and
urgent than before. The 2015 report from the Department of
Justice concerning Ferguson, Missouri, for example, highlighted
that city’s practice of using criminal costs and fees to fund
municipal operations.11 In 2016, the Department of Justice
advised state courts that common court practices involving the
imposition and collection of costs and fees associated with
criminal charges may violate principles of due process and equal
protection.12
Understanding the current problem requires a reexamination of the evolution of these rights.13 At least since
Gideon v. Wainwright,14 a clear tension has existed between the
expanded understanding of formal trial rights for those accused of
crime and the practical costs associated with implementing those
rights. The Court in Gideon recognized a constitutional obligation
on states to provide counsel for those unable to afford private
See id. at 665 (“For it is enough to say that once the franchise is granted to
the electorate, lines may not be drawn which are inconsistent with the Equal
Protection Clause of the Fourteenth Amendment.”).
11
See generally U.S. DEP’T JUST., CIV. RIGHTS DIV., INVESTIGATION OF THE
FERGUSON POLICE DEPARTMENT (Mar. 4, 2015) [hereinafter THE FERGUSON
REPORT].
12
See generally “Dear Colleague” Letter, Vanita Gupta & Lisa Foster,
U.S. DEP’T JUST., CIV. RIGHTS DIV., Fines and Fees in State and Local Courts
(Mar. 14, 2016). This guidance was later rescinded by Attorney General Jeff
Sessions. Matt Zapotosky, Sessions rescinds Justice Dept. letter asking courts to
be wary of stiff fines and fees for poor defendants, WASH. POST, Dec. 21, 2017,
https://www.washingtonpost.com/world/national-security/sessions-rescindsjustice-dept-letter-asking-courts-to-be-wary-of-stiff-fines-and-fees-for-poordefendants/2017/12/21/46e37316-e690-11e7-ab50621fe0588340_story.html?utm_term=.4c62d7a330c9.
13
See infra part II.
14
372 U.S. 335 (1963).
10

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counsel but did not provide a solution for states to pay for this
requirement.15 This tension between recognition of a
constitutional right and the requirement of government to fund
the exercise of that right runs through the Court’s recent
jurisprudence on the Confrontation Clause, in which the Court
recognized that a robust and broad understanding of
confrontation rights would increase the costs of criminal trials.16
The willingness of American criminal justice systems to
allow for user fees to be assessed for the exercise of constitutional
rights is closely related to the neoliberal market model that has
come to dominate American criminal justice.17 As long as the
process is neutrally applied and the rules equally enforced, judges
and prosecutors are not seen as responsible for fair or equitable
outcomes, only fair procedures.18 Adversarial (free-market)
criminal justice systems care less about accuracy of result and
fairness of outcome and more about simply ensuring that the
existing procedures are applied correctly. As with the free-market
economic model, the free-market criminal justice model promises
equality of opportunity and process but not a result that is
necessarily fair or just. Putting a price tag on the processes of
criminal procedure by way of user fees, however, threatens even
the promise of procedural neutrality upon which the adversarial
system is built.
Allowing—or even encouraging—the waiver of rights
designed to ensure accuracy has a detrimental effect beyond the
At the time Gideon was decided, thirty-five states already provided counsel
for indigent defendants accused of crimes, either by state constitution or by
statute. See Brief for the State Government as Amici Curiae Supporting
Petitioner, Gideon v. Wainwright, 372 U.S. 335 (1963) (No. 62-155) (“Today
thirty-five states require counsel in non-capital cases, which is a strong
indication of the fundamental nature of that right in the modern view.”).
16
See infra Part II.B.
17
See DARRYL K. BROWN, FREE MARKET CRIMINAL JUSTICE: HOW
DEMOCRACY AND LAISSEZ FAIRE UNDERMINE THE RULE OF LAW 19 (2016)
(“Criminal process puts a priority on giving parties procedural opportunities
but, as in the economic realm, the state is less committed to ensuring certain
kinds of results”).
18
See id. (“The state—especially in the form of the judiciary, but in other
respects as well—does less to ‘coordinate’ certain kinds of outcomes, including,
ultimately, the accuracy and proportionality of court judgments.”).
15

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impact on the individual defendant. A broad and robust right to
counsel in our adversarial system is justified not only to protect
individual defendants but also to safeguard the integrity of the
system.19 The effects of these practices lie beneath the
immediately visible surface. There is little current evidence which
shows that statutes requiring payment by defendants for the
costs of their appointed counsel have a chilling effect on the
exercise of that right.20 When considered with the additional and
growing variety of user fees, however, it is likely that this
phenomenon reduces the actual procedural safeguards that
theoretically attend criminal trials. This is especially probable
with regard to low-level crimes that constitute the vast bulk of
the national criminal justice apparatus.
Beyond the practical effect of these user fees on the
exercise of rights by defendants, this Article examines whether
encouraging the alienability of these procedural rights changes
the way we see them, and further diminishes their role in our
system of adjudication.21 Kim Krawiec discusses three categories
of forbidden exchange: “(1) illegal ones; (2) inalienable ones; and
(3) those that are both legal and alienable but in which exchange
for profit is banned or limited.”22 Unlike markets in illegal drugs
or other kinds of vice (which we ban for entirely different
reasons), we forbid the sale of civic rights like the right to vote or
to freedom of speech.23
See, e.g., Justin Murray, A Contextual Approach to Harmless Error
Review, 130 HARV. L. REV. 1791 (2017); see also Beth A. Colgan, Lessons from
Ferguson on Individual Defense Representation as a Tool of Systemic Reform,
58 WM. & MARY L. REV. 1171 (2017) (“Ferguson is illustrative of how a system
grounded on constitutional deficiencies can be used as a tool for revenue
generation, and how individual defense counsel can help to reform such
systems of governance.”).
20
See Ronald F. Wright and Wayne A. Logan, The Political Economy of
Application Fees for Indigent Criminal Defense, 47 WM. & MARY L. REV. 2045,
2078–81 (2006) (noting the lack of empirical evidence regarding waiver rates
following the passage of application fee laws in states and conducting an
independent study that concluded that application fee statutes did not
“profoundly” shift waiver rates in the two states surveyed).
21
See, e.g., Kimberly D. Krawiec, Show Me the Money: Making Markets in
Forbidden Exchange, 72 LAW AND CONTEMPORARY PROBLEMS i (2009).
22
Id.
23
See id. (discussing entitlements that are legal but inalienable).
19

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Krawiec finds
Exchange (for any motive) in these . . . activities
is . . . forbidden—not because we consider the items
and activities harmful to society, but because they
are so closely tied to the individual’s rights and
responsibilities as a member of the community that
the state does not allow their separation.24
We do, however, allow for a defendant to “sell” her right to
counsel or to a trial by jury in exchange for a reduction in court
costs.25
As we increasingly allow for the segmentation of criminal
procedural rights, and for costs to be assessed á la carte for those
who exercise these rights, the adversarial adjudication system
becomes gradually priced beyond the reach of most criminal
defendants. Spreading the financial burden of the exercise of such
rights across a broader range of social actors would remove the
disincentive to actually exercise these rights.
A system that is so reliant on funding from the unwilling
consumers necessarily ends up treating those who can pay better
than those who cannot. Our system of criminal justice has been
described as a “two-tiered system . . . where those who can pay
their criminal justice debts can escape the system while those
who are unable to pay are trapped and face additional charges for
late fees, installment plan, and interest. These extra charges,
which have been referred to as ‘poverty penalties,’”26 add up to a
significant increased burden on those who can least afford it.27

Id.
Of course plea bargaining is the ultimate “selling” of a fundamental
right, although the trade there is one’s right to be presumed innocent in
exchange for a shorter prison sentence.
26
Neil L. Sobol, Charging the Poor: Criminal Justice Debt & Modern-Day
Debtors’ Prison, 75 MD. L. REV. 486, 492 (2016).
27 REBEKAH DILLER, BRENNAN CTR. FOR JUSTICE, THE HIDDEN COSTS OF
FLORIDA’S CRIMINAL JUSTICE FEES (2010), available at
http://www.brennancenter.org/sites/default/files/legacy/Justice/FloridaF&F.pdf
(describing a system increasingly reliant on criminal defendants to support its
system of criminal justice). The report suggests that Florida provides no
exemptions for those unable to pay the fees. Id.
24
25

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Section II of this article examines the variety of user fees
that now accompany criminal trials in state jurisdictions and the
trend toward shifting the financial costs of criminal adjudication
onto the criminally accused.28 The three main categories of fees
that this Article addresses are those fees assessing defendants
the cost of their appointed counsel,29 additional fees for a
defendant demanding the presence of a forensic witness as, for
example, in a prosecution involving drug possession or driving
while intoxicated,30 and those charging a defendant the costs of
empaneling a jury.31 Section III analyzes the doctrinal limitations
that courts have placed on states that seek to impose a financial
burden on defendants who exercise constitutional trial rights.32
Section IV examines the impact of financial costs and fees on
those people who are predominantly the subjects of the American
criminal justice system, poor people and people of color.33 This
Section addresses not only the criminalization of poverty but also
the growing concern that some courts have come to function more
as revenue generators than as stabilizing social institutions.34
Finally, Section IV engages some of the philosophical challenges
in converting public rights into private commodities that can
either be exercised or waived for financial reasons.35 The Article
proposes solutions to ameliorate the effects of these rights-based
user fees and argues for the importance of resisting the trend of
privatizing constitutional trial rights.
II.

User Fees in Criminal Procedure

Although many aspects of the criminal justice system have
become monetized, this Article focuses on the imposition of costs
and fees on defendants who elect to exercise certain constitutional
trial rights. The rights enshrined in the Sixth Amendment36 are
exercisable or waivable at the election of the accused.
28
29
30
31
32
33
34
35
36

See infra Part II.
See infra Part II.A.
See infra Part II.B.
See infra Part II.C.
See infra Part III.
See infra Part IV.
See id.
See id.
U.S. CONST. amend. VI.

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Notwithstanding their alienability, each has always been seen as
fundamental to the adversarial system of criminal justice.37 Other
issues relating to the “costs and fees” of criminal justice are
outside of the scope of this Article, although the continued
existence of a cash-based pretrial release system, for instance,
shows another instance of the ways in which poor people are
systematically disadvantaged by the current state of criminal
procedure in most American states.38
The Sixth Amendment dictates how American criminal
accusations are adjudicated, at least in theory:
In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an
impartial jury of the State and district wherein the
crime shall have been committed . . .; to be
confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his
defence.39

See Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (“[I]n our
adversary system of criminal justice, any person haled into court, who is too
poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided
for him.”); Duncan v. Louisiana, 391 U.S. 145, 149 (1968) (“[T]he Fourteenth
Amendment guarantees a right of jury trial in all criminal cases which—were
they to be tried in a federal court—would come within the Sixth
Amendment's guarantee.”); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329
(2009) (extending the reach of the Sixth Amendment right to confrontation).
38
Other costs and fees that can be described as automatic or
non-discretionary are beyond the scope of this article. Booking fees and the
general court costs that are assessed upon conviction, for example, are
generally assessed against anyone convicted of a criminal offense. See Wayne
A. Logan & Ronald F. Wright, Mercenary Criminal Justice, 2014 U. ILL. L. REV.
1175, 1186 (2014). Such booking fees can range from just a few dollars to
several hundred dollars. See id. at 1186 nn.71–72. Some of these fees are
imposed whether or not the charge results in a conviction. See id. at 1195
(noting that some asset forfeitures, allowing governments to seize money and
property from individuals, occur only after criminal conviction whereas others
go on regardless of the outcome in criminal proceedings).
39
U.S. CONST. amend. VI.
37

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Each of these rights has evolved over the more than two centuries
since their ratification,40 and each has been a contested site in
which stakeholders have argued the relative merits of efficiency,
fairness, accuracy, and justice.41 Nowhere in the Sixth
Amendment are these procedural safeguards guaranteed to
defendants without cost, and recently states have moved toward
charging defendants for the exercise of these rights.
Although states have charged fees for those convicted of
crimes since the nineteenth century,42 there is a new trend of
charging those facing criminal charges additional fees for the
exercise of various constitutionally mandated trial rights.43 What
might have been the first “user fee” in the criminal context was in
1846, when Michigan authorized the recovery of medical costs
from prisoners.44 Over a century later, California introduced a
mandatory crime victim fee of those convicted of crimes in 1965.45
And Michigan again showed its innovative streak when it became
the first state to charge prisoners for a portion of the costs of their
own incarceration.46 But these fees are imposed without regard to
any actions or decisions of the defendant. Fees that are assessed
only if the defendant exercises her right to counsel, or to confront
JAMES J. TOMKOVICZ, THE RIGHT TO THE ASSISTANCE OF COUNSEL 20
(2002) (“In 1791, that provision became the Sixth Amendment to the United
States Constitution.”).
41
See generally id. (discussing the development and contested history of
the different provisions of the Sixth Amendment).
42
See Logan supra 38, at 1179 (discussing the extended history of
criminal justice payments).
43
See id. at 1174–75 (discussing the increase in fees imposed on criminal
defendants for use of the criminal justice system).
44
See Lauren-Brooke Eisen, Paying for Your Time: Charging Inmates
Fees Behind Bars May Violate the Excessive Fines Clause, 15 LOY. J. PUB. INT.
L. 319, 319 (2014) (citing DALE PARENT, U.S. DEP’T OF JUSTICE, NAT’L INST. OF
JUSTICE, Recovering Correctional Costs Through Offender Fees (1990),
available at https://www.ncjrs.gov/pdffilesl/Digitization/125084NCJRS.pdf))
(“In 1846, the United States saw the birth of the first correctional fee law when
Michigan enacted legislation authorizing counties to charge sentenced jail
inmates for the costs of medical care.”).
45
Joseph Shapiro, As Court Fees Rise, The Poor Are Paying The Price,
NPR (May 19, 2014) http://www.npr.org/2014/05/19/312158516/increasingcourt-fees-punish-the-poor.
46
See id. (“Michigan, in 1984, passed the first law to charge inmates for
some of the costs of their incarceration.”).
40

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a witness, or to a jury trial, act as a surcharge on the invocation
of those rights.
A.

