Idk

Washington and Lee Law Review
Volume 70 | Issue 2 Article 11
Spring 3-1-2013
Too Poor to Hire a Lawyer but Not Indigent: How

States Use the Federal Poverty Guidelines to
Deprive Defendants of their Sixth Amendment
Right to Counsel
John P. Gross
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Part of the Constitutional Law Commons, Criminal Law Commons, and the Criminal Procedure
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Recommended Citation
John P. Gross, Too Poor to Hire a Lawyer but Not Indigent: How States Use the Federal Poverty
Guidelines to Deprive Defendants of their Sixth Amendment Right to Counsel, 70 Wash. & Lee L. Rev.
1173 (2013), https://scholarlycommons.law.wlu.edu/wlulr/vol70/iss2/11
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Too Poor to Hire a Lawyer but Not
Indigent: How States Use the Federal
Poverty Guidelines to Deprive
Defendants of their Sixth Amendment
Right to Counsel
John P. Gross∗
Table of Contents
I. Introduction ................................................................... 1174

II. Meaningful Access to Justice or Meaningless
Ritual ............................................................................. 1175
III. How States Decide Who Is “Too Poor to Hire
a Lawyer” ....................................................................... 1184
IV. Using the Federal Poverty Guidelines to
Determine Eligibility ..................................................... 1193
V. Using the “Economy Food Plan” to Determine
Who Can Afford to Hire an Attorney ............................ 1204
VI. Eligible for Food Stamps but Ineligible for
Assigned Counsel ........................................................... 1206
VII. Selling Off Your Meager Assets .................................... 1211
VIII. Economic Self-Sufficiency Means Being Able to
Avoid Substantial Hardship .......................................... 1213
IX. Using the Self Sufficiency Standards to
Determine Eligibility for Assigned Counsel.................. 1215
X. Conclusion...................................................................... 1218
∗ John P. Gross, Indigent Defense Counsel for the National Association of

Criminal Defense Lawyers, Adjunct Associate Professor of Law, American
University, Washington College of Law. The author wishes to acknowledge the
invaluable research assistance provided by NACDL Law Clerk Melissa Baldwin.
1173
1174 70 WASH. & LEE L. REV. 1173 (2013)
I. Introduction
Fifty 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.”4
States 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
1. Gideon v. Wainwright, 372 U.S. 335 (1963).

2. Id. at 344.
3. Id.
4. Id.
5. See NAT’L RIGHT TO COUNSEL COMM., JUSTICE DENIED: AMERICA’S
CONTINUING NEGLECT OF OUR CONSTITUTIONAL RIGHT TO COUNSEL 50–101 (2009),
http://www.constitutionproject.org/pdf/139.pdf (detailing states’ failures and
explaining the need for reform).
6. See NORMAN LEFSTEIN, SECURING REASONABLE CASELOADS: ETHICS AND
LAW IN PUBLIC DEFENSE 20 (2011) (“The lack of sufficient funding is the leading
cause of [excessive caseloads].”).
7. See infra notes 131–65 and accompanying text (describing how twenty-
eight states base eligibility for assigned counsel on the Federal Poverty
Guidelines).
TO POOR TO HIRE A LAWYER 1175
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 Ritual
The 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
8. Gordon M. Fischer, The Development and History of the Poverty

Thresholds, 55 SOC. SEC. BULL. 43, 43 (1992).
9. Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
10. The American Bar Association’s Standing Committee on Legal Aid and
Indigent Defendants (ABA SCLAID), the National Legal Aid and Defender
Association’s National Indigent Defense Collaboration, and the fact that the
author of this Article is Indigent Defense Counsel for the National Association of
Criminal Defense Lawyers are all examples of how the term indigent has
become synonymous with too poor to hire counsel.
11. See Hardy v. United States, 375 U.S. 277, 292–94 (1964) (Goldberg, J.,
1176 70 WASH. & LEE L. REV. 1173 (2013)
transmittal of the Federal Criminal Justice Act of 1964 to

President John F. Kennedy, Attorney General Robert F. Kennedy
explained that “the term indigency is avoided because of its
implication that only an accused who is destitute may need
appointed counsel or services.”12 In Gideon, the Court simply
stated that those defendants who were too poor to hire a lawyer
were entitled to counsel.13 No guidelines were proposed as to how
a trial court should make the determination that a defendant was
unable to afford counsel.
One case that predates the Court’s decision in Gideon and
that offers some guidance on indigency determinations is Adkins
v. E.I. DuPont de Nemours Co.14 In Adkins, the Court was called
upon to interpret a statute that would have allowed a litigant to
prosecute a claim in federal court without being required to
prepay fees or costs if he submitted an affidavit that stated “that
because of his poverty he is unable to pay the costs.”15 The Court
determined that a litigant need not be “absolutely destitute to
enjoy the benefit of the statute.”16 When making a determination
regarding a litigant’s ability to pay court costs, the Court stated
that the proper inquiry was whether he could pay the costs “and
still be able to provide himself and dependents with the
necessities of life.”17
The Court also noted that requiring litigants to expend all of
their resources before they can claim the benefit of a statute that
exempts those who are unable to pay because of poverty is simply
bad public policy:
To say that no persons are entitled to the statute’s benefits
until they have sworn to contribute to payment of costs, the
concurring) (arguing that the government should provide free trial transcripts to
those defendants “who cannot afford to purchase one,” rather than only those
defendants who are wholly without means); Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 339 (1948) (“We cannot agree with the court below that one
must be absolutely destitute to enjoy the benefit of the statute.”).
12. H.R. REP NO. 88-864, at 7 (1963), reprinted in 1964 U.S.C.C.A.N. 2990,
2995 (referring to 18 U.S.C. § 3006A(a)).
13. Gideon, 372 U.S. at 344.
14. Adkins, 335 U.S. 331.
15. Id. at 333.
16. Id. at 339.
17. Id. (internal quotation marks omitted).
last dollar they have or can get, and thus make themselves
and their dependents wholly destitute, would be to construe
the statute in a way that would throw its beneficiaries into the
category of public charges. The public would not be profited if
relieved of paying costs of a particular litigation only to have
imposed on it the expense of supporting the person thereby
made an object of public support.18
It makes little sense to insist on the collection of court costs from
a litigant who, once those costs have been paid, will then have to
seek financial assistance from the state for the necessities of life.
Two additional cases that were decided in the decade before
Gideon and that focus on the legal rights of the indigent are
Griffin v. Illinois19 and Burns v. Ohio.20 In Griffin, the Court
found that the state must provide a trial transcript to an indigent
appellant if the transcript is necessary for determining the merits
of the appeal.21 The Court compared the requirement that an
appellant pay for the cost of a transcript to a requirement that a
defendant pay costs in advance of a trial and concluded that such
a law “would make the constitutional promise of a fair trial a
worthless thing.”22 Under such circumstances the right to be
heard and the right to counsel would be “meaningless promises to
the poor.”23 The Court ruled that “[i]n criminal trials a State can
no more discriminate on account of poverty than on account of
religion, race, or color.”24 The effective denial of a right to appeal
a criminal conviction to someone who was too poor to afford the
costs of a trial transcript was seen by the Court as “a misfit in a
country dedicated to affording equal justice to all and special
privileges to none in the administration of its criminal law.”25 The
Court clearly stated that “[t]here can be no equal justice where
the kind of trial a man gets depends on the amount of money he
has.”26
18. Id.
19. Griffin v. Illinois, 351 U.S. 12 (1956).
20. Burns v. Ohio, 360 U.S. 252 (1959).
21. Griffin, 351 U.S. at 19–20.
22. Id. at 17.
23. Id.
24. Id.
25. Id. at 19.
26. Id.
1178 70 WASH. & LEE L. REV. 1173 (2013)
In Burns, the Court relied on its earlier holding in Griffin in

