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Lawmakers seek end to public defender fees, liens

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Lawmakers seek end to public defender fees, liens

Jun 20, 2023 | 7:13 am ET
By Nikita Biryukov
Lawmakers seek end to public defender fees, liens
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New legislation would stop fees imposed on defendants who cannot afford an attorney and allow public defenders in parole revocation hearings. (Getty Images)

For more than half a century New Jersey has billed criminal defendants who turn to public defenders because they cannot afford legal representation, but those fees could soon become a relic.

Lawmakers seek to end public defender fees charged at the state level in New Jersey while also voiding liens imposed on clients who cannot afford to pay their public defender’s fees. The plan has the backing of Gov. Phil Murphy, who proposed ending public defender fees when he announced his budget plan in February.

“The idea that we’re billing people we represent because they can’t afford lawyers never made any sense to me,” said Joseph Krakora, who has led the state Office of the Public Defender since 2011.

While the specifics vary, most American states charge public defender fees, though New Jersey neighbors New York, Pennsylvania, and Delaware do not.

State statute has required the Office of the Public Defender to bill clients since its 1967 inception, and since 2014, the office has charged its clients from $150 to more than $1,000 depending on the severity of an alleged crime, whether the case makes it to trial, and how long the trial runs.

The money collected from those fees — about $4 million annually — goes into the state’s general fund and does not directly fund the Office of the Public Defender.

“It sounds like a lot of money, but in the grand scheme of things, it’s not very much money,” said Marleina Ubel, a state policy fellow at progressive think tank New Jersey Policy Perspective. “It’s a drop in the bucket for the budget of the Office of the Public Defender, and it is nothing in the state budget.”

The Office of the Public Defender has an annual budget of about $141 million. Murphy’s proposed budget for the fiscal year that begins July 1 includes $53 billion in spending, a number likely to rise with the addition of legislative spending priorities.

Unpaid fees can chase people represented by public defenders, eventually becoming property liens that can damage their credit or stall the purchase of a home, among other things. Such liens last for 10 years, and the oldest among them may charge clients based on public defender hours, resulting in even higher fees.

The system also results in higher costs for Krakora’s office.

“We have a section in my office that all they do is field calls from liens,” Krakora said, adding most public defender fees are collected using a system that garnishes clients’ tax refunds.

The bill, sponsored by Sen. Nellie Pou (D-Passaic), would void those liens and any outstanding fees. It would also throw out any warrants issued solely over unpaid public defender fees.

It’s not clear when the measure will advance. The bill has yet to come before a legislative committee, and Pou did not return a request seeking comment.

The measure would not end fees charged by municipal public defenders.

In a separate bill, Pou seeks to expand the Office of the Public Defender’s mission elsewhere by allowing public defenders to represent parolees during parole revocation hearings.

Annual state budgets, including the current budget, routinely bar using state funds to provide legal representation to parolees. Instead, parolees who cannot afford a lawyer must obtain pro-bono representation from a list of lawyers maintained by the Judiciary. There’s no guarantee their assigned attorney will have any experience in criminal law or that their assignment will be timely.

“The result is most people just throw in the towel, and they want to go to prison and get their time over with, so it’s really a flawed system,” Krakora said.

The Office of the Public Defender would need six additional lawyers and two new investigators for the office to take on parole hearings, he said.

A series of draft recommendations released in May by a Supreme Court panel staffed by judges, attorneys, and court officials and tasked with reviewing the current system of randomly assigning pro-bono attorneys to defendants who can’t afford lawyers said the system is “not effective in matching willing and skilled attorneys with economically disadvantaged clients facing consequences of magnitude.” 

The group, which ceased accepting public comment on the report Monday, recommended the Legislature allow public defenders to partake in parole revocation proceedings and domestic violence contempt hearings, among some others.