Right to Counsel

Described as the “master key”47 that guarantees other
procedural trial rights for those accused of crime, the right to
counsel has a long and contested history.48 Enshrined in the Sixth
Amendment49 and long held up as fundamental to a fair
adversarial system, the contours of the right to counsel have
fluctuated and evolved over modern American history.50 While
Gideon v. Wainwright and its progeny have defined the scope of
the right to counsel and its applicability to the states, battles
continue over who is entitled to court-appointed counsel, what are
the expectations of court-appointed counsel, and who must
ultimately pay for court-appointed counsel. And although the
right of an indigent defendant facing a serious charge to
court-appointed counsel is now clear,51 many states have adopted
the practice of charging defendants for their exercise of that
right.52
Gideon and its progeny had imposed constitutional
requirements on state criminal prosecutions without providing a
source of funding. As states struggled to come up with the
resources to pay for the vast numbers of appointed counsel
Yale Kamisar, The Right to Counsel and the Fourteenth Amendment,
30 U. CHI. L. REV. 1, 7 (1962).
48
See generally TOMKOVICZ, supra note 40 (outlining the lengthy history
and development of the Sixth Amendment).
49
U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial . . . and to have the Assistance of
Counsel for his defence.”).
50
See John D. King, Beyond Life and Liberty: The Evolving Right to
Counsel, 48 HARV. C.R.-C.L. L. REV. 1, 8–15 (2013) (discussing the
development, evolution, and current status of the Sixth Amendment in
American jurisprudence)..
51
See Gideon v. Wainwright, 372 U.S. 335 (1963) (finding the federal
right to court-appointed counsel for indigent defendants to also apply to
states).
52
Joseph Shapiro, As Court Fees Rise, The Poor Are Paying The Price,
NPR (May 19, 2014) http://www.npr.org/2014/05/19/312158516/increasingcourt-fees-punish-the-poor.
47

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required to allow for the ever-increasing criminal adjudication
systems, many states experimented with shifting the costs onto
the individual “consumers” of the systems, the accused.53. The
move away from government provision of the service to one in
which the user was charged was in keeping with the neo-liberal
economic project of the 1980s and 1990s.54 Before long, some state
governments took on the appearance of debt collectors, seeking to
recover the funds owed them by defendants through collection
techniques that included garnishment of wages, seizure of
property, impounding of vehicles, revocation of probation, and the
threat of sentence enhancement because of unpaid fees.55
Initially understood as a negative right that only forbade
government actors from interfering with a defendant’s ability to
choose and retain counsel of her choice,56 the right to counsel
evolved in the twentieth century into an affirmative right,
obligating the government to provide counsel to those accused of
serious crime. Powell v. Alabama57 marked the first time that the
United States Supreme Court recognized a right of a defendant to
court-appointed counsel.58 Reversing the rape convictions of nine
African American defendants tried in Alabama state court
without any meaningful appointment of counsel, the Supreme
See id. See also Wright and Logan, supra note 20, at 2059 (discussing
the emergence of fee proposals being tied to budget cuts and “special budgetary
stress for indigent criminal defense programs”).
54
See id. at 2051–52 (“In keeping with the privatization strategies
increasingly in vogue, many states tried to trim their criminal defense budgets
by shifting the costs of such services back to the consumers—indigent criminal
defendants.”).
55
See id. at 2053 (discussing the different fee collection methods used by
several states).
56
See Alfredo Garcia, The Right to Counsel Under Siege: Requiem for an
Endangered Right, 29 AM. CRIM. L. REV. 35, 42 (1991) (noting “that ‘the right
to counsel meant the right to retain counsel of one’s choice and at one’s
expense’” (quoting W. BEANY, THE RIGHT TO COUNSEL IN AMERICAN COURTS 21
(1955))); see also Scott v. Illinois, 440 U.S. 367, 370 (1979) (“There is
considerable doubt that the Sixth Amendment, as originally drafted by the
Framers of the Bill of Rights, contemplated any guarantee other than the right
of an accused in a criminal prosecution in a federal court to employ a lawyer to
assist in his defense.”).
57
287 U.S. 45 (1932).
58
See id. at 71 (finding the constitutional right to appointed counsel in
specific circumstances of capital cases).
53

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Court held for the first time that, at least in certain serious cases
in which the defendants were incapable of mounting their own
defense or retaining counsel, the Fourteenth Amendment
required states to appoint counsel for defendants.59 The Court,
stressing the serious and extreme nature of the charges and the
defendants’ inability to either represent themselves or to secure
trial counsel, created an extremely narrow rule limited to the
facts of the case before it.60 Nevertheless, Powell established the
important principle that the Sixth Amendment’s right to counsel,
through the Fourteenth Amendment, did bind the states in
certain circumstances and did endow a positive right to
court-appointed counsel, rather than a more limited negative
right against state interference.61
Three decades after Powell, Gideon v. Wainwright62 made
the right to court-appointed counsel categorical, holding in
definite terms that defendants facing serious charges in state
courtrooms had a federal constitutional right to court-appointed
counsel.63 In felony prosecutions, such as the one at issue in
Gideon, the Court rejected any weighing of factors or balancing
tests and instead found a categorical right to court-appointed

See id.
[I]n a capital case, where the defendant is unable to employ
counsel, and is incapable adequately of making his own defense
because of ignorance, feeble mindedness, illiteracy, or the like,
it is the duty of the court, whether requested or not, to assign
counsel for him as a necessary requisite of due process of the
law; and that duty is not discharged by an assignment at such
a time or under such circumstances as to preclude the giving of
effective aid in the preparation and trial of the case.
60
See id. (concluding that the specific circumstances necessitated
counsel).
61
See id. (“[W]e are of the opinion that, under the circumstances just
stated, the necessity of counsel was so vital and imperative that the failure of
the trial court to make an effective appointment of counsel was likewise a
denial of due process within the meaning of the Fourteenth Amendment.”).
62
372 U.S. 335 (1963).
63
See TOMKOVICZ, supra note 40 at 29 (“According to the Gideon Court,
the fundamental nature of the right to counsel had been established in Powell
v. Alabama—ten years before Betts was decided. Although the Powell Court
limited its holding . . . ‘its conclusions about the fundamental nature of the
right of counsel [were] unmistakable.’” (quoting Gideon, 372 U.S. at 343)).
59

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counsel.64 The expansive holding of Gideon was subsequently
extended to cases that involved actual incarceration (rather than
simply the potential for incarceration), even in misdemeanor
prosecutions.65 In Scott v. Illinois,66 however, the Court limited
the scope of the right to appointed counsel, holding that in
criminal prosecutions that do not carry the possibility of
incarceration, defendants do not enjoy any federal constitutional
right to court-appointed counsel.67
The specter of increased costs runs throughout the
Supreme Court’s right-to-counsel cases and resource constraints
continue to interfere with the vision of Gideon.68 Beginning in the
See King, supra note 50 at 10 (“Thus, in Gideon, the Court rejected a
balancing-test approach in favor of a categorical requirement of counsel, at
least in felony cases.”).
65
See Argersinger v. Hamlin, 407 U.S. 25, 40 (1972) (“[I]n those
[misdemeanors] that end up in the actual deprivation of a person's liberty, the
accused will receive the benefit of ‘the guiding hand of counsel’ so necessary
when one's liberty is in jeopardy.”).
66
440 U.S. 367 (1979).
67
See id. at 373 (“[W]e believe that . . . actual imprisonment is a penalty
different in kind from fines or the mere threat of imprisonment . . . [thus]
warrant[ing] adoption of actual imprisonment as the line defining the
constitutional right to appointment of counsel.”).
68
See King, supra note 50 at 39 (“[C]ost-based arguments have been
made against every expansion of the right to counsel.” (citing Turner v. Rogers,
131 S. Ct. 2507, 2510–11 (2011). See also Scott v. Illinois, 440 U.S. 367, 373–74
(1979); Argersinger, 407 U.S. at 49–50 (Powell, J., concurring); Gideon, 372
U.S. at 344; Powell v. Alabama, 287 U.S. 45, 72–73 (1932)). The Supreme
Court has an inconsistent record regarding whether and how it should consider
the practical costs of recognizing a new constitutional right in the field of
criminal procedure. The issue is explicitly addressed in many of the right-tocounsel cases and in Miranda v. Arizona, but some of the Justices have taken
the position that consideration of costs is always an inappropriate
consideration in construing constitutional protections for those accused of
crime. See Baldwin v. New York, 399 U.S. 36, 75 (1970) (Black, J., concurring)
(stating that the value of a jury trial far outweighs all costs to society for all
crimes and in all criminal prosecutions). For a contrary opinion, see Justice
Breyer’s suggestion that judges “in applying a text in light of its purpose,
should look to consequences, including ‘contemporary conditions, social,
industrial, and political, of the community to be affected.’ And since ‘the
purpose of construction is the ascertainment of meaning, nothing that is
logically relevant should be excluded.’” Stephen Breyer, ACTIVE LIBERTY:
INTERPRETING OUR DEMOCRATIC CONSTITUTION 18 (2005). Justice Alito’s
concurring opinion in DA’s Office v. Osborne shows a justice who is considering
64

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1980s and 1990s, states struggled to pay for the costs associated
with a dramatically expanding criminal justice system. The size
of the criminal justice system exploded with the War on Drugs
and costs of every aspect of the system rose accordingly. In the
three decades between 1980 and 2010, the incarcerated
population in the United States rose from approximately 500,000
to more than 2.3 million.69 During roughly the same period, total
expenditures by states and municipalities on corrections rose
from approximately $17 billion to approximately $71 billion.70
And among all of the other associated costs, states had to find the
money to pay the court-appointed defense lawyers that the
system required.
The trend of charging criminal defendants for
court-appointed counsel took off in the 1990s, growing from seven
jurisdictions in 1994 to 27 in 2006.71 By 2017, at least 43 states
had adopted the practice.72 The explosion of such fees took place
in geographically and politically diverse states from California
and Massachusetts to Kansas and Georgia.73 Typically, the
the real-world costs of recognizing a new constitutional protection. See DA’s
Office v. Osborne, 557 U.S. 52, 83–84 (2009) (Alito, J., concurring) (discussing
the financial implications of post-conviction DNA testing). As support for his
position against recognizing a right of defendants to obtain and test DNA postconviction, Alito referred to the “severe backlogs in state crime labs.” Id. at 84.
69
JAIL, PRISON, PAROLE, AND PROBATION POPULATIONS IN THE US, 19802013, https://felonvoting.procon.org/view.resource.php?resourceID=004353
(last visited Feb. 22, 2018).
70
United States Department of Education, State and Local Expenditures
on Corrections and Education (July 2016),
https://www2.ed.gov/rschstat/eval/other/expenditures-correctionseducation/brief.pdf.
71
See Wright & Logan, supra note 20, at 2052–54 (noting the uptick in
jurisdictions imposing fees on defendants).
72
See Shapiro, supra note 52 (“The NPR survey found, with help from the
Brennan Center for Justice at New York University School of Law, that in at
least 43 states and D.C., defendants can be billed for a public defender.”).
73
See Wright & Logan, supra note 20, at 2054. Wright and Logan
document a fascinating political and cultural dynamic within the public
defender community around this issue of allocating some of the costs of
appointed counsel onto defendants, with the higher-level administrators
generally in favor of such mechanisms (if only begrudgingly in the face of
inadequate state funding) and the rank-and-file public defenders generally
opposed to the assessment of such fees on their clients, for both philosophical
and pragmatic reasons. See id. at 2047 (articulating the “counterintuitive”

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genesis of these “user fees” for criminal defendants using
appointed counsel arose out of a budgetary shortfall and indigent
defense funding crisis, with the leadership of public defender
agencies reconciling themselves to support such fees as better
than the alternative, in light of budget cuts by the state
legislatures.74 Coalitions between tough-on-crime legislators and
leaders of the criminal defense establishment have led to the
proliferation of these fees.75
States vary in the specifics of how they charge defendants
for their court-appointed counsel. Some assess application fees at
the beginning of a criminal prosecution, while others charge a
recoupment fee that is added to other court costs at the conclusion
of the prosecution.76 Of those that charge after-the-fact
recoupment fees, some assess a flat fee for each charge, and some
actually charge the defendant for all defense costs accrued in the
defense of a case, including costs of defense experts and
investigators.77 States also vary greatly in the extent to which
they factor in a defendant’s ability to pay, with some states
ignoring that factor altogether.78
B.