ruling that a statute that requires an indigent defendant to pay a
filing fee before he may file a motion for leave to appeal violates
the Fourteenth Amendment’s Due Process Clause.27 The Court
reiterated that “[t]he imposition by the State of financial barriers
restricting the availability of appellate review for indigent
criminal defendants has no place in our heritage of Equal Justice
Under Law.”28
In Gideon, the Court recognized the “obvious truth” that “any
person haled into court, who is too poor to hire a lawyer, cannot
be assured a fair trial unless counsel is provided for him.”29 As
the Court had been in Adkins, Griffin, and Burns, it was
concerned with the ability of the poor to have equal access to
justice. In Douglas v. California,30 decided the same day as
Gideon, the Court extended the Sixth Amendment right to
counsel to “the first appeal, granted as a matter of right to rich
and poor alike, from a criminal conviction.”31 While the Court
noted that the issue in Griffin was the right to a trial transcript
on appeal and the issue in Douglas was the right to counsel on
appeal, it came to the conclusion that “[i]n either case, the evil is
the same: discrimination against the indigent.”32 The Court was
once again concerned with the idea that justice could be
purchased:
The present case, where counsel was denied petitioners on
appeal, shows that the discrimination is not between “possibly
good and obviously bad cases,” but between cases where the
rich man can require the court to listen to argument of counsel
before deciding on the merits, but a poor man cannot. There is
lacking that equality demanded by the Fourteenth
Amendment where the rich man, who appeals as of right,
enjoys the benefit of counsel’s examination into the record,
research of the law, and marshalling of arguments on his
behalf, while the indigent, already burdened by a preliminary
determination that his case is without merit, is forced to shift
for himself. The indigent, where the record is unclear or the
27. Burns v. Ohio, 360 U.S. 252, 258 (1959).

28. Id.
30. Douglas v. California, 372 U.S. 353 (1963).
31. Id. at 356 (citation omitted) (emphasis added).
32. Id. at 355.
errors are hidden, has only the right to a meaningless ritual,

while the rich man has a meaningful appeal.33
The Court’s reasoning in Gideon and Douglas reflects the belief
that “[t]he right to be heard would be, in many cases, of little
avail if it did not comprehend the right to be heard by counsel.”34
The presence of counsel ensures that every defendant will have
meaningful access to the justice system and not a “meaningless
ritual.”35
The year after Gideon and Douglas were decided, the Court
ruled in Hardy v. United States36 that an indigent defendant is
entitled to a free copy of a complete trial transcript on appeal.37
In Justice Goldberg’s concurring opinion in Hardy, he included a
footnote in which he attempted to define “indigence”:
Indigence “must be conceived as a relative concept. An
impoverished accused is not necessarily one totally devoid of
means.” An accused must be deemed indigent when “at any
stage of the proceedings [his] lack of means . . . substantially
inhibits or prevents the proper assertion of a [particular] right
or claim of right.” Indigence must be defined with reference to
the particular right asserted. Thus, the fact that a defendant
may be able to muster enough resources, of his own or of a
friend or relative, to obtain bail does not in itself establish his
33. Id. at 357–58.

34. Powell v. Alabama, 287 U.S. 45, 68–69 (1932)
Even the intelligent and educated layman has small and sometimes
no skill in the science of law. If charged with crime, he is incapable,
generally, of determining for himself whether the indictment is good
or bad. He is unfamiliar with the rules of evidence. Left without the
aid of counsel he may be put on trial without a proper charge, and
convicted upon incompetent evidence, or evidence irrelevant to the
issue or otherwise inadmissible. He lacks both the skill and
knowledge adequately to prepare his defense, even though he had a
perfect one. He requires the guiding hand of counsel at every step in
the proceedings against him. Without it, though he be not guilty, he
faces the danger of conviction because he does not know how to
establish his innocence.
35. Douglas, 372 U.S. at 358.
36. Hardy v. United States, 375 U.S. 277 (1964).
37. See id. at 282 (“We conclude that this counsel’s duty cannot be
discharged unless he has a transcript of the testimony and evidence presented
by the defendant and also the court’s charge to the jury, as well as the testimony
and evidence presented by the prosecution.”).
1180 70 WASH. & LEE L. REV. 1173 (2013)
nonindigence for the purpose of purchasing a complete trial

