Governor Murphy’s budget plan pitches ending fees for clients of public defenders

It’s a familiar refrain, ingrained on anyone in the criminal justice sphere: “You have a right to an attorney, and if you cannot afford an attorney, one will be appointed for you.”

That part of the Miranda warning, though, doesn’t tell you that New Jersey charges fees — sometimes topping $1,000 — for public defender representation. Those fees can leave people in debt and influence how they plead, according to an October report by progressive think tank New Jersey Policy Perspective.

But under the $53.1 billion budget proposal Gov. Phil Murphy will announce Tuesday, those fees would be eliminated “in recognition of the disparate, long-term impact that many of our justice system fees and fines can have,” an administration official said. 

The governor also earmarked $4.4 million in his new budget proposal to increase the pay of private attorneys who act as public defenders. Murphy is slated to announce his budget plan Tuesday afternoon at the Statehouse in Trenton.

“This budget creates a stronger and fairer criminal justice system by eliminating fees for those who need public defender representation and increasing the compensation rate to attract more attorneys to assist the Office of the Public Defender,” the administration official said.

The folly of fees

The fees, which are assessed on indigent clients regardless of whether they are ultimately found guilty or not, are required by the 1967 state law that created the Office of the Public Defender. So a legislative fix would be needed to eliminate them.

“The public defender’s office would be extremely supportive of an effort to eliminate the fees for clients, given that the reason we’re representing them is that they’re not able to afford lawyers in the first place,” New Jersey Public Defender Joseph E. Krakora.

Krakora oversees a staff of about 1,200, including about 620 attorneys.

People also can get public defender representation through municipalities and counties, but Murphy’s proposal applies only to defendants represented by state public defenders.

State law now requires the public defender’s office to charge people at least $150 for representation and requires full payment within six months. A trial that lasts up to five days for an adult facing first- or second-degree criminal charges costs $750, according to the state’s fee schedule. Every three days after, they get charged $500 more.

The state expects to collect $4 million in fees from people represented by state public defenders for the fiscal year ending June 30, according to state figures. Murphy’s budget plan includes $4 million to cover those fees.

The office annually represents more than 50,000 people statewide in criminal defense, children who have been abused, neglected, or removed from their homes, and people committed for mental health treatment, according to state data. Children typically are not charged for representation.

For defendants who can’t pay, the state can place liens on their assets — something that can ruin their credit and lead to the state garnishing their tax returns or inheritance for payment, said Marleina Ubel, the policy analyst who penned New Jersey Policy Perspective’s October report.

“This is a constitutional right that is behind a paywall for some people. I would call on the Legislature to follow through with this,” Ubel said. “In New Jersey, we have the highest rate of black/white disparities and incarceration in the country. This will create a more equitable justice system.”

Joe Johnson, policy counsel at the American Civil Liberties Union of New Jersey, said fees can sway how a person responds to criminal charges against them.

“Having those fees hanging over your head can have an impact on how you decide to fight your case — whether you accept a plea, whether you want to keep going to trial. Many folks will accept a plea because they know their fines for the public defender will be a lot lower if they don’t go through with the entire trial,” Johnson said. “For the people that have to pay these fees, it’s additional economic stress when they’re already dealing with a lot. And for the state, it’s basically a drop in the bucket.”

Seven states — including New York and Pennsylvania — charge nothing for public representation, according to the National Legal Aid and Defender Association.

An earlier version of this story should have said Murphy wants to increase pay for private attorneys who act as public defenders, not for attorneys who work for the Office of the Public Defender.