By Michael Lyle
Though people have a constitutional right to legal representation, an antiquated Nevada law allows for some to be charged a fee for using a public defender. The law is unevenly applied, state lawmakers were told Friday, and use of it depends on the judge or court.
Nick Shepack, the Nevada deputy director of the Fines and Fees Justice Center, called the process “the roll of a dice.”
“Our recommendation is to repeal that law and end the public defender fees, which would bring uniformity to the Nevada judicial system and end the uneven practice,” he said
The organization gave state lawmakers an overview of how courts and judges assess public defenders during an interim Judiciary committee meeting.
Alexandra Mork, an intern with the organization, presented lawmakers with an analysis of data from several municipal, justice and district courts.
“Of the 16 justice and municipal courts I examined, seven charged public defenders fees and nine did not,” she said.
The use of fees also varies by judges.
There were five Clark County judges, she said, who in 2023 “assessed fees for over 75% of the defendants before them.”
“There were eight judges who assessed fees on less than 5% of the fees who came before them,” she said.
The United State Supreme Court ruled in Gideon v. Wainwright in 1963 that people have the right legal counsel, which Shepack said helped “established our public defender system throughout the country.”
But Nevada is one of more than 40 states with laws allowing the assessment of fees to defendants who are represented by public defenders, according to the National Legal Aid & Defender Association.
Nevada state lawmakers passed Assembly Bill 70 in 1975 that allowed the courts to charge fees for people receiving public defenders.
“Going back through these minutes in 1975, the main concern was individuals not being truthful about their income in order to receive public defenders and this was designed to discourage that behavior,” Shepack said.
However, courts have since established a practice to better determine if people are indigent and can’t afford an attorney.
Marcie Ryba, the executive director of the Department of Indigent Defense Services, said the Nevada Supreme Court approved an administrative order in 2008 that outlined the process of determining if someone couldn’t afford to hire their own representation.
“According to the court a person will be deemed indigent who is unable without substantial hardship to himself or his dependents to obtain competent, qualified legal counsel on his or her own,” she said.
If people receive public assistance such as the Supplemental Nutrition Assistance Program (SNAP), formerly known as food stamps, or Temporary Assistance for Needy Families, Medicaid, or disability insurance, live in public housing, or earn less than 200% of the federal poverty guideline, they are presumed to have “substantial hardship,” she said.
Mork said the City of Sparks provided data on how two of its judges assessed fees in 2023. While one charged three people out of 913 cases, another charged 58 out of 763 cases.
“That means if you’re in the Sparks Municipal Court and you get one judge, you’re 23 times more likely to be charged a fee than if you get the other judge,” she said.
Even though Mork said public defender fees “can trap defendants and families into cycles of debt,” collection of these fees are going largely unclaimed.
Clark County District Court collected about 8%, or $27,900, of the public defender fees assessed against defendants,, according to the Fines and Fees Justice Center analysis. Washoe County District Court collected $171,541 or about 42% of fees assessed.
The analysis doesn’t account for all the fees paid by defendants represented by public defenders in Nevada, Mork said.
“There is no centralized data system, so for some courts we were unable to measure their collection rate percentages because we received only information about either the amount that was collected or the amount that was assessed, but not both,” Mork said.
Democratic Assemblywoman Lesley Cohen asked about the court’s process for collecting the fees and administering the revenue.
“Is there a collection process for the court system as far as how they are getting the funds, what they are doing to get the funds, and what the cost is to the court system for collecting the funds?” she asked.
Shepack said collection mechanisms vary by counties and cities.
“It is very likely that with these low numbers that it is costing more in many courts to attempt to collect these fees than they are actually receiving in the fees,” he said.
If a person is sentenced to prison, Shepack said “there is a mechanism set up through a deduction scheme for anybody who has money deposited on their books by a family member or has a job and gets money deposited on their books from work.”