transcript or retaining a lawyer.38
The conception of indigency as a “relative concept” linked to the
assertion of a particular right is consistent with the noble ideal
that every defendant stands equal before the law. A defendant
need not be “totally devoid of means,” nor must he be completely
barred from asserting a right; it is sufficient that his lack of
financial resources “substantially inhibit[s]” his defense.39
This line of reasoning is reflected in the Court’s decision in
Ake v. Oklahoma40 two decades later. In Ake, the Court ruled that
an indigent defendant is entitled to a psychiatrist when he has
made a preliminary showing that his sanity at the time of the
offense is likely to be a significant factor at trial.41 The Court
pointed out that it “has long recognized that when a State brings
its judicial power to bear on an indigent defendant in a criminal
proceeding, it must take steps to assure that the defendant has a
fair opportunity to present his defense.”42 While Gideon
references an “obvious truth,”43 Ake references the “elementary
principle” grounded in “fundamental fairness” and derived from
the belief “that justice cannot be equal where, simply as a result
of his poverty, a defendant is denied the opportunity to
participate meaningfully in a judicial proceeding in which his
liberty is at stake.”44 The Court referenced Griffin, Burns,
Gideon, and Douglas and stated that “[m]eaningful access to
justice has been the consistent theme of these cases.”45 The Court
also pointed out
38. Id. at 289 n.7 (Goldberg, J., concurring) (citations omitted) (quoting
ATT’Y GEN.’S COMM. ON POVERTY & THE ADMIN. OF CRIMINAL JUSTICE, REPORT ON
POVERTY AND THE ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE 8 (1963)).
39. Id.
40. Ake v. Oklahoma, 470 U.S. 68 (1985).
41. See id. at 84 (“[W]here the consequence of error is so great, the
relevance of responsive psychiatric testimony so evident, and the burden on the
State so slim, due process requires access to a psychiatric examination on
relevant issues, to the testimony of the psychiatrist, and to assistance in
preparation at the sentencing phase.”).
42. Id. at 76.
44. Ake, 470 U.S. at 76.
45. Id. at 77. The Court also mentioned that these same principles have
been extended to “quasi-criminal” proceedings such as paternity actions. Id. at
that mere access to the courthouse doors does not by itself

assure a proper functioning of the adversary process, and that
a criminal trial is fundamentally unfair if the State proceeds
against an indigent defendant without making certain that he
has access to the raw materials integral to the building of an
effective defense.46
While the Supreme Court requires states to provide indigent
defendants with a fair opportunity to present a defense, there is
no requirement that states provide defendants with the best
defense money can buy. In Ross v. Moffitt47 the Court ruled that a
state does not have to provide counsel to an indigent appellant for
a discretionary appeal to a state supreme court. While
recognizing that the absence of counsel would be a “handicap”
and that the presence of a skilled lawyer would “prove helpful to
any litigant able to employ him,” the Court stated that just
because “a particular service might be of benefit to an indigent
defendant does not mean that the service is constitutionally
required.”48 The Court made clear that states do not have “to
duplicate the legal arsenal that may be privately retained by a
criminal defendant in a continuing effort to reverse his
conviction, but only [have] to assure the indigent defendant an
adequate opportunity to present his claims fairly in the context of
the State’s appellate process.”49
In Griffin, Burns, Gideon, Douglas, and Ake, the Supreme
Court examined the various ways in which criminal defendants
are at a disadvantage when they lack financial resources. The
Court never offered an objective definition of what it means to be
indigent; rather the Court looked to the ability of a defendant to
participate meaningfully in judicial proceedings.50 If a
76 (citing Little v. Streater, 452 U.S. 1, 16 (1981) (holding that an indigent

putative father was entitled to a blood test in paternity action)).
46. Id.
47. Ross v. Moffitt, 417 U.S. 600 (1974).
48. Id. at 616.
49. Id.; see also Britt v. North Carolina, 404 U.S. 226, 227 (1971) (requiring
that an indigent defendant be provided with the “basic tools of an adequate
defense”).
50. See Ake v. Oklahoma, 470 U.S. 68, 77 (1985) (“[A]ccess to the
courthouse doors does not . . . assure a proper functioning of the adversary
process, and . . . a criminal trial is fundamentally unfair if the State proceeds
against an indigent defendant without making certain that he has access to the
1182 70 WASH. & LEE L. REV. 1173 (2013)
defendant’s lack of financial resources limits his ability to assert

basic rights or undermines the fairness of the judicial
proceedings, then the defendant is considered indigent.51
There are two additional Supreme Court decisions that deal
with recoupment laws and how their application may violate the
due process rights of indigent criminal defendants. Almost a
decade after Gideon, the Court deemed a recoupment law
unconstitutional because it violated the due process rights of
indigent defendants. In James v. Strange,52 a Kansas recoupment
statute that required a defendant to pay the costs of
representation within sixty days of receiving notice of the amount
owed or else the amount would become a civil judgment was held
to violate equal protection because the defendant was barred
from asserting the ordinary civil protections afforded to other
debtors.53 While the Court recognized a state’s legitimate
interests in recovering the costs associated with providing
defense, the Court stated that such laws “need not blight in such
discriminatory fashion the hopes of indigents for self-sufficiency
and self-respect.”54 The Court went on to conclude that the
statute at issue “embodies elements of punitiveness and
discrimination which violate the rights of citizens to equal
raw materials integral to the building of an effective defense.”); Gideon v.