Right to Confront

dynamic of those within the public defender system who support user fees and
those that resist those some fees).
74
See id. at 2055 (“Their [the defense leadership’s] objectives are to avert
immediate budgetary troubles and to establish credibility with legislators and
other "repeat players" in the arena of crime politics, such as law enforcement
officials.”).
75
See id. at 2070 (describing the political coalitions that “have made
possible the recent broader private subsidization movement, aptly referred to
as ‘pay-as-you-go’ criminal justice”).
76
See id. at 2046 (discussing the variation in ways that states assess
users fees and noting the shift from recoupment fees to up-front application
fees in order to decrease the administrative burden).
77
Beth A. Colgan, Paying for Gideon, 99 IOWA L. REV. 1929, 1931, n.5
(2014) (“In addition to attorney’s fees, indigent defendants may be charged for
the costs of experts, investigators, and other costs related to their defense.”).
78
See id. at 1929–30 (“[I]n many jurisdictions, consideration of whether
one has the ability to pay for counsel is essentially meaningless, whereas in
other jurisdictions, courts are required to impose recoupment without any such
consideration at all.”).

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No area of criminal procedure has received more attention
from scholars and courts over the past decade or so than the right
to confront adverse witnesses. The constitutional command that
“[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him”79
recently became the basis of yet another fee that can be imposed
on criminal defendants. This provision of the Constitution was
subjected to a radical reappraisal in Crawford v. Washington.80
Following that decision, this portion of the Sixth Amendment is
now interpreted to provide a broad procedural safeguard for
criminal defendants at trial. In some instances, this right
requires the prosecution to presents its lab analysis witnesses.
This costly venture was held by the Supreme Court to be
necessary to satisfy the criminal defendants’ confrontation
right.81 But who should be responsible for the costs associated
with the appearance of those witnesses? One response of
legislatures worried about the cost of defendants exercising these
rights has been to impose the costs of doing so on the defendants
themselves.
After receiving little attention for the first century after its
adoption, the Confrontation Clause was interpreted in Mattox v.
United States82 to be a “general rule” that “must occasionally give
way to considerations of public policy and the necessities of the
case.”83 This relaxed approach to the right of confrontation was
further endorsed in 1980 in Ohio v. Roberts,84 in which the
Supreme Court allowed out-of-court statements to be used
U.S. CONST. amend. VI.
541 U.S. 36 (2004).
81
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329 (2009) (concluding
that admission of lab analysis certificates against a defendant at trial violates
his Sixth Amendment right to confront the witnesses against him).
82
156 U.S. 237 (1895).
83
Id. at 242. In Mattox, the defendant’s murder conviction had been
reversed by the Supreme Court. Two witnesses who had testified at his initial
trial had died by the time of his second trial and their testimony was read to
the second jury over the defendant’s Confrontation Clause objection. Id. at 241.
The Supreme Court affirmed Mattox’s second conviction, holding that the
dictates of the Confrontation Clause were not absolute and that the reading of
the prior testimony did not contravene “[t]he primary object” of the Clause. Id.
at 242.
84
448 U.S. 56 (1980).
79
80

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against a criminal defendant as long as the declarant was shown
to be unavailable and the out-of-court statement possessed
“adequate ‘indicia of reliability.’”85
In 2004 the Supreme Court in Crawford v. Washington86
breathed new life into the Confrontation Clause and overturned
Ohio v. Roberts in no uncertain terms.87 The Court held that
testimonial out-of-court statements could be admitted against a
defendant only if the declarant was unavailable to testify and if
the defendant had a prior opportunity to confront the witness
about the subject matter of the statement.88 In Crawford, the
Supreme Court rejected the Roberts test as having departed
impermissibly from the original meaning of the Confrontation
Clause.89 The change in approach was dramatic and immediate,
and courts struggled to accommodate the new approach to the
confrontation right. The Court quickly undertook the task of
refining and clarifying its understanding of the confrontation
right—seeking first to define “testimonial” in Davis v.
Washington90 and Hammon v. Indiana,91 and to address whether
the Confrontation Clause had any regard for non-testimonial
hearsay,92 as well as to clarify whether and how a defendant
could forfeit the protections of the Confrontation Clause through
her own wrongful conduct.93

Id. at 66.
541 U.S. 36 (2004).
87
See id. at 68–69 (overruling Ohio v. Roberts).
88
See id. at 68 (“Where testimonial evidence is at issue, however,
the Sixth Amendment demands what the common law required: unavailability
and a prior opportunity for cross-examination.”).
89
See id. at 63 (“The unpardonable vice of the Roberts test, however, is
not its unpredictability, but its demonstrated capacity to admit core
testimonial statements that the Confrontation Clause plainly meant to
exclude.”).
90
547 U.S. 813 (2006).
91
546 U.S. 976 (2005).
92
See Crawford, 541 U.S. at 68 (“Where nontestimonial hearsay is at
issue, it is wholly consistent with the Framers' design to afford the States
flexibility in their development of hearsay law . . . .”).
93
Giles v. California 554 U.S. 353 (2008) (“We consider whether a
defendant forfeits his Sixth Amendment right to confront a witness against
him when a judge determines that a wrongful act by the defendant made the
witness unavailable to testify at trial.”).
85
86

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In 2009 in Melendez-Diaz v. Massachusetts,94 the Court
again considered the scope of the new confrontation right,
addressing whether a criminal defendant had similar
confrontation rights when the out-of-court statement in question
was a forensic analysis.95 In Melendez-Diaz, the Court considered
whether a laboratory analysis from a state-employed lab
technician certifying that a substance was cocaine fell within the
scope of the Confrontation Clause.96 The majority in
Melendez-Diaz concluded that the laboratory certificates were
testimonial statements and that the analysts were witnesses
against the defendant for purposes of Sixth Amendment
protection.97 Accordingly, because the defendant had no prior
opportunity to cross-examine the witnesses (and because the
witnesses were not shown to have been unavailable at trial),
introduction of the laboratory certificates violated the defendant’s
Confrontation Clause rights.98 Consequently, the prosecution
would be required to present the lab technician for
cross-examination if it intended to introduce a laboratory
certificate.99 The Court did not resolve the question of who should
bear the costs of presenting such a witness.100
Predictions about the effects of the Melendez-Diaz decision
on the administration of criminal justice were swift, extreme, and
divided. Despite Justice Scalia’s reassurance in the majority
opinion that “the sky will not fall,”101 Massachusetts Attorney
General Martha Coakley predicted that misdemeanor drug
557 U.S. 305 (2009).
See id. at 309 (discussing the procedural posture and issue presented in
the case).
96
See id. (stating the issue before the Court).
97
See id. at 312 (“In short, under our decision in Crawford the analysts'
affidavits were testimonial statements, and the analysts were ‘witnesses’ for
purposes of the Sixth Amendment.”).
98
See id. at 329 (stating the conclusion of the Court).
99
See id. (requiring the prosecution to present the lab analysist in order
to satisfy the defendant’s Confrontation Clause right).
100
See id. at 341 (Kennedy, J., dissenting) (discussing the costs imposed
on the administration of justice as a result of the majority’s decision).
101
Id. at 325. In his majority opinion, Justice Scalia claimed that the “dire
predictions” of the dissent were exaggerated because “it is unlikely that
defense counsel will insist on live testimony whose effect will be merely to
highlight rather than cast doubt upon the forensic analysis.” Id. at 328.
94
95

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prosecutions would “grind to a halt” because of the decision.102
Alongside the doctrinal arguments about the meaning and
requirement of the Sixth Amendment’s Confrontation Clause and
its applicability to the States, the Justices engaged in a lengthy
discussion in Melendez-Diaz about the costs of recognizing a
constitutional prohibition against out-of-court statements in this
context.103 The dissent focused on the “heavy societal costs” that
the majority opinion imposed, both in terms of the likelihood that
some guilty defendants would go free but also the increased
financial cost of criminal trials now that states would be forced to
comply with this understanding of the confrontation right.104 The
majority recognized that its decision “may make the prosecution
of criminal trials more burdensome.”105 It reasoned first, however,
that any potential increased cost of prosecution was not a valid
consideration in construing constitutional provisions106 but also

Ivana Deyrup, Causing the Sky to Fall: The Legal and Practical
Implications of Melendez-Diaz, HARV. L. & POL’Y REV. at 1. In her article,
Deyrup provides useful statistics on the early impact of Melendez-Diaz and on
states’ response to the decision. Id. Chief of Law Enforcement for Utah AG
said, “This case may well have the biggest financial impact in many years on
the cost of policing and prosecution.” Ken Wallentine, 12 Supreme Court Cases
Affecting Cops, POLICEONE.COM (Nov. 11, 2009),
https://www.policeone.com/legal/articles/1964272-PoliceOne-Analysis-12Supreme-Court-cases-affecting-cops/.
103
Compare Melendez-Diaz v. Massachusetts, 557 U.S. 305, 326 (2009)
(“Despite [this rule’s widespread use among states], there is no evidence that
the criminal justice system has ground to a halt in the States that, one way or
another, empower a defendant to insist upon the analyst's appearance at
trial.”); and id. at 328 (“[T]here is little reason to believe that our decision
today will commence the parade of horribles respondent and the dissent
predict.”); with id. (Kennedy, J., dissenting) at 341 (“By requiring analysts also
to appear in the far greater number of cases where defendants do not dispute
the analyst's result, the Court imposes enormous costs on the administration of
justice.”).
104
See id. at 343. (“The Court purchases its meddling with
the Confrontation Clause at a dear price, a price not measured in taxpayer
dollars alone. Guilty defendants will go free, on the most technical grounds, as
a direct result of today's decision, adding nothing to the truth-finding
process.”).
105
Id. at 325.
106
See id. at 325 (“The Confrontation Clause may make the prosecution of
criminals more burdensome, but that is equally true of the right to trial by jury
and the privilege against self-incrimination. The Confrontation Clause--like
102

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that the economic predictions of the dissent were exaggerated and
overblown.107 This conversation about the economic costs of the
newly-understood right to confrontation continued in subsequent
Confrontation Clause cases,108 and has not been resolved to the
satisfaction of some prosecutors and state legislators who are
trouble by the increased costs of compliance.
Another of the practical concerns expressed after
Melendez-Diaz was the prospect of gamesmanship on the part of
defendants and their lawyers in refusing to stipulate to
certificates of analysis and thereby demanding the presence of the
drug analyst without any meaningful intention to confront or
cross-examine the witness.109 A representative from a Virginia
Department of Forensic Science laboratory described the problem
in vivid terms: in responding to 13 subpoenas, the analysts “spent
74 hours out of the office, traveled 2,600 miles and testified only
twice for a total of 10 minutes. They were never questioned by the
defense.”110
In response to the Melendez-Diaz decision, states quickly
drafted legislation to contain costs and to head off the potential
for gamesmanship among defendants (or defense attorneys) who
might exercise their right to confront scientific witnesses solely in
hopes that those witnesses would not appear in court. Kansas, for
example, attempted to address this problem by allowing the
those other constitutional provisions--is binding, and we may not disregard it
at our convenience.”).
107
See id. (“We also doubt the accuracy of respondent's and the dissent's
dire predictions.”).
108
See, e.g., Bullcoming v. New Mexico, 564 U.S. 647, 652 (2011) (“We
hold that surrogate testimony of that order does not meet the constitutional
requirement. The accused's right is to be confronted with the analyst who
made the certification, unless that analyst is unavailable at trial, and the
accused had an opportunity, pretrial, to cross-examine that particular
scientist.”).
109
See Deyrup, supra note 102 (discussing the concern of Melendez-Diaz
opponents that defendants would call analysts without intending to contest
their conclusions).
110 See id. n.45 (citing Alan Cooper, Prosecutors, analysts deal with
Melendez-Diaz fallout, VIRGINIA LAWYERS WEEKLY (Nov. 30, 2009),
http://valawyersweekly.com/blog/2009/11/30/prosecutors-analysts-deal-withmelendez-diaz-fallout/).

