If You Cannot Afford an Attorney, Will One Be Appointed for You?: How (Some) States Force Criminal Defendants to Choose between Paying Bond and Getting a Court-Appointed Attorney

Abstract

In Gideon v. Wainwright, the United States Supreme Court held that the Sixth Amendment right to counsel included a right to state-provided counsel for indigent defendants. The Court did not, however, define what “indigent” means. As a result, states have adopted varying definitions of indigent, many of them factoring in a defendant’s ability to post bond. The inclusion of the defendant’s ability to post bond in the definition of indigent often imposes an impossible choice on defendants: post bond and lose your court-appointed attorney or stay in jail and keep your attorney. Not only does the application of this standard vary from state to state, it is often applied differently within the same state. Ideally, states should revise indigency statutes to remove the ability to post bond as a factor in determining indigency status. Short of removal, however, states can take several steps to ensure that a defendant’s choice to stay in jail does not disqualify them from keeping a court-appointed attorney, namely standardizing the application of indigency definitions through an independent, state-wide indigency commission, and excluding bond payments made by persons other than the individual defendant.