Wainwright, 372 U.S. 335, 344 (1963) (“[I]n our adversary system of criminal
justice, any person haled into court, who is too poor to hire a lawyer, cannot be
assured a fair trial unless counsel is provided for him.”); Douglas v. California,
372 U.S. 353, 358 (1963) (concluding that when an indigent defendant does not
have access to a lawyer in a nondiscretionary first appeal, he “has only the right
to a meaningless ritual, while the rich man has a meaningful appeal”); Burns v.
Ohio, 360 U.S. 252, 258 (1959) (“Here, the action of the State has completely
barred the petitioner from obtaining any review at all in the Supreme Court of
Ohio.”); Griffin v. Illinois, 351 U.S. 12, 19 (1956) (“Destitute defendants must be
afforded as adequate appellate review as defendants who have money enough to
buy transcripts.”).
51. See, e.g., Gideon, 372 U.S. at 345 (concentrating on the layman’s
inability to determine the propriety of an indictment, to submit effective
evidence, and to establish his innocence).
52. James v. Strange, 407 U.S. 128 (1972).
53. See id. at 141–42 (“State recoupment laws, notwithstanding the state
interests they may serve, need not blight in such discriminatory fashion the
hopes of indigents for self-sufficiency and self-respect. The statute before
us embodies elements of punitiveness and discrimination which violate the
rights of citizens to equal treatment under the law.”).
54. Id. at 141–42.
treatment under the law.”55 The Court did not rule that any
attempt to recoup defense costs by a state would be held to be
unconstitutional but found that the statute in James violated the
Equal Protection Clause because it denied the criminal defendant
the protections available to civil debtors.56
Two years later, the Court upheld a recoupment statute in
Fuller v. Oregon.57 Unlike the statute at issue in James, the
recoupment statute in Fuller afforded the defendant all the
protections of civil judgment debtors.58 In upholding the statute,
the Court observed that the dividing line between those able to
afford representation and those deemed to be indigent created a
system in which a defendant who was barely able to afford
counsel would be at a disadvantage. The Court noted in Fuller
that
[w]e live in a society where the distribution of legal assistance,
like the distribution of all goods and services, is generally
regulated by the dynamics of private enterprise. A defendant
in a criminal case who is just above the poverty line separating
the indigent from the nonindigent must borrow money, sell off
his meager assets, or call upon his family or friends in order to
hire a lawyer. We cannot say that the Constitution requires
that those only slightly poorer must remain forever immune
from any obligation to shoulder the expenses of their legal
defense, even when they are able to pay without hardship.59
The Court was resigned to the fact that “the dynamics of
private enterprise” will impact the “distribution of legal
assistance.”60 Unless the Court were to adopt a rule that all
defendants are entitled to publicly funded defense counsel, there
will inevitably be a group of defendants who are not considered
indigent, but who have such limited financial resources that they
will have difficulty retaining counsel. The Court was willing to
55. Id. at 142.

56. Id. at 141–42.
57. Fuller v. Oregon, 417 U.S. 40 (1974).
58. See id. at 47 (“The Oregon statute under consideration here suffers
from no such infirmity [as the Kansas statute suffered in James]. . . . The
convicted person from whom recoupment is sought thus retains all the
exemptions accorded other judgment debtors . . . .”).
59. Id. at 53–54.
60. Id.
1184 70 WASH. & LEE L. REV. 1173 (2013)
accept that defendants, whether they are ultimately convicted or

not, will suffer some amount of “hardship.”61
A defendant whose trial ends without conviction or whose
conviction is overturned on appeal has been seriously imposed
upon by society without any conclusive demonstration that he
is criminally culpable. His life has been interrupted and
subjected to great stress, and he may have incurred financial
hardship through loss of job or potential working hours. His
reputation may have been greatly damaged. The imposition of
such dislocations and hardships without an ultimate
conviction is, of course, unavoidable in a legal system that
requires proof of guilt beyond a reasonable doubt and
guarantees important procedural protections to every
defendant in a criminal trial.62
If some amount of “financial hardship” is inevitable, then the
issue is at what point is it substantial enough to implicate a
defendant’s Sixth Amendment right to counsel? As the Court
noted in Adkins, it is not necessary for a defendant to spend his
“last dollar” in an effort to retain counsel; a defendant must be
permitted “to provide himself and dependents with the
necessities of life.”63 Nevertheless, the “dynamics of free
enterprise” combined with “a legal system that requires proof
beyond a reasonable doubt,” results in a disproportionate
financial burden on those defendants who have limited financial
resources.64 The indigent receive state-funded representation, the
wealthy are able to use disposable income to retain counsel, and
the poor are expected to borrow money and sell off their meager
assets when they need legal representation.
III. How States Decide Who Is “Too Poor to Hire a Lawyer”
Following the Supreme Court’s decision in Gideon, states

began to devise systems for providing counsel to indigent
defendants charged with crimes. Determining who was too poor
to hire a lawyer was something left to the individual states, and
61. Id. at 54.

62. Id. at 49–50.
63. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948)
(internal quotation marks omitted).
64. Fuller v. Oregon, 417 U.S. 40, 53 (1974).
within the states, was something typically to the discretion of the

trial court.65 The Supreme Court made no attempt to define what
level of income would qualify a defendant for appointed counsel.66
It is reasonable to assume that its omission was intentional
because the point at which a defendant will be too poor to hire a
lawyer is dependent upon a number of factors, including the
seriousness of the charge, the complexity of the case, a
defendant’s income, assets, and liabilities, as well as the typical
fee charged by an attorney in a given area. The legal marketplace
is complex, and it would be difficult to pinpoint with mathematic
certainty the point at which a defendant would be unable to
afford representation.
While the Court’s failure to provide any guidance regarding
which defendants were to be deemed too poor to hire a lawyer is
realistic when we consider the complexity of the legal
marketplace, it is also overly simplistic in that it categorizes
defendants as either too poor to hire a lawyer or, in the
alternative, able to afford representation. The reality is that
many defendants may be able to afford some level of
representation, but the amount of legal services that they can
afford is minimal. In a criminal case, a defendant may be able to
retain the services of a qualified defense attorney during the
preliminary stages of the case but may not be able to pay for the
attorney’s assistance at trial. This fact raises similar concerns to
those addressed by the Court in Griffin, Burns, Gideon, Douglas,
and Ake—whether the poor have meaningful access to the justice
system.
At first, it appears that many states spent little time making
eligibility determinations. A defendant was too poor to hire a
lawyer simply if he said that he was.67 The assumption was that
anyone charged with a crime would hire the best attorney he
65. See infra notes 67–69 and accompanying text (explaining the process by
which states began to establish standards for indigency).
66. See supra note 50 and accompanying text (explaining how the Court in
Griffin, Burns, Douglas, and Ake never attempted to define indigent).
67. See ROBERT L. SPANGENBERG ET AL., U.S. DEP’T OF JUSTICE, CONTAINING
THE COSTS OF INDIGENT DEFENSE PROGRAMS: ELIGIBILITY SCREENING AND COST
RECOVERY PROCEDURES 9 (1986) (“In the past, in many jurisdictions, counsel was
appointed simply on the request of the defendant. Some judges asserted that the
time and effort necessary for eligibility screening was unwarranted, since only a
few defendants would be excluded.”).
1186 70 WASH. & LEE L. REV. 1173 (2013)
could afford. The Supreme Court actually made this same