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admission of a certificate of analysis over the defendant’s formal
objection “unless it appears from the notice of objection and
grounds for that objection that the conclusions of the
certificate . . . will be contested at trial.”111 The Kansas Supreme
Court held that this statute violated the Confrontation Clause, as
interpreted in Melendez-Diaz.112
Statutes that shifted the burden of production onto
criminal defendants seemed clearly unconstitutional after
Melendez-Diaz,113 but notice-and-demand statutes seemed to
present a way for states to accommodate the newly-invigorated
right to confront while still containing costs.114 The majority
opinion in Melendez-Diaz itself provided guidance to states
considering this approach, cautioning that states could not shift
the burden of calling witnesses onto the defendant but could
require that the defendant object in advance of trial to the state’s
use of testimonial hearsay at trial.115
Just four days after deciding Melendez-Diaz, the Supreme
Court agreed to consider the constitutionality of Virginia's
notice-and-demand statute in Briscoe v. Virginia.116 Seeing the
writing on the wall, however, Virginia’s General Assembly
quickly convened and altered its notice-and-demand statute to
conform to the requirements set forth in Melendez-Diaz.117 The
Supreme Court remanded Briscoe to the Supreme Court of
KAN. STAT. ANN. § 22-3437(3) (2008).
State v. Laturner, 218 P.3d 23, 39 (Kan. 2009) (striking portions of the
Kansas statute as unconstitutional under the Sixth Amendment).
113
See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009)
(“Converting the prosecution’s duty under the Confrontation Clause into the
defendant’s privilege under state law or the Compulsory Process Clause shifts
the consequences of adverse witness no-shows from the State to the accused.”).
114
See Deyrup, supra note 102. (distinguishing between burden shifting
statutes and notice-and-demand statutes).
115
See Melendez-Diaz at 324 (“The Confrontation Clause imposes a
burden on the prosecution to present its witnesses, not on the defendant to
bring those adverse witnesses into court.”). The Court saw true notice-anddemand statutes as simply accelerating the timing of the defendant’s
Confrontation Clause objection and therefore saw no constitutional infirmity
with these statutes. Id. at 326–27.
116
559 U.S. 32 (2010).
117
See VA. CODE ANN. §§ 19.2-187, 19.2-1878.1.
111
112

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Virginia, which concluded that the old notice-and-demand statute
impermissibly shifted the burden of proof onto the defendant and
reversed the defendant’s conviction.118
Virginia’s revised notice-and-demand statute, passed
during a special session in 2009, responded not only to the
Melendez-Diaz decision but also to the predicted dramatic rise in
subpoenas for drug analysts.119 The notice-and-demand statute
passed in Virginia requires any prosecutor wishing to introduce a
certificate of analysis at trial in lieu of live testimony to provide
notice to the defendant at least 28 days prior to the trial along
with a notice of the defendant’s right to object to such out-of-court
testimony.120 The defendant then has fourteen days within which
to object to the admission of the certificate.121 If the defendant
files such a timely objection, the certificate is rendered
inadmissible. At no point is the defendant required to state a
reason for her objection or to declare an intention to
cross-examine any live witness who might appear.122 The majority
of American jurisdictions have now adopted some form of
notice-and-demand statute similar to this.123 Some states go

See Cypress v. Commonwealth, 699 S.E.2d 206, 214–15 (Va. 2010)
(stating the conclusion of the Virginia Supreme Court).
119
In the nine months preceding the Melendez-Diaz decision, forensic
analysists were subpoenaed an average of 528 times per month. See Stephen
Wills Murphy & Darryl K. Brown, The Confrontation Clause and the High
Stakes of the Court’s Consideration of Briscoe v. Virginia, 95 VIRGINIA LAW IN
BRIEF 97, 98 (2010). In July, the month following the Melendez-Diaz decision,
forensic analysts were subpoenaed 1885 times with similar totals for
subsequent months, See id.; see also Anne Hampton Andrews, The MelendezDiaz Dilemma: Virginia’s Response, A Model to Follow, 19 WM. & MARY BILL
RTS. J. 419, 440 (2010) (describing similar statistics concerning the increase in
subpoenas following the Melendez-Diaz decision). The Virginia Department of
Forensic Science painted a fairly bleak picture of the financial implications of
Melendez-Diaz and the Commonwealth’s ability to assume that burden—
concerning the number of needed analysts, vehicles, and budgetary increases
to satisfy the new requirement. See id. (discussing the realistic implications of
the decision on Virginia’s financial state at that time).
120
See VA. CODE ANN. § 19.2-197.1(A)(1).
121
See VA. CODE ANN. § 19.2-197.1(B).
122
See VA. CODE ANN. § 19.2-197.1(B).
123
For a good general description and taxonomy of notice-and-demand
statutes, see Jennifer Sokoler, Note: Between Substance and Procedure: A Role
118

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further and also require a certification that the requesting party
intends to actually conduct a cross-examination.124 When the
defendant does not then conduct the cross-examination certified
to, she is charged an additional fee.125 Although such a
requirement seems to violate the defendant’s Confrontation
Clause rights as described in Melendez-Diaz, they remain on the
books in some states.
When Virginia’s General Assembly adopted the
notice-and-demand procedures, it simultaneously added another
provision that imposed a fee on defendants who exercised their
rights under Melendez-Diaz.126 This was a change from the
previous provision, which had provided that:
The accused in any hearing or trial in which a
certificate of analysis is admitted into
evidence . . . shall have the right to call the person
performing such analysis or examination . . . as a
witness therein, and examine him in the same
manner as if he had been called as an adverse
witness. Such witness shall be summoned and
appear at the cost of the Commonwealth.127
The new statute amends the final sentence as follows:
Such witness shall be summoned and appear at the
cost of the Commonwealth; however, if the accused
calls the person performing the analysis or
examination as a witness and is found guilty of the
for States’ Interests in the Scope of the Confrontation Clause, 110 COLUM. L.
REV. 161, 181–96 (2010).
124
Alabama requires the requesting party to “include a statement of the
basis upon which the requesting party intends to challenge the findings
contained on the certificate of analysis.” ALA. CODE ANN. § 12-21-302. If the
defendant “fails to conduct the cross-examination previously certified to,” then
she is assessed the costs of bringing the witness to court. ALA. CODE ANN. §
12-21-302(b).
125 See id. (“If the request for subpoena is granted, and the requesting
party subsequently fails to conduct the cross-examination previously certified
to, the court shall assess against the requesting party, all necessary and
reasonable expenses incurred for the attendance in court of the certifying
witness.”).
126
See VA. CODE ANN. § 19.2-187.1(F) (2016) (imposing a fee on defendants
who demand confrontation and then are found guilty).
127
VA. CODE ANN. § 19.2-187.1 (2008) (amended 2016) (emphasis added).

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charge or charges for which such witness is
summoned, $50 for expenses related to that
witness’s appearance at hearing or trial shall be
charged to the accused as court costs.128
With one hastily appended provision, Virginia imposed a tax on
the exercise of a defendant’s constitutional right to confront
witnesses.129
Several states currently impose costs on defendants who
choose to exercise their confrontation right as defined in
Melendez-Diaz, either explicitly as Virginia does or generally
under a rule that imposes costs on defendant for each witness
called.130 The United States Supreme Court has not addressed in
any of its recent Confrontation Clause decisions which party
would bear the costs of producing these witnesses, or whether
there is any constitutional problem with assessing defendants an
extra fee for exercising their right to confront adverse witnesses.
C.

Right to Jury Trial

The right to trial by jury is central to American notions of
criminal justice, but even this right has become the subject of
user fees. The Sixth Amendment guarantees: “In all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein
the crime shall have been committed . . . .”131 As with the
examples above concerning the defendant’s right to counsel and
right to confront adverse witnesses, many states charge
defendants for the exercise of their right to a jury trial. In
VA. CODE ANN. § 19.2-187.1(F) (2016) (emphasis added).
See id.
130
ALA. CODE ANN. § 12-21-302 (assessing all “necessary and reasonable”
expenses if the defendant requests and receives a subpoena and then fails to
conduct a cross-examination; COLO. REV. STAT. § 18-1.3-701 (imposing
“reasonable” fees, including for chemical analysis, on the defendant upon a
motion by the prosecutor); LA. REV. STAT. ANN. § 13:847 (imposing on the
defendant generalized witness subpoena fees); N.C. GEN. STAT. § 7A-304
(imposing a $600 fee to be assessed against the defendant); S.D. CODIFIED
LAWS § 23A-27-27 (imposing fees on the defendant in the judgment as costs for
witnesses, blood test fees, and other chemical analysis test fees); VA. CODE
ANN. § 19.2-187.1(B) (imposing a $50 fee if found guilty).
131
U.S. CONST. amend. VI.
128
129

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Apprendi v. New Jersey,132 Justice Scalia wrote that the
“jury-trial guarantee was one of the least controversial provisions
of the Bill of Rights. It has never been efficient; but it has always
been free.”133 In many states, that is no longer true.
Several states explicitly add a fee for the election of a jury
trial. Delaware charges an additional $78 per charge if the
defendant elects a jury trial instead of a bench trial.134
Colorado,135 Illinois,136 Mississippi,137 Missouri,138 Montana,139
Nevada,140 Ohio,141 Oklahoma,142 Texas,143 Virginia,144 West

530 U.S. 466 (2000).
Id. at 498 (Scalia, J., concurring).
134
See DEL. CRIM. R. GOV'G C.P. 58 (charging defendants in the Court of
Common Pleas $52 for a non-jury case and $130 for a jury case).
135
See Christie v. People, 837 P.2d 1237, 1244 (Colo. 1992) (stating that
the state’s jury fee “does not constitute an undue burden on the right to a jury
trial”).
136
See People ex rel. Flanagan v. McDonough, 180 N.E.2d 486, 487 (1962)
(discussing the permissibility of state law that allows for jury fees with an
increase in fee associated with a 12-person jury).
137
See MISS. CONST. ANN. Art. 14, § 261.
138
See State v. Wright, 13 Mo. 243, 244 (1850) (rejecting the defendant’s
argument that the jury tax violated Missouri’s constitutional guarantee “that
right and justice ought to be administered without sale, denial or delay”).
139
See State v. Fertterer, 841 P.2d 467 (Mont. 1992) (“[T]he
constitutionality of the foregoing statute [allowing the court to assign costs for
the jury as part of sentence] has been upheld against claims of a violation of
due process rights under the Constitution.”), overruled on other grounds by
State v. Gatts, 928 P.2d 114 (Mont. 1996).
140
See NEV. REV. STAT. ANN. § 178.3975 (allowing costs to be assessed on
defendants); but see Korby v. State, 565 P.2d 1006 (1977) (rejecting jury and
associated fees when a defendant is acquitted).
141
See OHIO REV. CODE ANN. § 2947.23 (imposing costs on a defendant for
a jury if the jury has been sworn).
142
See OKLA. STAT. ANN. tit. 28, § 153 (authorizing a thirty-dollar fee
imposed on a defendant for any time a jury is requested).
143
See TEX. CRIM. PROC. CODE ANN. art. 102.004 (authorizing jury fees by
court); see also TEX. CRIM. PROC. CODE ANN. art. 102.0045 (authorizing an
additional jury cost of four dollars to be used to reimburse counties for the cost
of jury services).
144
See Kincaid v. Commonwealth, 105 S.E.2d 846, 848 (Va. 1958) (“The
costs of a jury are an expense incident to the prosecution, and its collection
violates no constitutional right of the accused.”)
132
133

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Virginia,145 and Wisconsin146 all provide expressly for an
additional charge to be assessed against a defendant who elects a
jury and is convicted. Other states have general statutes
authorizing assessment of the costs and fees of the prosecution
against a defendant, which could be read to include a larger fee if
the defendant was tried by a jury. Washington even offers
defendants a choice between a 6-person and a 12-person jury,
with the larger jury commanding double the price.147
Many states employ a two-tiered criminal adjudication
system, with misdemeanors being tried initially to a judge but
then subject to a de novo appeal by the defendant to a higher
court, in which the case may be decided by a jury if state or
federal law grant the defendant that right.148 Most of the states
with such a system assess an additional charge for any defendant
who chooses to exercise her right to a jury trial, and in most
instances the defendant must first have the case decided by a
judge. Although these systems protect defendants’ rights in that
they give the accused two bites at the apple, they also introduce a
surcharge for the defendant who wants the protection of the jury.
Arkansas has a two-tiered criminal trial system, with
misdemeanors being triable initially either in district court or
circuit court, entirely at the discretion of the prosecutor.149
Because anyone accused of any criminal violation has a right to
be tried by a jury according to state law, those initially convicted
in district court have the right to a de novo appeal to circuit court,
in which that person may elect to be tried by a jury.150 In order to
See State ex rel. Ring v. Boober, 488 S.E.2d 66, 71 (W. Va. 1997)
(rejecting defendant’s argument that the potential jury fee “imposed an
unreasonable burden upon the exercise of an indigent defendant's
constitutional right to a jury trial”).
146
See WIS. STAT. ANN. § 814.51 (authorizing the assessment of one entire
day’s jury fees for a jury, including all mileage costs against the defendant if a
jury is demanded and is later withdrawn within two business days of trial).
147
See Wash. CRR 6.1 (allowing defendant to elect between a jury of six or
twelve); WASH. REV. CODE ANN. § 36.18.016 (imposing different costs based on
the size of the jury).
148
Massachusetts, Virginia, Arkansas where else…
149
See Arkansas Atty. Gen. Op. No. 2001-298 (Oct. 22, 2001).
150
See ARK. R. CRIM. P. Rule 28.1 (detailing the right to a de novo appeal
in circuit court from a trial court decision).
145

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exercise that right to a jury trial, however, the accused must pay
an extra $165 fee, which is nonrefundable without regard to
whether the charge results in conviction, acquittal, or
dismissal.151 Neither the Arkansas Code nor the Rules of
Criminal Procedure appear to allow such fees to be waived in the
case of indigent defendants attempting to exercise their rights to
a jury trial.152
In Duncan v. Louisiana,153 the Supreme Court held that
the right to a jury trial was fundamental to the American system
of criminal justice and so bound the states through the
Fourteenth Amendment.154 The Court in Duncan explained the
importance of the jury: “An inestimable safeguard against the
corrupt or overzealous prosecutor and against the compliant,
biased, or eccentric judge.”155 Duncan held that states were
required to provide a jury trial for any defendant facing a “serious
offense,” defined in that case as one carrying a potential sentence
of at least a two-year period of incarceration.156 Two years after
Duncan, the Court extended its definition of “serious offense” to
include any crime for which the authorized imprisonment was at

