Publication Title

Univerity of Michigan Journal of Law Reform


Fuller v. Oregon, indigent defendants, recoupment

Document Type



Over thirty years ago the United States Supreme Court upheld an Oregon statute that allowed sentencing courts, with a number of important procedural safeguards, to impose on indigent criminal defendants the obligation to repay the cost of their court appointed attorneys. The practice of ordering recoupment or contribution (application fees or co-pays) of public defender attorney's fees is widespread, although collection rates are unsurprisingly low.

Developments since the Court's decision in Fuller v. Oregon show that not only is recoupment not cost-effective, but it too easily becomes an aspect of punishment, rather than legitimate cost-recovery. In a number of jurisdictions, defendants are ordered to repay the cost of their attorney regardless of their ability to pay and without any notice or opportunity to be heard. Many are ordered to pay as a condition of probation or parole, which means they pay under threat of incarceration. In these jurisdictions, recoupment violates the Sixth Amendment, as well as the Due Process and Equal Protection Clauses.

Constitutional problems are exacerbated by the potential for ethical violations; public defenders may have conflicts of interest when they are required to both submit bills to the court and object to those bills on behalf of their clients. And too often defendants are not warned at the outset that they may be responsible for attorney's fees or now those fees will be calculated. In any other context, a client is entitled under the ethical rules to a clear statement of the basis for the fee at the time the lawyer is engaged.

In addition, the thirty years since Fuller have verified that recoupment is bad policy because it imposes punishing debt without real fiscal benefit. It is time to abandon practices that penalize defendants for being poor and exercising their right to counsel. Part II of this article gives an overview of recoupment and contribution as it is practiced throughout the country. Part III describes the constitutional limits to recoupment, as laid out in a series of Supreme Court cases from the 1970s.

Part IV describes how jurisdictions have since diverged on questions of imposition, amount, and enforcement, and shows how a significant number of jurisdictions now treat recoupment as an aspect of punishment. Part V shows that recoupment violates the Sixth Amendment, and the Equal Protection and Due Process clauses of the Fifth and Fourteenth Amendments in jurisdiction that do not provide the safeguards of a pre-imposition determination of ability to pay or notice and opportunity to be heard on the amount and ability to pay.

Part VI argues that many recoupment programs lead to legal representation that violates the Model Rules of Professional Conduct, and consequently the professional codes of most jurisdictions. These ethical violations exacerbate the constitutional problems with many recoupment and contribution programs. Part VII argues that recoupment and contribution are bad policy because, even when implemented constitutionally, they add to an already crushing financial burden on defendants and are rarely cost-effective.

Finally, Part VIII makes specific recommendations.



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