assumption in Gideon when it noted that “there are few
defendants charged with crime, few indeed, who fail to hire the
best lawyers they can get to prepare and present their
defenses.”68 The Court’s view was that lawyers are “necessities,
not luxuries.”69
Perhaps in response to the rising costs of providing indigent
defense, states have established eligibility guidelines and
screening procedures to ensure that only those defendants truly
too poor to hire a lawyer will be assigned counsel. When defining
indigency, most states have adopted the language used by the
Court in Gideon and provide counsel to defendants too poor to
hire a lawyer.70 State statutes often list a number of factors that
a trial court must consider when deciding if a defendant is
eligible for assigned counsel. For example, in Maryland, the
following factors are considered: “(i) the nature, extent, and
liquidity of assets; (ii) the disposable net income of the applicant;
(iii) the nature of the offense; (iv) the length and complexity of the
proceedings; (v) the effort and skill required to gather pertinent
information; and (vi) any other foreseeable expense.”71 In New
Jersey, courts consider the following:
(a) the financial ability of the defendant to engage and
compensate competent private counsel; (b) the current
employment, salary and income of the defendant including
prospects for continued employment if admitted to bail; (c) the
liquid assets of the defendant, including all real and personal
property and bank accounts; (d) the ability of the defendant to
make bail and the source of bail posted; (e) . . . the willingness
and ability of the defendant’s immediate family, friends or
employer to assist the defendant in meeting defense costs;
(f) . . . an assessment of the probable and reasonable costs of
providing a private defense, based upon the status of the
defendant, the nature and extent of the charges and the likely
issues; (g) . . . the ability of the defendant to demonstrate
convincingly that he has consulted at least three private
attorneys, none of whom would accept the case for a fee within

69. Id.
70. Id.
71. MD. CODE ANN., CRIM. PROC. § 16-210(c)(3)(i)–(vi) (West 2012).
his ability to pay; and (h) the ability of the defendant to

provide all other necessary expenses of representation.72
Some states have incorporated language from the
American Bar Association’s Standards for Providing Defense
Services, which recommend providing counsel “to persons who
are financially unable to obtain adequate representation
without substantial hardship.”73 This language reflects the
Court’s view in Adkins that the cost of obtaining legal
representation should not prevent a defendant from
maintaining the “necessities of life.”74 Many states define
indigency not simply as the inability to hire an attorney, but
rather as the inability to hire an attorney without “substantial
hardship.”75 Alabama,76 Arizona,77 Florida,78 Georgia,79
72. N.J. STAT. ANN. § 2A:158A-14(a)–(h) (West 2013).

73. AM. BAR ASS’N, STANDARDS FOR CRIMINAL JUSTICE: PROVIDING DEFENSE
SERVICES § 5-7.1 (1992) [hereinafter PROVIDING DEFENSE SERVICES].
74. Adkins v. E.I. Dupont de Nemours & Co., 335 U.S. 331, 339 (1948).
Based on the Court’s holding in Adkins, it is reasonable to assume that criminal
defendants are too poor to hire a lawyer if the cost of retaining counsel would
deprive them or their dependents of the necessities of life. Compare Gideon v.
Wainwright, 372 U.S. 335, 344 (1963) (“[A]ny person haled into court, who is too
poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided
for him.”), with Adkins, 335 U.S. at 339 (“We think an affidavit is sufficient
which states that one cannot because of his poverty ‘pay or give security for the
costs . . . and still be able to provide’ himself and dependents ‘with the
necessities of life.’”). The American Bar Association’s Standards for Providing
Defense Services § 5-7.1 takes the same position. See PROVIDING DEFENSE
SERVICES, supra note 73, § 5-7.1 (“Counsel should be provided to persons who
are financially unable to obtain adequate representation without substantial
hardship.”).
75. PROVIDING DEFENSE SERVICES, supra note 73, §5-7.1.
76. See ALA. CODE § 15-12-1(4)(b) (2012) (“A person that has an income
level greater than 125 percent, but at or below 200 percent, of the most recently
revised poverty income guidelines . . . and the court makes a written finding
that not providing indigent defense services on the pending case would cause
the person substantial hardship.”).
77. See ARIZ. R. CRIM. P. 6.7(d) (“If in determining that a person is
indigent . . . , the court finds that such person has financial resources . . . , the
court shall order him or her to pay . . . such amount as it finds he or she is able
to pay without incurring substantial hardship . . . .”).
78. See FLA. R. CRIM. P. 3.111(b)(3) (“Counsel may be provided to a partially
indigent person on request, provided that the person shall defray that portion of
the cost of representation and the reasonable costs of investigation as he or she
is able without substantial hardship to the person or the person’s family . . . .”).
79. See GA. CODE ANN. § 17-12-2(6)(A), (C) (West 2012) (providing that a
1188 70 WASH. & LEE L. REV. 1173 (2013)
Indiana,80 Iowa,81 Louisiana,82 Maryland,83 Michigan, 84

