New Jersey Took a Big Step Toward Eliminating Public Defender Fees. But Some Costs Remain.

Earlier this summer, New Jersey Governor Phil Murphy signed legislation eliminating onerous fees imposed on people assigned counsel from the state’s Office of the Public Defender (OPD). The law, which took effect immediately, also wiped out all debt owed by former OPD clients.

Advocates who spoke to The Appeal applauded the new law.

“[The legislation] takes the right to counsel, which is granted by the Constitution, out from behind a paywall,” said Marleina Ubel, Policy Analyst at New Jersey Policy Perspective (NJPP), a nonpartisan think tank, and the author of “The High Cost of ‘Free’ Representation: Why New Jersey Should Eliminate Public Defender Fees,” published last year.

But, Ubel warned, “the work isn’t done.” People tried in municipal courts—which tend to handle less severe offenses—can still incur fees just for applying for court-appointed counsel. As such, Ubel said, New Jersey lawmakers need to keep pushing to eliminate defender fees in all circumstances.

According to a 2022 report by the National Legal Aid & Defender Association, the overwhelming majority of states bill people for using a court-appointed attorney. Failure to pay counsel fees can have devastating consequences in some states.

“Most people can’t afford to pay these fees,” said Priya Sarathy Jones, the Deputy Executive Director of the Fines and Fees Justice Center, an advocacy organization. “The person is already indigent. That is how they received counsel.”

Under New Jersey’s previous statute, OPD clients owed higher fees based on the seriousness of the offense and how quickly courts could resolve the case. People charged with first or second-degree crimes were billed $750 for the first five days of a trial, while those facing third or fourth-degree charges had to pay $500. After the first five days, each additional three-day period would cost another $500. Although no one could be denied counsel based on an inability to pay, advocates said the cost placed severe burdens on indigent clients.

“We can’t say that there’s this fundamental right [to counsel] if you have to take on debt to practice that right,” Joe Johnson, Policy Counsel at the American Civil Liberties Union of New Jersey, told The Appeal.

According to Johnson, Black residents in New Jersey faced a disproportionate burden from these fees. A 2021 report from The Sentencing Project revealed that in New Jersey, Black people were imprisoned at more than twelve times the rate at which white people were—the worst disparity rate in the nation. The same report found that New Jersey was one of only 12 states where more than half the prison population was Black.

While the legislation was an important victory, low-income residents may still have to pay for exercising their right to counsel in some cases, said NJPP’s Ubel. The new law only applies to OPD clients. OPD represents people in state courts, not municipal courts. Municipal courts can charge defendants an application fee of not more than $200 just for applying for court-appointed counsel.

Municipal charges generally carry less severe sentences than state charges, but some can still have catastrophic consequences, a fact recognized by both the state’s highest court and the legislature. People may be sent to municipal court for various conduct, from a traffic ticket to simple assault, which carries up to six months in jail.

In New Jersey, low-income defendants tried at the municipal level have a right to counsel without cost if they face imprisonment or another “consequence of magnitude.” However, they receive municipal public defenders from offices unrelated to OPD.

Ultimately, lawmakers should pass legislation to wipe out the municipal application fee as well, said Ubel.

“The goal would be to eliminate [counsel fees] across the board,” she said. “No one should have to have their right to counsel come with a price tag.”