you have the right to a free court-appointed attorney . . . maybe

True or False: If I’m charged with a crime, I don’t need to worry about hiring an attorney because the government will just give me one for free.

Answer: Maybe.

The U.S. Federal Constitution explicitly grants anyone accused of a crime the right to be represented by an attorney (U.S. Const. amend. VI). Most state constitutions, including Illinois where I practice law, have a similar provision granting criminal defendants the right to access to counsel (Ill. Const. art. I, sect. 8).

In other words, defendants have the explicit Constitutional right to access to an attorney to assist in their defense. Who pays for the defense attorney is another matter.

To go a step further, the U.S. Supreme Court has interpreted the Constitution to require courts to provide an attorney.

“. . . reason and reflection require us to recognize that in 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.”

In fact, when a suspect is arrested they are read a set of Miranda rights, which includes language suggesting an attorney will be provided to the defendant.

“If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.”

This “afford” language has really tripped up the general public. Most defendants enter the justice system under the misconception they’ll have access to a free attorney because, from their perspective, they cannot afford to pay for an attorney.

But who really decides whether or not you can “afford” a criminal defense attorney? Do you? The government decides, typically using some sort of financial means test.

Given the fact that criminal defense attorneys are expensive (the attorney’s fees for a relatively simple felony charge could run US$5,000+), I think almost 100% of defendants will tell you they cannot “afford” a private criminal defense attorney.

How poor is poor enough to qualify for a free attorney is not universally settled. In Illinois a court will appoint and pay for an attorney if the criminal defendant is “indigent.” (725 ILCS 5/113–3(b))

Typically a criminal defendant must complete an Affidavit of Assets and Liabilities, which the judge will then use to determine if the defendant financially qualifies to receive a free attorney. Federal courts use a similar affidavit (form CJA 23).

Most courts, such as the Illinois DuPage County courts, use the “125% test.” This means the court will appoint an attorney only if the defendant’s annual income is below 125% of the national poverty level (currently $32,750 for a family of four). (Administrative Order 18–13).

The net result is an income ceiling set so low that a grey zone is created where defendants are unable to qualify for a free court-appointed attorney, but still lack the financial means to pay for a private criminal defense attorney.

Even if one qualifies for financial assistance, you get what you pay for. Judiciary Committee Chairman U.S. Senator Patrick Leahy, himself a former criminal prosecutor, has noted-

“ . . . we must also be honest and recognize that in too many courtrooms it is better to be rich and guilty than poor and innocent. The rich will have competent counsel, but those who have little often find their lives placed in the hands of underpaid court-appointed lawyers who are inexperienced, overworked, inept, uninterested, or worse.”

Here are some additional points to keep in mind.

1. In most every jurisdiction a court will not automatically appoint a free attorney in a criminal case. The defendant must ask the court to appoint an attorney (e.g. an attorney from the public defender’s office), usually at the first hearing before the presiding judge.

2. As a general rule courts do not appoint counsel unless the accused crime carries a possible sentence of imprisonment.

3. An attorney appointed by the court may not be entirely free. In some states, a court can order the defendant to reimburse the county/state for the court appointed attorney. In Illinois, reimbursement costs are capped at $500 for misdemeanor cases, and $5,000 for felony cases. (725 ILCS 5/113–3.1)

4. Could the Miranda warning be approved? Perhaps the following would be better.

You have the right to access to an attorney to help in your defense. If you feel you cannot afford an attorney, you can ask the court to determine if you are poor enough to qualify for a free court-appointed attorney.

If you find yourself if that grey zone of not qualifying for a court-appointed attorney, but lack funds for a standard private practice attorney, there are low cost options. Contact your local legal aid and pro bono organizations and bar association for help.