Montana,85 New Mexico,86 Oregon,87 Vermont,88 and
person charged with a misdemeanor who earns less than 100% of the federal
poverty guidelines and a person charged with a felony who earns less than 150%
of the federal poverty guidelines are considered “indigent” unless they can show
“undue hardship”).
80. See Lamonte v. State, 839 N.E.2d 172, 176 (Ind. Ct. App. 2005) (“If a
defendant ‘legitimately lacks financial resources to employ an attorney, without
imposing substantial hardship on himself or his family, the court must appoint
counsel to defend him.’” (quoting Hall v. State, 826 N.E.2d 99, 104 (Ind. Ct. App.
2005))).
81. See IOWA CODE ANN. § 815.9(1)(b) (West 2012) (providing that a person
with an income between 125% and 200% “of the most recently revised poverty
income guidelines . . . shall not be entitled to an attorney . . . , unless the court
makes a written finding that not appointing counsel on the pending case would
cause the person substantial hardship”).
82. See LA. REV. STAT. ANN. § 15:175(A)(1)(b) (2013) (“A person will be
deemed ‘indigent’ who is unable, without substantial financial hardship to
himself or to his dependents, to obtain competent, qualified legal representation
on his own.”).
83. See MD. CODE ANN., CRIM PROC. §16-210(a) (West 2012) (“An individual
may apply for services of the Office as an indigent individual, if the individual
states in writing under oath or affirmation that the individual, without undue
financial hardship, cannot provide the full payment of an attorney and all other
necessary expenses of representation . . . .”).
84. See MICH. CT. R. 6.005(B), available at http://courts.mi.gov/Courts/
MichiganSupremeCourt/CurrentCourtRules/1Chapter6CriminalProcedure.pdf
(“The determination of indigency must be guided by the . . . availability and
convertibility, without undue financial hardship to the defendant and the
defendant’s dependents, of any personal or real property owned . . . .”).
85. See MONT. CODE ANN. § 47-1-111(3) (2012) (providing that a defendant
is entitled to court-appointed counsel if his income is less than 133% of the
federal poverty guidelines or “the disposable income and assets of the applicant
and the members of the applicant’s household are insufficient to retain
competent private counsel without substantial hardship”).
86. See N.M. STAT. ANN. § 31-16-2 (West 2013) (defining a “needy person”
as one “who, at the time his need is determined by the court, is unable, without
undue hardship, to provide for all or a part of the expenses of legal
representation from available present income and assets”).
87. See OR. REV. STAT. ANN. § 151.485(1) (West 2013) (“[A] person is
financially eligible for appointed counsel if the person is determined to be
financially unable to retain adequate counsel without substantial hardship in
providing basic economic necessities to the person or the person’s dependent
family.”).
88. See VT. STAT. ANN. tit. 13, § 5201(3) (2013) (“‘Needy person’ means a
person who at the time his or her need is determined is financially unable,
without undue hardship, to provide for the full payment of an attorney and all
other necessary expenses of representation or who is otherwise unable to employ
Virginia89 all use “substantial hardship” as a factor in eligibility

determinations.
Several other states explicitly mention “economic necessities”
or expenses that they categorize as “necessities.” In Alaska, an
indigent person is one who cannot afford an attorney “without
depriving the party or the party’s dependents of food, clothing, or
shelter.”90 In Delaware, a defendant is considered indigent when
he is unable to retain legal counsel without impairing his
financial ability to provide “economic necessities of life for himself
and his family.”91 In Hawaii, courts consider a defendant’s
expenditures, “especially those which are reasonably necessary to
provide him and his dependents with the necessities of life.”92 In
Nebraska, a defendant is indigent if he is unable to retain counsel
“without prejudicing one’s financial ability to provide economic
necessities for one’s self or one’s family.”93 In Oregon, a person is
eligible for assigned counsel if he is unable to retain counsel
“without substantial hardship in providing basic economic
necessities.”94 Rhode Island defines an indigent defendant as
someone “who after payment of necessary expenses for food,
shelter and medical care” cannot afford to hire counsel.95 And in
Utah, a defendant is indigent if he lacks the means to pay for
legal counsel “without depriving the person or the family of that
person food, shelter, clothing and other necessities.”96
Still another component of the definition of indigency among
the states, in addition to the cost of an attorney, is the cost of
other necessary expenses associated with a defense. This
additional factor takes into consideration the Court’s ruling in
an attorney.”).
89. See VA. CODE. ANN. § 19.2-159(B) (2012) (providing that if the accused
is not a recipient of a state or federally funded welfare program, the court may
appoint counsel after considering, among other factors, “[a]ll assets of the
accused which are convertible into cash within a reasonable period of time
without causing substantial hardship”).
90. ALASKA STAT. § 18.85.170(4) (2013).
91. Potter v. State, 547 A.2d 595, 599 (Del. 1988).
92. State v. Mickle, 525 P.2d 1108, 1111 (Haw. 1974).
93. NEB. REV. STAT. ANN. § 29-3901(3) (LexisNexis 2012).
94. OR. REV. STAT. ANN. § 151.485(1) (West 2013).
95. R.I. GEN. LAWS § 12-15-8 (2012).
96. UTAH CODE ANN. § 77-32-202(3)(a)(i) (West 2013).
1190 70 WASH. & LEE L. REV. 1173 (2013)
Ake that in any criminal prosecution a state “must take steps to

assure that the defendant has a fair opportunity to present his
defense.”97 Under this rationale, a defendant may be considered
indigent if he lacks the resources to hire an investigator or an
expert witness, and the failure to do so would effectively deny him
an opportunity to present a defense.98 For example, Connecticut
defines an indigent defendant as someone who lacks the ability to
retain an attorney “and to provide other necessary expenses of
legal representation.”99 Florida provides counsel to partially
indigent defendants provided that they “defray that portion of . . .
the reasonable costs of investigation as [they are] able without
substantial hardship.”100 Idaho defines a “needy person” as one
who “is unable to provide for the full payment of an attorney and
all other necessary expenses of representation.”101 Kentucky,102
Maryland,103 New Jersey,104 North Carolina,105 Vermont,106 and
97. Ake v. Oklahoma, 470 U.S. 68, 76 (1985).

