Do defendants have to pay public defender fees even if they are not convicted?

Posted on January 13, 2018

Defendants in California can no longer be required to “pay back” public defender fees unless they ultimately get convicted in the case.  Senate Bill 355 stops courts from ordering that exonerated defendants repay public defender or court-appointed counsel regardless of the outcome at trial.

Of course, defendants are contractually-bound to pay private attorneys under the terms of the retainer.  But for those who require the assistance of a public defender or court-appointed counsel, repayment is more outcome-dependent. Now, reimbursement is restricted to proceedings where the charged client is actually convicted of a felony or misdemeanor.

Although the Sixth Amendment and California Constitution guarantee the right to an attorney in criminal proceedings, public defenders and court-appointed lawyers are not always free. Those who receive the services of a public defender, and are convicted, must pay for the services if the court determines them able to pay.

PC Section 987.8 sets forth factors courts use to find “assets sufficient” to repay all or part of the legal fees provided to the defendant at the public’s expense.  These costs include any “legal assistance” required to mount a successful defense. The overall  “ability to pay” public defenders and appointed counsel depends upon:

• • The defendant’s current financial situation;
  • Reasonably foreseeable future finances; and
  • Likelihood of gaining employment within 6 months from time trial ends

Upon finding “ability to pay,” the court imposes judgment akin to civil damages. The judgment can be satisfied by placing a lien on the defendant’s property.  Thus, courts can impose the equivalent of civil fines in criminal proceedings that require a higher burden of proof.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.