Crime does pay, it seems. The Nevada Supreme Court has told district judges in Clark County to charge fees to defendants who are represented by the public defender’s office or otherwise represented free of charge.
It’s a move most judges have concerns with, and one that will change public policy that is decades old. The criminal defense of indigents has been a growing problem for more than 10 years and is nationwide.
The subject dominated discussion at Wednesday’s monthly criminal law judges gathering at the Regional Justice Center. In a nutshell, indigent defendants who are represented by the public defender or a private appointed attorney will be charged on a sliding scale — a minimum $250 if their case is resolved at the justice court level and up to a maximum $750 if the case nears trial or goes to trial. The more work put into a case, the higher the fee.
The fees go into effect Dec. 1.
"This is their co-pay," said District Judge Douglas Herndon. "Now we’re an HMO."
A similar program is under way in Washoe County, one that Clark County judges agree is too rigid. Indigent defendants there will pay either $250 or $750, leaving no room for discretion.
Nevada law addressing public defenders clearly states their clients will be represented "without charge," although another statute allows judges to assess fees based on a defendant’s ability to pay. Judges rarely did so in the past, but it is now expected.
Like the judges his attorneys appear before daily, Clark County Public Defender Phil Kohn also has concerns. He said he made it clear in earlier discussions that a defendant’s failure to pay the fees could not result in the imposition of a jail sentence or probation revocation. Doing so would be a violation of a defendant’s guaranteed right to appointed counsel, Kohn said.
He said the public defender’s office is not imposing the fee and will not play a role in collections. He sees other problems ahead.
"What about the guy who’s been in jail from the day he was arrested to the day he goes to prison for 10 years. Is that guy going to pay?"
District Judge Jennifer Togliatti said Clark County officials have agreed to establish a dedicated fund and the county will collect the fees through civil assessment. The fee will be assessed when the defendant is sentenced. She said the Division of Parole and Probation will not collect the fees, and she assured judges the fees will not be assessed in lieu of restitution.
"The Supreme Court is insisting on it," she said. "I want to satisfy (the court). Chief Justice (James) Hardesty is on us."
The high court originally said the fee assessments would begin Nov. 1, but Clark County judges didn’t have time to reach consensus on a number of issues regarding the fees.
Togliatti noted that assessing the fees, and how much to assess, is up to the discretion of individual judges. The ability to be fair to defendants could be tested.
"We have no way to know what a defendant can pay," Togliatti said.
And until a system is created that can quickly verify a defendant’s income, judges will have to play a guessing game.
"We don’t have time to check (incomes)," Kohn said.
Theoretically, said Kohn, the fees would go into the county’s indigent defense fund, which pays for the public defender as well as private attorneys the court appoints when the public defender has a conflict of interest. Roughly 17,000 people were represented by the public defender in 2008, Kohn said. To date, the process has not been reduced to writing — and neither has the idea to charge indigent defendants, aside from the fee schedule.
Judges also were concerned defendants would forgo an attorney altogether and risk representing themselves in court, or that a "subtle pressure" to plead guilty would develop.
Nevada Supreme Court spokesman Bill Gang said people who are truly indigent might not be assessed the fee.
"It’s at the judge’s discretion," said Gang, who made it clear this is an issue to be decided by counties. For Kohn and Clark County judges, the move could be a rush to judgment.
"I had no idea we were going to start this Dec. 1 and I don’t think anyone else did either," Kohn said.
Contact Doug McMurdo at dmcmurdo@reviewjournal. com or 702-380-8135.