98. See id. at 83 (determining that the defendant was indigent because he
could not afford to pay a psychiatric expert).
99. CONN. GEN. STAT. ANN. § 51-297(f) (West 2013).
100. FLA. R. CRIM. P. 3.111(b)(3).
101. IDAHO CODE ANN. § 19-851(c) (2012).
102. See KY. REV. STAT. ANN. § 31.100(3)(a) (West 2013) (“‘Needy person’ or
‘indigent person’ means . . . [a] person . . . who, at the time his or her need is
determined, is unable to provide for the payment of an attorney and all other
necessary expenses of representation.”).
103. See MD. CODE ANN., CRIM PROC. § 16-210(c)(2) (West 2012) (“Need shall
be measured according to the financial ability of the applicant to engage and
compensate a competent private attorney and to provide all other necessary
expenses of representation.”).
104. See N.J. STAT. ANN. § 2A:158A-2 (West 2013) (“As used herein ‘indigent
defendant’ means a person who is formally charged with the commission of an
indictable offense, and who does not have the present financial ability to secure
competent legal representation, . . . and to provide all other necessary expenses
of representation.”).
105. See N.C. GEN. STAT. § 7A-450(a) (2012) (“An indigent person is a person
who is financially unable to secure legal representation and to provide all other
necessary expenses of representation in an action or proceeding enumerated in
this Subchapter.”).
106. See VT. STAT. ANN. tit. 13, § 5201(3) (2013) (“‘Needy person’ means a
person who at the time his or her need is determined is financially unable,
without undue hardship, to provide for the full payment of an attorney and all
other necessary expenses of representation or who is otherwise unable to employ
an attorney.”).
Wyoming107 all include “other necessary expenses” when making

indigency determinations.
While the ability to retain counsel will naturally depend
upon the prevailing rates charged by counsel in a particular
location, surprisingly few states consider the actual cost of
retaining counsel when making an indigency determination.
Although consideration may be given to the amount of money
required “on a practical basis, to retain competent counsel,”108
other factors, such as the Federal Poverty Guidelines, which do
not reflect the actual cost of legal services, are used when making
indigency determinations.109 Maine, New Hampshire, and
Wisconsin use standards that mention “the cost of retaining the
services of competent counsel,”110 “the minimum cost of obtaining
qualified private counsel,”111 and “the anticipated costs of
effective representation,”112 respectively. Utah requires the court
to consider “the reasonableness of fees and expenses charged to
the defendant . . . where the defendant is represented by
privately retained defense counsel.”113 Only two states take a
defendant’s failed efforts to retain private counsel into
consideration: New Jersey considers “the ability of the defendant
to demonstrate convincingly that he has consulted at least three
private attorneys, none of whom would accept the case for a fee
within his ability to pay,”114 and West Virginia considers whether
a defendant “has made reasonable and diligent efforts to obtain
private legal representation, and the results of those efforts.”115
107. See WYO. STAT. ANN. § 7-6-106(c) (2012) (providing that the court must
determine whether the defendant can pay for necessary expenses, and if so,
allowing the court to compel such payment).
108. Nikander v. Dist. Court, 711 P.2d 1260, 1262 (Colo. 1986).
109. See id. (“Factors to be considered include whether the defendant has
any dependents, whether he is employed, income from all sources, real and
personal property owned, extent of any indebtedness, necessary living expenses,
and the Eligibility Income Guidelines which reflect the current Federal Poverty
Guidelines.”).
110. ME. R. CRIM. P. 44(b).
111. N.H. REV. STAT. ANN. § 604-A:2-c (2013).
112. WIS. STAT. ANN. § 977.02(3)(a) (West 2013).
113. UTAH CODE ANN. § 77-32-202(3)(b)(v) (West 2013).
114. N.J. STAT. ANN. § 2A:158-14(g) (West 2013).
115. W. VA. CODE ANN. § 29-21-16(e)(6) (West 2013).
1192 70 WASH. & LEE L. REV. 1173 (2013)
Eligibility for assigned counsel requires that a state

determine who is too poor to hire a lawyer. This means that
eligibility for assigned counsel is a function of both how much
money a defendant is able to spend and how much it would cost
to retain a competent defense attorney. Even if the Federal
Poverty Guidelines could be used to presume that a defendant
had some disposable income, that fact alone does not establish
that he is able to hire a lawyer. Some consideration must be given
to the actual cost of representation in a specific area.
Another reality of the legal market that is ignored by many
state standards regarding qualifications for assigned counsel is
the fact that most defense attorneys require a substantial
retainer before agreeing to represent a defendant.116 Despite this
fact some states take into consideration a defendant’s ability to
borrow money as well as his credit rating. Hawaii,117 New
Hampshire,118 South Dakota,119 and Wyoming120 all explicitly
authorize a trial court to consider a defendant’s capacity to
116. See Adam M. Gershowitz, The Invisible Pillar of Gideon, 80 IND. L.J.
571, 588 (2005)
[W]hile some attorneys may trust their clients to pay the bill, the
overwhelming majority of criminal defense lawyers—whether
practical or jaded—will adopt a more pessimistic view. Accordingly, it
is the practice of criminal defense attorneys to charge an up-front
retainer before agreeing to represent a criminal defendant.
117. See State v. Mickle, 525 P.2d 1108, 1111 (Haw. 1974)
Obviously, no simple formula can be devised that will dispose of every
case where court-appointed counsel is sought by the accused.
However, in determining eligibility based on indigency, the trial court
should take into consideration the . . . applicant’s borrowing capacity
and the extent to which such borrowing will affect his fixed monthly
obligations . . . .
(emphasis omitted).
118. See N.H. REV. STAT. ANN. § 604-A:2-c (2013)
In determining a defendant’s financial ability to obtain counsel, the
rules adopted by the commissioner . . . shall contain a method for
considering the defendant’s ability to borrow some or all of the
necessary funds. The rules shall also consider the possibility of the
defendant paying his counsel fees in periodic installments.
119. See State v. Dale, 439 N.W.2d 112, 116 (S.D. 1989) (“The type and
nature of information which should be furnished is as follows: . . . income from
whatever source and ability to borrow money.”).
120. See WYO. R. CRIM. P. 44(d) (“In making a determination of eligibility,
the judicial officer shall consider . . . the defendant’s capacity to borrow
money.”).
borrow money when making an indigency determination. Maine