This fee consists of a $150 filing fee and an additional $15 “technology
fee.” See Ark. Sup. Ct. & Ct. of App 6-7 (detailing the fees taken from a
defendant which can be recovered on reversal).
152
See ARK. CODE ANN. § 21-6-403; see also Brief for Arkansas Public Law
Center as Amicus Curiae Supporting a Petition for a Writ of Certiorari,
Carrick v. Hutchinson, 2015 WL 5466138, at 7, n.3 (2015) (No. 15-204). Those
defendants whose cases originate in circuit court are not required to pay either
of these fees in order to have their cases heard by a jury. See ARK. CODE ANN. §
21-6-403(f).
153
391 U.S. 145 (1968).
154
See id. at 149
Because we believe that trial by jury in criminal cases is
fundamental to the American scheme of justice, we hold
that the Fourteenth Amendment guarantees a right of jury
trial in all criminal cases which—were they to be tried in a
federal court—would come within the Sixth
Amendment's guarantee.
155
Id. at 156. Patrick Henry defended the importance of the jury as a local
community protection against government over-reach and intrusion: “This
gives me comfort—that as long as I have existence, my neighbors will protect
me.” NEIL COGAN, THE COMPLETE BILL OF RIGHTS 438 (1998).
156
Duncan, 391 U.S. at 161–62.
151

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least six months.157 A crime for which the maximum authorized
punishment is less than six months’ incarceration is presumed to
be a petty offense, and therefore outside of the scope of the federal
constitutional right to a trial by jury.158 The Supreme Court has
allowed, however, that this presumption of pettiness is rebuttable
if the defendant can show other indicia that demonstrate
seriousness.159
Whether specific or general, waivable or not on the basis of
indigency, and explained to the defendant in advance or added on
to her bill after trial, each of these additional fees acts as a tax on
the exercise of the jury trial right. States differ in their
application of jury trial fees and the amount that defendants are
charged. And many states have resisted the temptation to impose
additional fees for defendants who exercise their right to a jury
trial.160 But in many jurisdictions across the country, criminal
defendants now must decide between keeping their costs down
and exercising the right to a trial by jury.
III.

Doctrinal Limitations of User Fees

Although the presumption in American courts is that the
government bears the costs of prosecuting criminal cases,
legislatures may impose specific costs on the defendant by
statute.161 When such specific statutory authorization exists,

See Baldwin v. New York, 399 U.S. 66, 69 (1970) (“[N]o offense can be
deemed ‘petty’ for purposes of the right to trial by jury where imprisonment for
more than six months is authorized.”); see also Blanton v. City of North Las
Vegas, 489 U.S. 538, 542 (1989) (“The possibility of a sentence exceeding six
months, we determined, is ‘sufficiently severe by itself’ to require the
opportunity for a jury trial.” (quoting Baldwin, 399 U.S. at 69, n.6)).
158
See Blanton, 489 U.S. at 543 (stating that for society’s purposes, a
crime carrying a maximum term of six months or less can be understood as
petty).
159
See id. (discussing the rebuttable presumption of a crime carrying a
sentence of six months or less as not entitled to a jury trial).
160
Alaska, Connecticut, Idaho, Kansas, Michigan, New Hampshire, North
Dakota, Ohio, and South Carolina are a few states in which either the
legislature or the courts have decidedly rejected fees for jury trials.
161 See United States v. Bevilacqua, 447 F.3d 124, 127 (1st Cir. 2006)
(“American legal tradition does not, absent specific statutory authority, require
157

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courts tend to defer to the legislative prerogative to impose such
costs and reject challenges to those fees as unconstitutional.162
Courts have placed limits on a legislature’s power to impose these
costs and fees, however, where they are seen as having the
potential to chill the exercise of the right in question.163
One of the earliest attempts to challenge the imposition of
fees on indigent defendants who had been appointed counsel at
trial was in the 1972 case of James v. Strange.164 David Strange
was charged with first-degree robbery.165 With the assistance of
court-appointed counsel, Mr. Strange entered a plea of guilty to
the reduced charge of pocket picking and was given a suspended
sentence.166 When Mr. Strange was subsequently assessed a $500
fee for the recoupment of payment made by the state to his
attorney, he argued that the assessment of the fee violated his
constitutional right to equal protection.167 Although the Supreme
Court agreed with Mr. Strange that the Kansas recoupment fee
was unconstitutional, Justice Powell wrote a narrow opinion that
focused on the specifics of the Kansas statue.168 The Kansas
recoupment statute provided that an indigent defendant who does
not repay the amount assessed within 60 days of being notified of
the obligation would have a judgment docketed against her and
allowed for a lien to be executed on the defendant’s real estate.169
The state was also entitled to garnish the defendant’s wages, and
the defendant was not entitled to exemptions that Kansas law
allowed for other debtors.170 The Supreme Court found that the
defendants to reimburse the government for the costs of their criminal
investigations or their criminal prosecutions.”).
162 See Logan & Wright, supra note 38, at 1207 (“On the whole, challengers
lose more often than they win because courts defer to legislative judgments in
enacting statutes that require the payment of specific costs or fees.”).
163 See id. at 1209. (citing Burns v. Ohio, 360 U.S. 252, 258 (1959); Griffin v.
Illinois, 351 U.S. 12, 16-19 (1956); State v. Dudley, 766 N.W.2d 606, 617 (Iowa
2009); State v. Tennin, 674 N.W.2d 403, 410-11 (Minn. 2004); State v. Webb,
591 S.E.2d 505, 509-10 (N.C. 2004)).
164
407 U.S. 128 (1972).
165
Id. at 129.
166
Id.
167
Id.
168
Id. at 135–36.
169
Id. at 130.
170
Id. at 131

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relatively unfavorable treatment shown to debtors under the
recoupment statute when compared to other types of debtors
violated principles of equal protection.171 The Court found it
especially troubling that even acquitted defendants were not only
charged the recoupment fee, but were also subject to the
unfavorable recovery terms and denied basic debtor
exemptions.172
The Court in Strange went to great lengths to avoid the
broader issue of whether recoupment statutes violated the Sixth
Amendment by chilling or deterring the exercise of the right to
counsel. While the court below had ruled that the Kansas statute
was unconstitutional because it “needlessly encourages indigents
to do without counsel and consequently infringes on the right to
counsel,”173 the Supreme Court decided the case on the much
narrower equal protection grounds shown by the way the
different debtors were treated under Kansas law.174 There is
evidence that the Court did not want to discourage the
experimentation that was going on among the states in their
attempts to fund the growing need for indigent defense counsel.175
The Court declined Mr. Strange’s invitation for a sweeping ruling
that would eliminate or discourage recoupment fees: “Given the
wide differences in the features of these statutes [among the
various states that allow for recoupment of fees for
court-appointed counsel], any broadside pronouncement on their
general validity would be inappropriate.”176
The Supreme Court addressed the more general issue of
the constitutionality of recoupment fees just two years later in
1974 in Fuller v. Oregon.177 In Fuller, the Court considered a
See id. at 140–41 (“[T]o impose these harsh conditions on a class of
debtors who were provided counsel as required by the Constitution is to
practice, no less than in Rinaldi, a discrimination which the Equal Protection
Clause proscribes.”).
172
Id. at 139.
173
Id. at 134 (quoting 323 F. Supp. 1230, 1233 (D. Kan. 1971)).
174
See id. at 140–41 (concluding that the Kansas statute constituted a
violation of the Equal Protection Clause).
175
Powell correspondence with Wilkinson.
176
James v. Strange, 407 U.S. 128, 133 (1972).
177
417 U.S. 40 (1974).
171

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32

challenge to Oregon’s recoupment statute, by which criminal
defendants were required to repay costs of their own defense to
the state after conviction.178 Charged with third-degree sodomy
and other charges, Mr. Fuller was appointed counsel by the trial
court after it concluded that he was indigent and therefore unable
to hire his own lawyer.179 His court-appointed lawyer in turn
hired an investigator to work on Fuller’s case.180 After pleading
guilty to the charge of third-degree sodomy, Fuller was sentenced
to a five-year period of probation, conditioned upon him
reimbursing the state for the costs of his defense, including both
his lawyer’s and investigator’s fees and costs.181
Fuller appealed his sentence, arguing that the state
violated the Constitution in conditioning his successful
completion of probation on his repayment of the fees for his
court-appointed defense.182 The Court disagreed, however, finding
no equal protection violation and no direct violation of the Sixth
Amendment as applied to the states through the Fourteenth
Amendment.183 With regard to Fuller’s equal protection claim, the
Court held that differentiating between convicted defendants and
those who were either acquitted or had their charges dismissed
Id. at 41. In a separate but related line of cases, the Supreme Court
has placed strict limits on when a judicial officer personally can benefit from
the outcome of a case. In Tumey v. Ohio, the Court invalidated a system in
which the judge was paid a flat rate per conviction (but not acquittals or
dismissals), holding that the pecuniary interest of the judge cast doubt on the
impartiality of the system. 273 U.S. 510 (1927). Half a century later, the Court
similarly ruled that a system whereby judges were paid per warrant issued,
but not those warrant applications that were denied, was unconstitutional.
Connally v. Georgia, 429 U.S. 245, 251 (1977) (deeming this practice a violation
of the Constitution). Instances in which the revenues generated went to the
general fund (out of which the judge is paid) rather than to the judge
personally, however, have been upheld. See Dugan v. Ohio, 277 U.S. 61, 65
(1928) (finding the judge’s relationship to the city’s general fund was “too
remote to warrant a presumption of bias toward conviction” and thus to trigger
constitutional concern). While the personal profit by a judicial officer from
prosecution and conviction generally violates due process, no such general
prohibition exists from a municipality or state profiting in this manner.
179
Fuller, 417 U.S. at 41.
180
Id.
181
Id. at 41–42.
182
Id. at 42.
183
Id. 50–52.
178

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33

was constitutionally permissible, and that the distinction between
those two classes of criminal defendants was not invidious.184 The
Court put great weight on the fact that Oregon’s recoupment
statute contained a number of exemptions for those unable to
repay the state.185 These exemptions, the Court held,
distinguished Fuller’s case from the statute at issue in James v.
Strange.186
The Court also rejected Fuller’s argument that Oregon’s
recoupment statute violated his Sixth Amendment right to
counsel, as applied to the states through the Due Process Clause
of the Fourteenth Amendment.187 Fuller argued that Oregon’s
statute could chill the exercise of a defendant’s constitutional
right to counsel by making the exercise costly.188 Rejecting this
claim, the Court reasoned that the potential burden of repayment
of the costs of court-appointed counsel did not interfere with the
right to counsel guaranteed in Gideon v. Wainwright:
We live in a society where the distribution of legal
assistance, like the distribution of all goods and
Id. at 50 (“This legislative decision reflects no more than an effort to
achieve elemental fairness and is a far cry from the kind of invidious
discrimination that the Equal Protection Clause condemns.”).
185
Id. at 47.
186
See id. at 47–48 (“The legislation before us, therefore, is wholly free of
the kind of discrimination that was held in James v. Strange to violate
the Equal Protection Clause.”). Among the refinements that Oregon included
in its recoupment statute that had been absent in Strange were the following:
only those defendants convicted of a crime could be forced to repay, only those
who were able to repay the state could be required to do so, sentencing judges
were required to consider each person’s finances in deciding whether or not to
impose such a burden, and those required to repay the costs of their own
defense could petition the sentencing court to reconsider and could not be held
in contempt for failure to repay if that person could show that the failure to do
so was not because of an intentional or bad-faith refusal to pay. See id. at 45–
46 (noting “the conditions that must be satisfied before a person may be
required to repay the costs of his legal defense”).
187
Id. at 51.
188
Id. While not arguing that his counsel was ineffective or that the fees
assessed for those purposes constituted unreasonable compensation for his
counsel, Fuller “assert[ed] that a defendant’s knowledge that he may remain
under an obligation to repay the expenses incurred in providing him legal
representation might impel him to decline the services of a court-appointed
attorney and thus ‘chill’ his constitutional right to counsel.” Id.
184

