Allison D. Kuhn’s article titled “If You Cannot Afford an Attorney, Will One Be Appointed for You?: How (Some) States Force Criminal Defendants To Choose Between Posting Bond and Getting a Court-Appointed Attorney”, published in 2012, provides a critique of the present-day US system of assigning state-provided counsel to indigent defendants. The author focused on the ambiguity of the term ‘indigent’ and criticized the system of indigence determination based on the defendant’s ability to post a bond and get released from prison on bail for the period of legal proceedings. The core idea of Kuhn’s is that such a system poses an unethical choice for individuals – to either remain in prison and have the right for state-provided counsel, or be released
…show more content…
Since states are the primary funders of free counsel, they are generally allowed to create their own systems of determining eligibility for such services. To date, three systems function across the USA using the ability to post bond in indigence determination: de facto rebuttable presumption of non-indigence in cases when defendants post bond; a combination of factors including the ability to post bond but not limited to it only; and use of factors other than the ability to post bond (Kuhns 1799-1800). The first one acts mostly automatically, which causes many errors in the legal proceedings and is often subject to appeals. This system was mostly assessed as dysfunctional, and states are gradually dropping it by moving to a more multi-factor indigence determination mechanism. The latter uses the ability to pay bond alongside with other financial indicators, and generally evaluates the defendant’s liabilities and assets for a more comprehensive conclusion about his/her financial condition and abilities. The third type of decision-making based on factors other than the ability to post bond is more widely targeted at determining whether the defendant can afford hiring private counsel personally. Such an evaluation is traditionally informed by state or federal poverty guidelines, while even in states officially not using the ability-to-post-bond factor in decisions about …show more content…
However, the author at the same time referred to the fundamental notions of liberty and justice, and the constitutional right of all US citizens for legal protection secured by the Sixth Amendment. Kuhns (1806) observed that non-provision of free counsel to those who cannot afford it “erodes societal reliance in the criminal justice system” and overall makes this system illegitimate. Another argument of Kuhns relates to refusal from the old English rule at the dawn of the US emergence as a Free State, but de facto return to this illiberal system by refusing the right to free counsel to indigent
Since states are the primary funders of free counsel, they are generally allowed to create their own systems of determining eligibility for such services. To date, three systems function across the USA using the ability to post bond in indigence determination: de facto rebuttable presumption of non-indigence in cases when defendants post bond; a combination of factors including the ability to post bond but not limited to it only; and use of factors other than the ability to post bond (Kuhns 1799-1800). The first one acts mostly automatically, which causes many errors in the legal proceedings and is often subject to appeals. This system was mostly assessed as dysfunctional, and states are gradually dropping it by moving to a more multi-factor indigence determination mechanism. The latter uses the ability to pay bond alongside with other financial indicators, and generally evaluates the defendant’s liabilities and assets for a more comprehensive conclusion about his/her financial condition and abilities. The third type of decision-making based on factors other than the ability to post bond is more widely targeted at determining whether the defendant can afford hiring private counsel personally. Such an evaluation is traditionally informed by state or federal poverty guidelines, while even in states officially not using the ability-to-post-bond factor in decisions about …show more content…
However, the author at the same time referred to the fundamental notions of liberty and justice, and the constitutional right of all US citizens for legal protection secured by the Sixth Amendment. Kuhns (1806) observed that non-provision of free counsel to those who cannot afford it “erodes societal reliance in the criminal justice system” and overall makes this system illegitimate. Another argument of Kuhns relates to refusal from the old English rule at the dawn of the US emergence as a Free State, but de facto return to this illiberal system by refusing the right to free counsel to indigent