William & Mary Law Review


When he was thirteen, Jonathan, a teenager from New Hampshire, was charged with simple assault after a fight with his father. During his hearing in juvenile court, his father refused to pay the $275 New Hampshire public defender fee, and Jonathan—unable to afford the price of counsel—waived his right to an attorney. He was placed on probation and struggled to meet his probation requirements, resulting in his arrest for probation violations. Because the court was deciding whether to detain Jonathan, Jonathan was appointed a juvenile defender. The attorney brought Jonathan’s unstable home life to the judge’s attention, and the judge dismissed the case. While Jonathan was ultimately fortunate, his story illustrates how public defender fees destabilize children’s lives and leave them unrepresented at critical points during delinquency proceedings.

In 1967, the Supreme Court extended the right to counsel to juveniles during delinquency proceedings through the Due Process Clause of the Fourteenth Amendment, holding that a “juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it." Since then, every state has guaranteed juveniles the right to counsel, which juveniles can usually waive if their waiver is knowing and voluntary. However, states still erect barriers to juveniles’ access to public defenders and court-appointed counsel by imposing public defender fees. Some public defender fees impose costs on the front end of juveniles’ involvement in the juvenile court system by charging juveniles and their families a fee or a co-pay to apply for a public defender. Some states, in addition to or instead of such fees, require children and their parents to reimburse the state or county for the total or partial cost of representation. Twelve states and the District of Columbia do not charge juveniles or their families for the cost of a public defender.

This Note seeks to examine public defender fees from a national viewpoint, situate them in the context of the juvenile justice system and its history, understand their deleterious impact on juveniles and their families, and suggest alternatives. Part I of this Note provides background on the development of the juvenile justice system and the juvenile right to counsel. Part II describes the Supreme Court precedents that are key to understanding public defender fee systems. It also discusses the different statutory schemes states use to impose and collect public defender fees in the juvenile system. Part III discusses the problems that public defender fees pose from doctrinal and practical standpoints. Finally, Part IV identifies various ways in which states could prevent public defender fees from chilling juveniles’ right to counsel. These include either minimizing parental influence on children’s decisions to waive counsel or eliminating public defender fees entirely.