Too Poor to Hire a Lawyer but NotIndigent: How States Use the FederalPoverty Guidelines to DepriveDefendants of their Sixth AmendmentRight to Counsel

Table of ContentsI. Introduction 1174II. Meaningful Access to Justice or Meaningless Ritual 1175III. How States Decide Who Is "Too Poor to Hire a Lawyer" 1184IV. Using the Federal Poverty Guidelines to Determine Eligibility 1193V. Using the "Economy Food Plan" to Determine Who Can Afford to Hire an Attorney 1204VI. Eligible for Food Stamps but Ineligible for Assigned Counsel 1206VII. Selling Off Your Meager Assets 1211VIII. Economic Self-Sufficiency Means Being Able to Avoid Substantial Hardship 1213IX. Using the Self Sufficiency Standards to Determine Eligibility for Assigned Counsel 1215X. Conclusion 1218I. IntroductionFifty years ago the Supreme Court announced in Gideon v. Wainwright1 that any person who is "too poor to hire a lawyer" must be provided with counsel.2 The Court pointed out that "our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law."3 The Court reasoned that this "noble ideal cannot be realized if the poor man charged with a crime has to face his accusers without a lawyer to assist him."4States have struggled to create indigent defense delivery systems that live up to the noble ideal that every defendant should stand equal before the law.5 Chronic underfunding has led to excessive caseloads that have in turn raised questions about the effectiveness of the legal representation provided to those too poor to hire a lawyer.6 While the effectiveness of the various indigent defense delivery systems across the country has repeatedly been called into question, what is seldom questioned is how states determine who is indigent.The majority of states currently use some multiple of the Federal Poverty Guidelines to determine if a defendant is "indigent" and therefore eligible for assigned counsel.7 The Federal Poverty Guidelines in no way reflect the actual cost of legal services. They were developed in the early 1960s and are based on the Department of Agriculture's "Economy Food Plan," which estimated the amount of money a family could spend on food in order to meet minimal nutritional needs.8 The use of the Federal Poverty Guidelines to determine eligibility for legal representation results in the denial of counsel to criminal defendants who are too poor to hire a lawyer.This Article will discuss the ways in which the Supreme Court has attempted to define who is too poor to hire a lawyer9 and will survey the existing eligibility criteria used by the states for assigned counsel in criminal cases. It will discuss the development of the Federal Poverty Guidelines, the way in which various federal agencies use them, and the way in which states use them to determine eligibility for assigned counsel, including the increasingly common categorization of defendants as partially or marginally indigent. This Article will then compare the Federal Poverty Guidelines to the Center for Women's Welfare's Self-Sufficiency Standards in an effort to demonstrate the unreasonably low income threshold often set by states when determining eligibility for assigned counsel. Rather than use the Federal Poverty Guidelines as a measure of who is "too poor to hire a lawyer," states should base eligibility determinations on a Self-Sufficiency Standard coupled with the actual costs associated with retaining competent defense counsel.II. Meaningful Access to Justice or Meaningless RitualThe Supreme Court has devoted very little time to the issue of who is indigent, although it should be noted that the term indigent is itself a misnomer. While those defendants who are too poor to hire a lawyer are typically referred to as indigent,10 courts have never required that defendants be wholly without means before they are eligible for assigned counsel.11 In his letter of transmittal of the Federal Criminal Justice Act of 1964 to President John F. …