Pleading the Sixth: A recent change in state law means that indigent felony defendants in New Jersey will no longer have to pay public defender reimbursement fees; and any outstanding public defender reimbursement fees, liens, or warrants are forgiven. New Jersey is the ninth state in the country to abolish public defender reimbursement fees and should be applauded for ensuring that indigent defendants are free to exercise their constitutional right to counsel.
At the end of June, New Jersey Governor Phil Murphy signed S 3771 into law, becoming the ninth state in the country to eliminate public defender reimbursement fees in felony cases statewide. As of 2022, 42 states and the District of Columbia allowed the assessment of fees on indigent defendants to pay back the cost of their appointed attorney, meaning a person deemed indigent and thus eligible for appointed counsel, is required to pay some amount of the cost of that appointed attorney. With this recent change in state law, New Jersey finally frees indigent felony defendants to exercise their constitutional right to counsel without fear of future debt, warrants, and liens.
The changes and resulting benefits to New Jersey’s state indigent defense system
Until June 30, 2023, New Jersey law generally required the New Jersey Office of the Public Defender (NJOPD) to collect public defender reimbursement fees from indigent defendants charged with felonies, including through liens on property. With the enactment of S3771, in felony cases, these public defender reimbursement fees and liens are abolished, and any outstanding public defender reimbursement fees, liens, or warrants are forgiven.
This new law provides numerous benefits. First, indigent felony defendants in New Jersey no longer must worry about paying back the cost of their appointed attorney. Before the enactment of this new law, depending on the type of felony case and disposition, NJOPD regulations charged defendants anywhere from $150 to $750, and sometimes as high as $1,000, for their appointed counsel. The debt created by these fees can keep indigent people involved in the criminal justice system through new warrants or debt collection proceedings. By eliminating these fees, indigent felony defendants in New Jersey are no longer encumbered with potential debt, warrants, and liens for exercising a constitutional right.
Second, indigent felony defendants in New Jersey will no longer have to be cornered between two bad options: (1) choosing appointed counsel to protect their future liberty, but with the potential of future debt, warrants, and liens; or (2) proceed without counsel in a serious criminal case. Public defender reimbursement fees should not be required because they “may serve to discourage defendants from exercising their right to counsel.” For example, 6AC’s recent evaluation of Oakland County, Michigan exposed that some Oakland County court websites announced that “most defendants will incur fees if the defendant asks for their constitutional right to counsel.” Situations like this chill the right to counsel, meaning an indigent defendant may choose to forego their constitutional right to an attorney to avoid even the chance of being charged a public defender reimbursement fee that they cannot pay.
Finally, NJOPD will no longer be required to utilize its limited time and resources to collect public defender reimbursement fees, and NJOPD will avoid the ethical problems created by having to collect these fees. Until June 30, 2023, NJOPD was required to collect these fees, creating an ethical conflict of interest by pitting the public defender entity’s duty to their clients’ best interests, against the entity’s duty to generate revenue for the state. NJOPD collected about $4 million annually from public defender reimbursement fees; however, these funds went back to the state’s general fund, as opposed to directly supporting NJOPD.
New Jersey must be applauded for freeing indigent defendants to exercise their constitutional right to counsel
The changes only apply to felony defendants because, in New Jersey, each individual municipality is responsible for right to counsel services in “non-indictable” misdemeanor cases. Still, 6AC applauds New Jersey for being the ninth state in the country to abolish certain public defender reimbursement fees as it is an important first step forward that will benefit NJOPD and many indigent defendants throughout the state.