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services, is generally regulated by the dynamics of
private enterprise. A defendant in a criminal case
who is just above the line separating the indigent
from the nonindigent must borrow money, sell off his
meager assets, or call upon his family or friends in
order to hire a lawyer. We cannot say that the
Constitution requires that those only slightly poorer
must remain forever immune from any obligation to
shoulder the expenses of their legal defense, even
when they are able to pay without hardship.189
While recognizing that recoupment statutes could be found
unconstitutional if they constituted a penalty on the exercise of
the right to appointed counsel, the Court found that Oregon’s
statute was not such a penalty because it burdened only those
who foreseeably had the ability to pay without hardship.190
State and lower federal courts have occasionally ruled
unconstitutional state recoupment statutes when they have
strayed from what the Supreme Court authorized in Fuller. Such
statutes have been ruled unconstitutional if they do not inquire
into a defendant’s ability to pay,191 if they do not afford the
defendant the same exemptions and procedural protections given
to other debtors under state law,192 and if the state seeks to treat
defendants who have been acquitted more harshly than
Id. at 53–54.
Id. at 54.
191
See, e.g., State v. Dudley, 766 N.W.2d 606, 623 (Iowa 2009)
(“[I]mposing mandatory reimbursement without regard to ability to pay
infringes an indigent defendant's right to counsel.”); Olson v. James, 603 F.2d
150, 155 (10th Cir. 1979) (concluding that “a court should not order a convicted
person to pay” expenses unless he is presently able to pay them “or will be able
to pay them in the future considering his financial resources and the nature of
the burden that payment will impose. If a person is unlikely to be able to pay,
no requirement to pay is to be imposed”); Fitch v. Belshaw, 581 F. Supp. 273,
277 (D. Or. 1984) (holding the state’s statute that imposed repayment
obligation without any determination of the defendant’s ability to pay
“unconstitutionally chills an indigent defendant's exercise of Sixth Amendment
right to counsel”); State v. Tennin, 674 N.W.2d 403, 410–11 (Minn. 2004)
(holding mandatory recoupment statute to violate defendant’s federal and state
right to counsel).
192
State v. Dudley, 766 N.W.2d 606, 616–18 (Iowa 2009) (discussing the
invalidity of the state statute based on denial of exemptions to the criminal
defendant).
189
190

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35

defendants who have been convicted.193 Generally, however,
Fuller has provided a roadmap to the states on how to require
reimbursement of the costs of one’s own court-appointed lawyer
without violating constitutional principles of due process, equal
protection, or the Sixth Amendment right to counsel.194
Challenges to the imposition of fees for the exercise of other
constitutional rights are less frequent than those involving
recoupment statutes in the right-to-counsel context. Courts have
considered, both before and after the Melendez-Diaz decision, the
extent to which states can constitutionally impose a burden,
either financial or procedural,195 on a criminal defendant who
wishes to confront a scientific witness at trial.196 Although simple
notice-and-demand statutes have been held constitutional, courts
have struck down statutes that require a defendant to assert a
specific objection to the out-of-court statement and grounds for
that objection.197 In State v. Campbell,198 the North Dakota
Supreme Court upheld that state’s notice-and-demand statute as
a reasonable requirement, noting that while the statute required
defendants who were able to pay to be assessed the costs of the
witness’s appearance, the statute exempted indigent defendants
from this financial burden.199 In upholding Virginia’s
notice-and-demand statute in a case that preceded the decision in
Melendez-Diaz, the Virginia Court of Appeals noted that the
Commonwealth bore the costs associated with the witness’s
appearance at trial and upheld the statute as a “reasonable
procedure” that “encourages judicial and governmental
economy . . . .”200 Shortly after the Virginia Court of Appeals’
decision, the Virginia General Assembly amended the statute in
193

See generally Fuller v. Oregon, 417 U.S. 40 (1974).
See Sokoler, supra note 123, at 190, nn.145, 154.
196
See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329 (2009)
(requiring confrontation for testimonial laboratory results by laboratory
analysts).
197
See, e.g., State v. Laturner, 218 P.3d 23, 37–38 (2009) (concluding that
the demands of Kansas’s statute went beyond that authorized in
Melendez-Diaz and caused the defendant’s confrontation right to be violated).
198
719 N.W.2d 374 (N.D. 2006).
199
Id. at 378.
200
Brooks v. Commonwealth, 638 S.E. 2d 131, 136 (2006).
194
195

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significant ways, including to shift the costs associated with
calling the scientific witness onto the defendant.201
States have taken various approaches to the practice of
charging criminal defendants for the exercise of their right to be
tried by a jury.202 Striking down that state’s jury trial fee in 1979,
the New Hampshire Supreme Court declared that “a criminal
defendant cannot be required to purchase a jury trial—even for so
nominal a sum as eight dollars.”203 In reaching the conclusion
that such a fee violated the state constitution, the court compared
a jury trial fee to the voting poll tax that was struck down by the
United States Supreme Court in Harper v. Virginia Board of
Elections.204 In that case, the Supreme Court declared that
conditioning a person’s vote on a payment of a fee violated
principles of equal protection, “whether the citizen, otherwise
qualified to vote, has $1.50 in his pocket or nothing at all, pays
the fee or fails to pay it.”205 Other states have flatly prohibited the
practice of charging criminal defendants an additional charge for
empaneling a jury, although often pursuant to principles of state
law.206
See VA. CODE ANN. § 19.2-187.1(F) (2016).
Although not involving a financial surcharge, the United States
Supreme Court struck down the capital sentencing provision of the federal
kidnapping statute as unconstitutional because it allowed for a capital
sentence only after a jury trial. See United States v. Jackson, 390 U.S. 570
(1968). The Court said that this placed too high a price on the exercise of one’s
right to a jury trial. See id. at 581 (“The inevitable effect of any such provision
is, of course, to discourage assertion of the Fifth Amendment right not to plead
guilty and to deter exercise of the Sixth Amendment right to demand a jury
trial.”).
203
State v. Cushing, 399 A.2d 297, 297–98 (N.H. 1979).
204
See id. at 298 (comparing the “purchase of a jury trial” to the poll tax
struck down in Harper v. Virginia Board of Elections).
205
Harper v. Virginia Board of Elections, 383 U.S. 663, 668 (1966).
206
See, e.g., People v. Kennedy, 25 N.W. 318, 320 (Mich. 1885) (“[I]t would
be monstrous to establish a practice of punishing persons convicted of
misdemeanors for demanding what the constitution of the state gives them—a
trial by jury.”); People v. Hope, 297 N.W. 206, 208 (Mich. 1941) (“[A]ssessing
costs against a defendant for a jury in a criminal case is not permissible under
the laws of this State. Every person charged with a criminal offense has a
constitutional right to a trial by jury.”); see also T. Ward Frampton, The
Uneven Bulwark: How (and Why) Criminal Jury Trial Rates Vary by State, 100
CAL. L. REV. 183, 211, n.161 (2012). Several states have expressly considered
201
202

5-Mar-18]
IV.

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37

The Problem with Privatizing Fundamental Rights

The proliferation of user fees in criminal procedure turns
fundamental rights into commodities. Those charged with crime
can either buy enhanced procedural protections or forego those
safeguards in order to save money. The commodification of trial
rights risks creating a secondary class of criminal justice for poor
people,207 but it also risks changing the way that we conceive of
fundamental rights. Markets affect the way that society views
goods, and a market in procedural protections for those accused of
crime threatens to undermine the way society views the purposes
and objectives of the criminal justice system.
A.

Principled Problems

Many have acknowledged that the criminal adjudication
system could not function if everyone charged with crime
exercised the full panoply of trial rights afforded them by the
Constitution.208 The adversarial system depends on most criminal
defendants waiving their procedural rights and, therefore, the
system makes the exercise of those rights costly.209 The most
and rejected this argument. See id. at 212, n.165 (citing states that have
considered constitutional challenges to the imposition of jury fees and have
rejected them).
207
Of course, a strong argument can be made that the American system of
criminal justice has already developed into a two-tiered system, with
overwhelmed public defenders handling the bulk of the criminal cases, while
those few defendants with money are able to hire private counsel and fully
exercise their formal trial rights. Phil McCausland, Public defenders
nationwide say they’re overworked and underfunded, NBC NEWS (Dec. 11,
2017), https://www.nbcnews.com/news/us-news/public-defenders-nationwidesay-they-re-overworked-underfunded-n828111.
208
Jenny Roberts, Crashing the Misdemeanor System, 70 WASH. & LEE L.
REV. 1089, 1095 (2013) (discussing the impracticality of the American criminal
justice system if defendants were to assert all of the constitutional rights
afforded to them).
209
Michelle Alexander, Op-Ed., Go to Trial: Crash the Judicial System,
N.Y. TIMES, Mar. 11, 2012, at SR 5
The Bill of Rights guarantees the accused basic safeguards,
including the right to be informed of charges against them, to
an impartial, fair and speedy jury trial, to cross-examine
witnesses and to the assistance of counsel. But in this era of

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38

vivid and widespread example of this is our system of plea
bargaining,210 in which a defendant who turns down a plea offer
and forces the state to prove its case is subject to the well-known
“trial tax” and will likely spend more time behind bars if
convicted after a trial.211
In his examination of the rhetoric of citizenship in Supreme
Court cases, Bennett Capers concludes that the law’s vision of the
“good citizen” as one who cooperates with law enforcement and
freely waives her rights is troubling and at odds with an idea of a
free and equal society.212 Capers critiques the Court’s repeated
invocations of “good citizens” as those who will freely speak with
law enforcement, notwithstanding their right to be left alone:
“There is something deeply problematic about a model of good
citizenship that relies on citizens foregoing their citizenship
rights. Just as there is something problematic with a model of
good citizenship that, in effect if not by design, chills democratic
dissent.”213
Capers goes on to argue that the problems with imposing
cultural expectations of citizenship as a price to be paid for the
exercise of rights does not fall equally on all citizens.214 Of course,
there is an unequal distribution of power across social groups,
mass incarceration—when our nation’s prison population has
quintupled in a few decades partly as a result of the war on
drugs and the “get tough” movement—these rights are, for the
overwhelming majority of people hauled into courtrooms across
America, theoretical. More than 90 percent of criminal cases
are never tried before a jury. Most people charged with crimes
forfeit their constitutional rights and plead guilty.
210
See, e.g., Lafler v. Cooper 566 U.S. 156, 157 (2012) (acknowledging that
“criminal justice today is for the most part a system of pleas, not a system of
trials”).
211
J. Vincent Aprile II, Judicial Imposition of the Trial Tax, 32 GPSOLO
74, 75 (2015) (discussing the imposition of a “trial tax” on criminal defendants
asserting their constitutional right to a trial).
212
I. Bennett Capers, Criminal Procedure and the Good Citizen, COLUM.
L. REV. (forthcoming 2018) (manuscript at 56) (finding as contrary to
democratic ideals the notion that “good citizens” include those willing to
cooperate with police officers).
213
Id. at 46.
214
See id. at 46–47 (discussing the racial inequality implications of
“citizenship talk”).

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which leads to a disproportionate burden on people of color in the
actual exercise of their rights.215 “We should be troubled by
citizenship talk that requires minorities to prove or ‘work’ their
citizenship, and to perform as passive, non-questioning and
indeed second-class citizens.”216 These critiques are as true in the
context of trial rights as in the Fourth Amendment context with
which Capers is primarily concerned. We should be troubled by a
criminal justice system that systematically discourages the
exercise of trial rights by defendants, especially if that burden
falls most heavily on already marginalized groups. The impact of
“á la carte” procedural fees disproportionately impacts poor
people and people of color, leading to functionally different
criminal adjudication systems based on access to money.
Applying Capers’s formulation in the context of trial rights
implicates citizenship in two ways: financial and philosophical.
The privatization or commodification of trial rights requires a
criminal defendant to purchase rights that should simply flow
from citizenship, and which have previously been thought to be
incident to citizenship. Moreover, the expectations of citizenship
differ for marginalized subjects of the criminal justice system.
Poor people and people of color, the disproportionate subjects of
American systems of criminal justice, are expected to passively
acquiesce in the restriction of their trial rights, and to accept the
limited form of citizenship that is offered to them.
The history of states’ attempts to impose poll taxes on
those wishing to exercise their right to vote is instructive.
Defended by states as simply attempts to fund the electoral
process, these surcharges on the right to vote also discouraged
participation in elections.217 After initially finding no
constitutional infirmity in state poll taxes, the Supreme Court
later reversed itself, concluding that such taxes were an
unconstitutional infringement on the right to equal protection.
Id. at 46.
Id. at 46-47.
217
David Schultz & Sarah Clark, Wealth v. Democracy: The Unfulfilled
Promise of the Twenty-Fourth Amendment, 29 QUINNIPIAC L. REV. 375, 391
(2011) (describing the poll tax’s varied history, most notably its adoption in the
South after the Civil War with the intention of disenfranchising African
Americans and poor whites).
215
216

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In 1937, the Supreme Court unanimously rejected a
challenge to the practice of poll taxes in state elections, holding
that Georgia’s imposition of a $1 poll tax on men between the
ages of 21 and 60 was constitutional.218 Georgia law prohibited
anyone from voting who could not show that they had paid the
poll tax, exempting men over 60 as well as all women from the
requirement.219 The Court rejected arguments that such a voting
restriction violated either the Equal Protection Clause or the
Privileges and Immunities Clause.220
Less than three decades later, however, the Court changed
course. In Harper v. Virginia State Board of Elections, the Court
held that Virginia’s poll tax “not to exceed $1.50” violated the
Equal Protection Clause of the Fourteenth Amendment.221 The
Court made clear that “a State violates the Equal Protection
Clause . . . whenever it makes the affluence of the voter or
payment of any fee an electoral standard.”222 The Court criticized
Virginia’s poll tax, stating that “the right to exercise the franchise
in a free and unimpaired manner is preservative of other basic
civil and political rights . . . .”223 Finally, the Harper Court
concluded that the introduction of wealth or payment as a factor
in the exercise of the right to vote constituted invidious
discrimination on the basis of wealth and so could not be
tolerated, and that the relatively modest amount of the fee
required did not affect the unconstitutional nature of the poll
tax.224 Because of the fundamental nature of the right to vote,
“any alleged infringement . . . must be carefully and meticulously
See Breedlove v. Suttles, 302 U.S. 277, 283–84 (1937) (finding as
constitutional the imposition of a poll tax).
219
Id. at 281–82.
220
Id. at 218, 283.
221
Harper v. Virginia Board of Elections, 383 U.S. 663, 670 (1966)
(holding that “the opportunity for equal participation by all voters” is required
and thus striking the poll tax).
222
Id. at 666.
223
Id. at 667. The Harper Court expressed no disapproval, however, of the
use of literacy tests as a prerequisite to allowing a citizen to vote, believing
that the ability to read and write “has some relation to standards designed to
promote intelligent use of the ballot.” Id. at 666 (quoting Lassiter v.
Northampton Election Board, 360 U.S. 45, 51 (1959)).
224
See id. at 670 (“The degree of the discrimination is irrelevant.”).
218

