The Vermont judiciary lost around $2 million in three years by failing to collect dues from criminal defendants who are assigned public defenders, Vermont Auditor Doug Hoffer concluded in a report released Monday.
The state collected less than one-third of the $3.1 million in court-ordered fees for public defenders from 2012 through 2014, Hoffer concluded.
"More aggressive action on the part of the judiciary could result in more effective collection of public defender fee debt," Hoffer concluded.
The judiciary, however, took issue with Hoffer's report. Court officials say it may be unconstitutional to aggressively collect payments from poor defendants before assigning them a public defender.
As mandated by the U.S. Constitution, Vermont pays for attorneys for criminal defendants who cannot afford to hire their own. However, defendants are expected to pay a small fee for the services of public defenders. The fee varies based on a defendant's income, and a judge can waive the fee for the most poor, but is usually $50.
For defendants who can pay, state law says that court clerks should seek payment of a portion at their initial court appearance, with the rest paid within two months.
But in practice, Hoffer said, clerks seldom use this collection method. Instead, they typically bill for the fee weeks after the initial court appearance, and rarely receive payment. The judiciary then forwards unpaid debts to the Vermont Department of Taxes, which sometimes takes fees from defendants' tax refunds.
Lawyers who work for the judiciary said that federal courts have ruled that requiring co-payments from indigent defendants before they are assigned attorneys is unconstitutional. They say they have little choice but to seek payment only after the public defender starts working on the case.
"We believe the significance of that concern has been marginalized," Vermont court administrator Patricia Gabel and Chief Superior Judge Brian Grearson wrote in a letter to Hoffer. "The ramifications of denying counsel for nonpayment of a public defender fee are significant. To characterize this as a simple 'constraint,' is a serious understatement."
Though court officials don't believe they can require it, they said they would instruct court clerks to be more aggressive about asking for upfront payment of the public defender fee.
Court officials also suggested that responsibility for collecting the fees be reassigned to the Vermont Defender General's Office, which supervises the public defender program.