Last week, the Seattle Times wrote about how prosecutors for the US Attorneys office are arguing that a Russian hacker, who is accused of stealing and selling tens of millions of credit-card numbers, should have to reimburse the public for the cost of his public defense. The prosecutors allege that the Russian hacker made $18 million running his criminal enterprise and was vacationing at a hotel in the Maldives that costs $1,470 a night before being arrested.
So how does a guy who can afford a $1,470 hotel room get a free public defender? Under the Constitution and the landmark Supreme Court case, Gideon v. Wainwright, 372 U.S. 335 (1963), anyone charged with a criminal offense has a right to an attorney, and if they cannot afford an attorney, one will be appointed to them by the court (at taxpayers expense). This is true regardless of whether the person is accused of stealing $18 million or accused of stealing a candy bar from 7 eleven.
Qualifying for a public defender. Under Washington law, to receive a public defender, you must qualify as indigent under RCW 10.101.010, which defines “indigent” as:
- Receiving one of the following types of public assistance: Temporary assistance for needy families, aged, blind, or disabled assistance benefits, medical care services under RCW 74.09.035, pregnant women assistance benefits, poverty-related veterans’ benefits, food stamps or food stamp benefits transferred electronically, refugee resettlement benefits, medicaid, or supplemental security income; or
- Involuntarily committed to a public mental health facility; or
- Receiving an annual income, after taxes, of one hundred twenty-five percent or less of the current federally established poverty level; or
- Unable to pay the anticipated cost of counsel for the matter before the court because his or her available funds are insufficient to pay any amount for the retention of counsel.
The federally established poverty level depends on the size of the household. But in 2015, for a one person household, if the person is making less than $11,770 a year it means the person is living in poverty. So in Washington State, if a person lives by themselves and make less than $14,713 a year, the person will get a free public defender.
However, even if the person makes more than $14,713, they may still qualify for a public defender if the person is “[u]nable to pay the anticipated cost of counsel for the matter before the court because his or her available funds are insufficient to pay any amount for the retention of counsel.” In other words, it is up to the public defense agency to decide how much an attorney would cost for that person’s particular case and whether the person can afford an attorney. If the public defense agency finds that the person is not indigent, but that the person does not make enough to afford an attorney, then the person will still qualify for the public defender. The public defender in this case is not completely free. Instead, the public defense agency will make the person sign a promissory note agreeing to make payments towards the cost of their public defender. The total fee imposed is a sliding scale based on the person’s income and the person normally has at least 12 months to pay back the costs.
What documents are reviewed to determine if the person qualifies for a public defender? In King County, the public defense agency requires the person attend a financial interview, where the screener will ask the person questions about their financial situation. The person is asked to submit pay stubs from the last three months, the most recent bank statement, a copy of last year’s income tax return, and any items that shows the person is receiving public assistance or unemployment compensation. RCW 10.101.020 also requires the person to sign an affidavit under penalty of perjury that the answers and documents provided are accurate. RCW 10.101.020 also states the appointment of counsel shall not be denied “because the person’s friends or relatives, other than a spouse who was not the victim of any offense or offenses allegedly committed by the person, have resources adequate to retain counsel, or because the person has posted or is capable of posting bond.” So even if the person has rich parents, they may still qualify for the public defender.
A public defender is only available to those facing criminal charges, involuntary commitment to a mental health facility, contempt of court for failure to pay child support, or if the State is trying to take the person’s child away from them. A public defender is not available for infractions (like speeding tickets) or the DOL Administrative Hearing on a DUI case.
Does the system work? The vast majority of people who qualify for the public defender have told the truth, and actually do qualify for the public defender based on their financial situation. But as the Russian hacker case shows, they system is not perfect and even people staying in $1,470 a night hotel rooms can somehow get a public defender at taxpayers expense. Note the Seattle Times calls the prosecutors attempts to get the Russian hacker to pay for the costs of his public defense as a “rare step.” Also, the prosecutors are not even asking that the public defenders be removed from the case and the Russian hacker have to find a private attorney. The prosecutors are just asking that the Russian hacker be required to pay the taxpayers back for the free attorney they have given him.