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scrutinized.”225 Subsequent cases have upheld voting regulations
such as the requirement that a person seeking to vote produce
identification226 but have not retreated from Harper’s prohibition
against any fee for voting.
Just as the right to vote is “preservative,” the right to
counsel is fundamental to the exercise of all of the other
procedural rights and safeguards that attend a criminal trial in
the United States. And the rights to confront witnesses and to
have one’s case decided by a jury are similarly fundamental to our
notions of a fair criminal justice system. The arguments advanced
by the Court in Harper should apply with equal force in the
context of constitutional trial rights designed to ensure fairness
and accuracy.
Ironically, the constitutionality of recoupment statutes
seems to depend upon a widespread ignorance of their existence.
As the Supreme Court of California expressed in invalidating that
state’s recoupment statute prior to Fuller:
[A]s knowledge of [the recoupment] practice has
grown and continues to grow many indigent
defendants will come to realize that the judge’s offer
to supply counsel is not the gratuitous offer of
assistance that it might appear to be; that, in the
event the case results in a grant of probation, one of
the conditions might well be the
reimbursement . . . for the expense involved. This
knowledge is quite likely to deter or discourage
many defendants from accepting the offer of counsel
despite the gravity of the need for such
representation as emphasized by the [Supreme]
Court in Gideon.227
The constitutionality of post-Fuller recoupment statutes—
or any elective trial right—rests on a belief that they do not
chill the exercise of the right to counsel because so few

Id. at 667 (quoting Reynolds v. Sims, 377 U.S. 533, 561–62 (1964)).
Crawford v. Marion County Election Board, 553 U.S. 181 (2008).
227
In re Allen, 455 P.2d 143, 144 (Cal. 1969), quoted in Fuller v. Oregon,
417 U.S. 40, 51 (1974).
225
226

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people know about the surcharges involved.228 As they
become more a routine feature of criminal adjudication,
however, this argument falls apart, and the user fees will
deter the invocation of fundamental rights just as the
California Supreme Court predicted.
B.

Pragmatic Problems

Increased costs and fees interfere with the central criminal
justice goals of rehabilitation and successful reentry, making it
more difficult for those with convictions to obtain housing and
employment, as well as to remain successful on probation, parole,
or supervised release.229 In addition to making it objectively more
difficult for those involved in the criminal justice system to
In James v. Strange, Justice Powell wrote the opinion that found the
recoupment statute unconstitutional on very narrow grounds, not reaching the
issue of whether the statute impermissibly chilled the exercise of the right to
counsel. In a cover note to a draft of the opinion, law clerk J. Harvie Wilkinson
III discouraged Powell from finding it unconstitutional because it chilled the
exercise of the right to counsel: “Once we get into the business of saying a
particular statute chills the right to counsel, there will be no end to the
chilling, no rational way to save these statutes.” Memorandum from J. Harvie
Wilkinson III to Justice Lewis Powell (on file with the Lewis F. Powell, Jr.
Archives, Washington & Lee University School of Law). Wilkinson goes on to
counsel against using a due process rationale, in that the defendants are not
given notice of the requirement to repay the state at the time of the exercise of
their right to counsel:
[O]nce we get to the point of requiring notice, then we are
slowly falling into what I think would be the liberAl’s [sic]
desires to have all of these statutes invalidated under the right
to counsel thesis. If you have to notify a guy of the debt right
before you assign him counsel, then it obviously is going to
“chill” him a little bit, and all these recoupment statutes are in
trouble.
See id.
229
See Traci R. Burch, Fixing the Broken System of Financial Sanctions,
10 CRIMINOLOGY & PUB. POL’Y 539, 543 (2011); Travis Stearns, Legal Financial
Obligations: Fulfilling the Promise of Gideon by Reducing the Burden, 11
SEATTLE J. FOR SOC. JUST. 963, 978 (2013); Katherine Becker & Alexis Harris,
On Cash and Conviction: Monetary Sanctions as Misguided Policy, 10
CRIMINOLOGY & PUB. POL’Y 509, 509–10 (2011); Kirset D. Livingston & Vicki
Turetsky, Debtors’ Prison: Prisoners’ Accumulation of Debt as a Barrier to
Reentry, 41 CLEARINGHOUSE REV. J. POVERTY L. & POL’Y 187, 191–92 (2007).
228

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re-establish themselves as productive citizens, an over-reliance on
court costs and fees to fund the criminal justice system affects the
perceived procedural fairness of the system. Perhaps
unsurprisingly, poor people who have difficulty paying the costs of
their own involvement in the criminal justice system perceive the
system as less fair and more biased against them.230
The Supreme Court in Strange also expressed a general
critique of recoupment statutes as contrary to the public policy of
successful re-entry into society of those convicted of crimes:
A criminal conviction usually limits employment
opportunities. This is especially true where a prison
sentence has been served. It is in the interest of
society and the State that such a defendant, upon
satisfaction of the criminal penalties imposed, be
afforded a reasonable opportunity of employment,
rehabilitation, and return to useful citizenship.
There is limited incentive to seek legitimate
employment when, after serving a sentence during
which interest has accumulated on the indebtedness
for legal services, the indigent knows that his wages
will be garnished without the benefit of any of the
customary exemptions.231
All of these costs come in exchange for little revenue, if
revenue generation is even the point of the costs and fees
associated with the exercise of rights. The futility of recoupment
systems was recognized as early as 1972 by the Supreme Court in
Strange:
We do not inquire whether this statute is wise or
desirable . . . . Misguided laws may nonetheless be
constitutional. It has been noted both in the briefs
and at argument that only $17,000 has been
recovered under the statute in its almost two years
of operation, and that this amount is negligible
compared to the total expended.232
R. Barry Ruback et al., Perception and Payment of Economic Sanctions:
A Survey of Offenders, 70 FED. PROBATION 3, 26, 30 (Dec. 2006).
231
James v. Strange, 407 U.S. 128, 139 (1972).
232
Id. at 133.
230

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More recent examinations of recoupment systems have shown a
similarly poor return on investment.
The increasing practice of imposing user fees on criminal
defendants coincides with an ever-expanding web of collateral
consequences that make it difficult for those convicted of crimes
to obtain employment.233 Since the Court decided Fuller, these
surcharges have multiplied and defendants have become more
aware of surcharges as a routine aspect of criminal procedure.
The practice of imposing user fees is at once more routine and
also more damaging to defendants now than it was, and it is clear
that the burdens of a commodified criminal procedure system fall
more heavily on disadvantaged groups.234 Because of this changed
historical context, we can see more clearly the dangers of using
costs and fees either as a revenue-generator or as a disincentive
to the exercise of trial rights. Fuller, therefore, should be
re-examined in light of this changed context. As the seriousness of
even a minor conviction continues to rise, as measured in both
direct and collateral consequences,235 the effect of a tax on trial
rights becomes more pernicious.
C.

Solutions

One preliminary measure to address the problem of
privatization of trial rights is to ensure that all state systems are
conducting indigency inquiries and waiving costs and fees for
those unable to pay. The available evidence suggests that many
states are simply not conducting such inquiries and many of the
See Wayne A. Logan, Informal Collateral Consequences, 88 Wash. L.
Rev. 1103, 1103 (2013) (discussing the marked increase in collateral
consequences for criminal convictions) (citing Kathleen M. Olivares et al., The
Collateral Consequences of a Felony Conviction: A National Study of State
Legal Codes 10 Years Later, 60 FED. PROBATION, Sept. 1996 at 10, 11–15;
Michael Pinard, Reflections and Perspectives on Reentry and Collateral
Consequences, 100 J. CRIM. L. & CRIMINOLOGY 1213, 1214–15 (2010)).
234
See Sobol, supra note 26, at 516 (“The adverse impact of this two-tiered
system on the poor and minorities is reflected in the disproportionate
assessment of fees, additional monetary sanctions, barriers to re-entry, and
stress on families.”).
235
See King, supra note 50, at 20–36 (discussing how misdemeanor
convictions affect criminal defendants and specifically detailing several
categories of potential collateral consequences).
233

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statutes imposing fees on the exercise of trial rights do not even
provide for such waivers.236 States that do not allow for waivers of
these fees based on indigency, however, are vulnerable to due
process attack. A robust commitment to only imposing such user
fees on those with the ability to pay would ameliorate the most
pernicious effects of these rights-based user fees. Historically,
however, indigency determinations have been ineffective and
inconsistently applied. Since 1983, Bearden v. Georgia237 has
prohibited incarceration for failure to pay absent a finding of
willfulness, but these protections have proven largely illusory in
practice.238
Even if the truly indigent were relieved from the financial
requirements of rights-based user fees, those criminal defendants
who do not qualify as indigent are subject to deciding whether or
not to pay for their constitutional rights. It is hard to imagine
that the result will be anything other than a chilling effect on the
exercise of these rights, especially as they become a more common
and well-known aspect of our criminal justice system. As more
people become aware of the piecemeal imposition of fees for each
right invoked, defendants will become more selective about which
ones they use and the exercise of the rights will be chilled by the
potential costs.239
Beyond either of these rationales, charging defendants for
the exercise of trial rights is offensive to our historical
understanding of the very nature of these constitutional rights.
By turning rights into commodities, we degrade the rights. The
only way to address this phenomenon is to eliminate rights-based
user fees altogether. Just as the Supreme Court reclaimed the
nature of the right to vote as something beyond commerce and the
market in Harper v. Virginia Board of Elections,240 the Court

236

See Wayne Logan, Mercenary Criminal Justice, 2014 Ill. L. Rev. 1175,

1189.
461 U.S. 660 (1983).
Id. at 667.
239
See Fuller v. Oregon, 417 U.S. 40, 51 (1974) (predicting that as
defendants become more aware of the fees associated with invocation of
constitutional rights, fewer defendants will invoke such rights).
240
383 U.S. 663, 670 (1966).
237
238

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should re-examine its precedent allowing states to impose
surcharges on defendants for exercising their rights at trial.
Recently, the practice of using low-level courts as revenue
generators has come under criticism. The Ferguson Report took a
comprehensive look at the practice and condemned it, finding that
the focus on revenue eclipsed any focus on community safety or
well-being.241 Court fees and costs act as a regressive tax that
affects entire communities instead of just those accused of crime.
But using courts not only to pay for their own expenses but also
for other municipal services is an easy political sell, and the
practice shows no sign of disappearing. And even in the face of
data showing lackluster results in actually collecting money from
those accused of crime, the imposition of such fees is a politically
popular move.242
As a result, the use and popularity of court costs and fees
has greatly increased in recent years.243 Criminal defendants
have increasingly been seen as the answer to the funding
problems that have befallen states and municipalities as
cash-strapped legislatures have reduced funding without
meaningfully addressing hyper-incarceration or shrinking the
size of the criminal justice apparatus. Some municipalities have
even used their criminal justice systems as a profit center,
THE FERGUSON REPORT at 2 (describing police instinct to view African
American residents “less as constituents to be protected than as potential
offenders and sources of revenue”).
242
See Wright and Logan, supra note 20, at 2070 (“Collecting such fees
from defendants remains politically popular despite the disappointing
monetary results that typically accrue.”).
243
See Shaila Dewan, A Surreptitious Courtroom Video Prompts Changes
in a Georgia Town, N.Y. TIMES (Sept. 5, 2015), at A12; Jacob Shamsian, An
Alabama Town is Being Accused of Violating People’s Rights with a Practice
that was Outlawed 200 Years Ago, BUSINESS INSIDER, (Sept. 10, 2015); THE
FERGUSON Report at 17 (discussing the sources of Ferguson’s revenue and
noting the amount that comes from court costs and fees); Shapiro, supra note
45; Claire Greenberg et al., The Growing and Broad Nature of Legal Financial
Obligations: Evidence from Alabama Court Records, 48 CONN. L. REV. 1079,
1088 (2016). In Alabama, for example, the funding for the state court system
shifted dramatically from 2008, in which roughly half of the state court
appropriations came from money generated by the courts, to 2013, in which
almost all of the funding was generated by the courts. See Greenberg et al.,
supra note 243, at 1101 (2016).
241

