Too Poor to Hire a Lawyer but not Indigent: How States Use Federal Poverty Guidelines to Deprive Defendants of their Sixth Amendment Right to Counsel (2013)

ABSTRACT & CITATION

This thoroughly researched and reasoned article criticizes the use of the Federal Poverty Guidelines in indigency determinations. The Supreme Court has used a functional definition of “indigence”: a defendant is indigent if his lack of financial resources limits his ability to assert basic rights or otherwise undermines the fairness of his judicial proceeding. The states have then fashioned their own statutory criteria for eligibility for appointed counsel, with the majority of states relying on a percentage of the Federal Poverty Guidelines. The Guidelines were developed in the 1960s as a measure of the minimum amount of money that a family could spend on food to achieve a subsistence level of nutrition. Although the Guidelines are updated based on the Consumer Price Index, they have not been adjusted since the 1960s for changes in the overall makeup of household budgets: food now comprises a much smaller portion of a family’s budget than it did in the ‘60s, so the Guidelines now under-represent poverty. They are particularly problematic as a measure of indigency eligibility for a number of reasons. First, they do not in any way account for the costs of an attorney in the legal marketplace. Second, in some states, a person’s income may qualify her for federal assistance in the form of food stamps (income threshold at, e.g., 130% of the Guidelines), but may not qualify her for assigned defense counsel (income threshold at, e.g., 100% of the Guidelines). Some states even count federal benefits as income that could be spent towards an attorney. Finally, some states consider which assets a defendant could sell off to be able to hire a lawyer, and thereby become destitute. The author recommends that states instead use the Center for Women’s Welfare “Self-Sufficiency Standard,” which calculates the income required to meet basic needs without public assistance. He argues that this standard adheres much more closely to the spirit of the Sixth Amendment as articulated by the Supreme Court.

Gross, J. (2013) Too Poor to Hire a Lawyer but not Indigent: How States Use Federal Poverty Guidelines to Deprive Defendants of their Sixth Amendment Right to Counsel. Washington and Lee Law Review, 70, 1173-1219.