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funding other governmental functions through criminal costs and
fees.244
The wide variety of costs and fees has increased over time
and has now come to serve as a fiscal crutch for cash-strapped
governments.245 This phenomenon has skewed the priorities of
criminal justice systems and tends to encourage aggressive
prosecution of even minor crimes and to exacerbate the problem
of mass incarceration.246 And the possibility of requiring poor
defendants themselves to fund the vast machinery of criminal
justice systems “creates perverse incentives that pressure both
courts and counsel to ignore the consequences of recoupment.”247
Over the past several decades, we have created various
markets in the realm of criminal procedure. The most
well-recognized and studied has been the defendant’s right to
trial, which can be waived in exchange for various types of
consideration.248 Indeed, criminal defendants now waive their
right to trial in over 95% of cases, trading in that commodity for
either a reduction in charges or a shorter sentence or both.249 In
his book, Free Market Criminal Justice: How Democracy and
Laissez Faire Undermine the Rule of Law, Darryl Brown
describes plea bargaining as a deregulated free-market model,
which is defined by
See THE FERGUSON REPORT at 10; AM. CIVIL LIBERTIES UNION, IN FOR A
PENNY: THE RISE OF AMERICA’S NEW DEBTORS Prisons 8 (2010) [hereinafter IN
FOR A PENNY] (discussing the use of legal financial obligations (“LFOs”) as a
source of revenue for city, county, and state governments).
245
See Logan & Wright, supra note 38, at 1190; see also THE FERGUSON
REPORT at 17 (detailing the importance of criminal defendant’s court costs and
fees to the Ferguson revenue fund).
246
Kevin Baker, Cruel and Unusual Punishment: Why Prisoners
Shouldn’t Pay Their Debt, AM. HERITAGE MAG., at 22, 22 (July 2006),
www.americanheritage.com/content/cruel-and-unusual (“A government that can fob off costs on
criminals has an incentive to find criminals everywhere.”).
247
Beth A. Colgan, Paying for Gideon, 99 IOWA L. REV. 1929, 1932 (2014).
248
Ric Simmons, Private Plea Bargains, 89 N.C. L. REV. 1125, 1196 (2011)
(discussing the trade-off of waiving constitutional rights to receive lower levels
of punishment or other benefits).
249
Erica Goode, Stronger Hand for Judges in the “Bazaar’ of Plea Deals,
N.Y. TIMES (Mar. 22, 2012) (stating that “97 percent of federal cases and 94
percent of cases end in plea bargains, with defendants pleading guilty in
exchange for a lesser sentence”).
244

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the private market’s moral indifference to effects of
unequal resources among contracting parties, its
exceedingly thin concept of coercion, and its minimal
regulation of outcomes according to criteria of
fairness, rather than party consent. In these respects
and many others, democratic and market norms in
criminal justice simultaneously supplant legal rules
and facilitate expansive state enforcement
authority.250
We have entered what could be described as the Lochner251 era of
criminal adjudication, as the ideology of private party control has
fully occupied the field without a corresponding focus on
disparate bargaining power.252 As market-based norms and
rhetoric have come to dominate how we think of criminal
adjudication, it becomes more difficult to resist and to maintain
norms and rhetoric that are centered on dignity, justice, and
fairness.253
Many states have procedures that allow defendants to pay
money either to avoid jail time or, in some cases, to avoid criminal
prosecution altogether.254 Deferred prosecution agreements allow
someone suspected of criminal activity to agree to pay a victim or
the state or to engage in other activities in exchange for an
agreement by the state not to prosecute.255 Such agreements have
been widely used (and criticized) in prosecutions of corporations
DARRYL K. BROWN, FREE MARKET CRIMINAL JUSTICE: HOW DEMOCRACY
AND LAISSEZ FAIRE UNDERMINE THE RULE OF LAW 12 (2016).
250

Lochner v. New York, 198 U.S. 45 (1905).
See BROWN, supra note 250, at 13 (“[T]he modern trend has been to
expand parties’ control over the adjudication process, and American justice
systems have in some important respects gone further down this road, giving
one or both parties the ability to waive nearly all rights and procedures.”).
253
See id. at 63 (“One reason for this relative paucity of attention [paid to
how free-market ideology influences American criminal justice] is that market
rationality in American criminal procedure law is almost too obvious to
warrant notice.”).
254
See Logan & Wright, supra note 38, at 1188 (detailing the practice of
pre-trial abatement, in which “local law or practice allows defendants in minor
cases to pay an amount to the police or the courts that stops the prosecution
from going forward”).
255
See id. at 1187 (discussing the use of prosecutorial intervention
through “deferred prosecution agreements”).
251
252

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suspected of violating financial and other laws.256 Similarly, many
states condition entry into a pre-trial diversion program on the
defendant’s payment of a diversion fee; those unable to pay the
fee are ineligible for the pre-trial diversion program.257 Such
treatment for those with the ability to pay extra costs and fees
continues after judgment, with states charging convicted
defendants for the costs of their own incarceration and
supervision.258 And some states now allow prison cell upgrades
for prisoners able to pay extra.259
Although we talk of defense lawyers, juries, and
confrontation as being essential to the American system of
criminal justice, practices increasingly discourage the actual use
of these features of adversarialism, especially in misdemeanor
courtrooms. A system that is serious about actually using these
procedural safeguards could easily implement systems to
encourage their use, the simplest of which would be eliminating
the costs and fees associated with them.
V.

Conclusion

Tom Barrett was charged in 2012 with stealing a can of
beer worth two dollars.260 He was offered a court-appointed
lawyer but decided to represent himself to avoid being charged
the additional $50 fee that Georgia charges defendants who are
appointed a lawyer.261 “Now he says that was a mistake.”262
BRANDON GARRETT, TOO BIG TO JAIL 68 (2014) (detailing year totals for
corporate deferred prosecutions).
257
See Logan & Wright, supra note 38, at 1187, n.77 (discussing the
charges associated with pre-trial diversion programs).
258
See id. at 1192–93 (detailing probation and parole fees).
259
See MICHAEL J. SANDEL, WHAT MONEY CAN’T BUY: THE MORAL LIMIT OF
MARKETS 3 (2012) (“A prison cell upgrade: $82 per night. In Santa Ana,
California, and some other cities, nonviolent offenders can pay for better
accommodations—a clean, quiet jail cell, away from the cells for nonpaying
prisoners.”).
260 Joseph Shapiro, Measures Aimed at Keeping People Out of Jail Punish the
Poor, NPR (May 24, 2014),
https://www.npr.org/2014/05/24/314866421/measures-aimed-at-keeping-peopleout-of-jail-punish-the-poor.
261
Id.
262
Shapiro, supra 45.
256

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Barrett, who was homeless at the time of his charge, was
sentenced to probation but could not afford the $400 monthly
payment to the private probation company that oversaw his
probation. When he fell behind on his payments, his probation
was revoked and he was sent to jail. The effects of this kind of
economic calculus are predictable and preventable,263 and courts
and legislatures should take steps to avoid putting poor
defendants like Mr. Barrett in this situation.
Increased reliance on user fees to fund governmental
functions disproportionately harms those who are least able to
pay.264 The majority of those caught up in the criminal justice
system are poor,265 and a disproportionate number are people of
color.266 Over 80% of criminal defendants qualify for courtappointed counsel, even under the very narrow definitions
employed by some states.267 Those unable to post bail, perversely,
can end up not only being detained prior to trial but also being
charged for the costs of that pre-trial detention. And defendants
of color have been shown to be more likely to be detained pre-trial

See Cass R. Sunstein, It Captures Your Mind, N.Y. REV. OF BOOKS
(Sept. 26, 2013) (“Because they lack money, poor people must focus intensely
on the economic consequences of expenditures that wealthy people consider
trivial and not worth worrying over.”). A court system could, therefore, either
make procedural safeguards like right to counsel the default choice out of
which a defendant could affirmatively opt out, or at least provide corrective
information about the increasingly severe collateral consequences of even
minor convictions.
264
See Sobol, supra note 26 at 516 (explaining that the adverse impact of
the two-tiered system falls disproportionately on the poor and minorities and
citing examples).
265
See Bernadette Rabuy and Daniel Kopf, Prisons of Poverty: Uncovering
the Pre-incarceration Incomes of the Imprisoned, PRISON POLICY INITIATIVE,
July 9, 2015 (finding that “in 2014 dollars, incarcerated people had a median
annual income of $19,185 prior to their incarceration, which is 41% less than
non-incarcerated people of similar ages”).
266
Criminal Justice Fact Sheet, NAACP, http://www.naacp.org/criminaljustice-fact-sheet/ (last visited Sept. 29, 2017) (detailing racial disparities in
incarceration in the American criminal justice system).
267
See Lincoln Caplan, The Right to Counsel: Badly Battered at 50, N.Y.
TIMES (Mar. 9, 2013) (“[A]t least 80 percent of state criminal defendants cannot
afford to pay for lawyers and have to depend on court-appointed counsel.”).
263

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due to an inability to post bail.268 And because most court costs
and fees are imposed as flat fees, without regard to a defendant’s
ability to pay, the burdens fall disproportionately on poor
defendants.269
Anecdotal evidence show how difficult it can be for a poor
person to pay off the bare minimum court costs and fees, and that
burden can get significantly heavier if the person chooses to
exercise her right to counsel or other elective trial rights.
“According to Federal Reserve surveys, fully one third of
Americans say they are ‘just getting by.’ Thirty-eight percent
could not pay for a $400 emergency without selling an asset or
borrowing; 14 percent couldn’t pay at all.”270 These costs and fees
have dramatically increased in recent years, as has the total
amount of personal debt attributable to criminal justice costs and
fees.271 The growth of financial penalties, whether classified as
fines, restitution, or fees, has tracked the phenomenon of
hyper-incarceration over the past four decades.272
By charging additional fees for the exercise of trial rights,
states transform those fundamental rights into commodities. No
state has yet begun to charge defendants for each peremptory
strike used, or for each hour of court time taken up by their trials,
RAM SUBRAMANIAN, VERA INST. OF JUSTICE, INCARCERATION’S FRONT
DOOR: THE MISUSE OF JAILS IN AMERICA 15 (2015) (“Black men are also
disproportionately held pretrial as a result of an inability to post monetary
bail.”).
269
See Sobol, supra note 26, at 518, nn. 273–75 (“Financial
sanctions . . . disproportionately impact those at lower income levels. Typically,
fines and fees in the United States system are imposed without consideration
of the income of defendants.”).
270
Jeff Madrick, America: The Forgotten Poor, N.Y. REV. OF BOOKS, June
22, 2017, at 49.
271
See id. (showing an increase in court-related debt in Florida since
1997). See also Greenberg et al., supra note 243, at 1100, n.94 (2016) (collecting
evidence that costs and fees have dramatically increased in recent years). See
also A lexis Harris, Drawing Blood from Stones: Legal Debt and Social
Inequality in the Contemporary United States, 115 AM. J. SOC. 1753, 1769
(2010).
272
See Mary Fainsod Katzenstein & Mitali Nagrecha, A New Punishment
Regime, 10 CRIMINOLOGY & PUB. POL’Y 555, 556–57 (2011) (“[T]he growth of
fines, fees, and other debts accompanied the trend line in the increase of
incarceration since the early 1970s . . . .”).
268

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but the logic of these absurdities is not different from the
examples of states charging defendants for other procedural
rights.
This intrusion of market ideology into an area that had
previously seen in a different light has at least two broad
problems: it exacerbates structural unfairness in a system that
already disadvantages poor people, and it degrades how we
conceive of fundamental rights.273 With regard to the first, placing
a price tag on a fundamental right may well have the effect of
making it available to one group of defendants but practically
unavailable to another. “In a society where everything is for sale,
life is harder for those of modest means. The more money can
buy, the more affluence (or lack of it) matters.”274
A deeper critique of the commodification of trial rights,
however, has to do with the way we conceive of those rights and
their place in our constitutional structure. Even if we accept the
idea that poor people have reduced access to procedural
safeguards in criminal trials, we may object to positioning these
rights as just one more good to be bought or sold. Discussing the
intrusion of market norms and practices into what had been more
sacred realms, Michael Sandel writes that
[I]n order to decide where [the market] belongs, and
where it doesn’t, it is not enough to argue about
property rights on the one hand and fairness on the
other. We also have to argue about the meaning of
social practices and the goods they embody. And we
have to ask, in each case, whether commercializing
the practice would degrade it.275
Once we see the right to a trial by jury as something that might
cost us $125, as a six-person jury would in the state of
Washington, or $250, as a twelve-person jury would in the same

See SANDEL, supra note 259, at 186 (describing his two objections about
the application of market ideology into various areas: “One is about coercion
and unfairness; the other is about corruption and degradation”).
274
See id. at 8.
275
See id. at 188.
273

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state, while a bench trial would cost us nothing,276 we have
entered the world of market values. And we have profoundly
changed how trial rights are considered. Re-conceiving of these
rights as something to be bought and sold not only corrupts the
idea of fundamental rights,277 it also acts as a de facto tax on the
adversarial system.

See Wash. CRR 6.1 (allowing defendant to elect between a jury of six or
twelve); WASH. REV. CODE ANN. § 36.18.016 (imposing different costs based on
the size of the jury).
277 See SANDEL, supra note 259, at 34 (“To corrupt a social good is to degrade
it, to treat it according to a lower mode of valuation than is appropriate to it.”).
276