and Oklahoma both require consideration of a defendant’s “credit
standing” in the community before finding a defendant to be
eligible for assigned counsel.121
While Justice Goldberg’s definition of indigency mentions
that it would be a mistake to deny defendants appointed counsel
based on the fact that they made bail,122 a number of states use
the fact that a defendant has made bail as a factor in determining
indigency. Florida considers whether a defendant “has been
released on bail in an amount of $5,000 or more [or w]hether a
bond has been posted” when making a determination regarding
indigency.123 Missouri requires the trial court to consider “all the
circumstances of the case,” which includes the “ability to make
bond.”124 New Jersey considers the “ability of the defendant to
make bail and the source of bail posted,”125 and West Virginia
considers whether a defendant “has posted a cash bond for bail or
has obtained release on bond . . . and the amount and source of
the money provided for such bond.”126 Using the fact that
defendants have made bail to deny them appointed counsel has
the potential to force defendants to choose between their liberty
and their right to an attorney.
IV. Using the Federal Poverty Guidelines to Determine Eligibility
While the Supreme Court has never set forth specific

guidelines to determine indigency, and while some states grant
the trial court wide discretion when it makes the determination,
121. See ME. R. CRIM. P. 44(b) (“In making its determination the court shall
consider . . . the defendant’s credit standing . . . .”); OKLA. STAT. tit. 22, ch. 18
app. § I, r. 1.14(A)(1) (2012) (“The qualifications for a defendant to have court-
appointed counsel . . . include, but are not limited to . . . the accused’s credit
standing in the community.”).
122. See Hardy v. United States, 375 U.S. 277, 289 n.7 (1964) (Goldberg, J.,
concurring) (“[T]he fact that a defendant may be able to muster enough
resources, of his own or of a friend or relative, to obtain bail does not in itself
establish his nonindigence for the purpose of purchasing a complete trial
transcript or retaining a lawyer.”).
123. FLA. STAT. ANN. § 27.52(4)(a)(1)–(2) (West 2013).
124. MO. ANN. STAT. § 600.086(1) (West 2013).
125. N.J. STAT. ANN. § 2A:158A-14(d) (West 2013).
126. W. VA. CODE ANN. § 29-21-16(e)(8) (West 2013).
1194 70 WASH. & LEE L. REV. 1173 (2013)
the majority of states have turned to a formulaic approach to

determining eligibility for assigned counsel. Those states all use a
multiple of the Federal Poverty Guidelines when making
eligibility determinations. While it is unclear how the Federal
Poverty Guidelines became intertwined with eligibility
determinations for assigned counsel, there are a number of
factors that may have contributed to their adoption by the
majority of states over the last fifty years. The first is that their
development coincides with the Supreme Court’s decision in
Gideon, as well as the “War on Poverty” announced by the
Johnson Administration in January 1964.127 Second, the Legal
Services Corporation (LSC) was created by the Economic
Opportunity Act of 1964 and was charged with providing civil
legal services to the nation’s poor.128 In determining eligibility
guidelines for their services, the LSC decided to use 125% of the
Federal Poverty Guidelines.129 Over time, a variety of federal
agencies adopted the Federal Poverty Guidelines as a method of
determining eligibility for benefits.130 As costs associated with
providing indigent defense rose, states turned to eligibility
guidelines as a way of cost control. In searching for some
objective criteria to use when making eligibility determinations,
states began to adopt the Federal Poverty Guidelines.
There are currently twenty-eight states that use the Federal
Poverty Guidelines when determining eligibility for assigned
counsel.
127. See Fischer, supra note 8, at 43 (“The Johnson Administration

announced its War on Poverty in January 1964, not long after the publication of
Orshansky’s initial poverty article.”).
128. See 42 U.S.C. § 2996b(a) (2012) (“There is established in the District of
Columbia a private nonmembership nonprofit corporation, which shall be
known as the Legal Services Corporation, for the purpose of providing financial
support for legal assistance in noncriminal proceedings or matters to persons
financially unable to afford legal assistance.”).
129. See 45 C.F.R. § 1611.3(b) (1977) (“Unless specifically authorized by the
Corporation, a recipient shall not establish a maximum annual income level
that exceeds one hundred and twenty-five percent (125%) of the official poverty
threshold as defined by the Office of Management and Budget.”).
130. See, e.g., 47 C.F.R. § 64.610(d)(2) (2011) (requiring an income that does
not exceed 400% of the Federal Poverty Guidelines to be eligible for benefits
under the National Deaf–Blind Equipment Distribution Program).
• Alabama: A person is presumptively eligible for “indigent

defense services” if he has an “income level at or below 125
percent” of the Federal Poverty Guidelines.131 If he has an
income that is above 125% but below 200% of the Federal
Poverty Guidelines, then the court can still assign counsel
if it finds that “not providing indigent defense services on
the pending case would cause the person substantial
hardship.”132
• Alaska: The court may appoint counsel without further
inquiry if “the gross annual income available to the
defendant is less than the adjusted federal poverty
guidelines amount for the defendant’s household size, and
other financial resources (cash, assets, and credit)
available to the defendant are worth less than 50 percent
of . . . the likely cost of private representation through
trial.”133
• Colorado: Defendants who are at or below the Federal
Poverty Guidelines are automatically eligible for assigned
counsel while those earning in excess of 175% are
ineligible under the Federal Poverty Guidelines.134
• Connecticut: The Connecticut Division of Public Defender
Services has established income eligibility guidelines that
permit a finding of indigency if the defendant’s income is
at or below 150% of the Federal Poverty Guidelines when
charged with a misdemeanor and at or below 200% of the
Federal Poverty Guidelines when charged with a felony.135
131. ALA. CODE § 15-12-1(4)(a) (2012).

132. Id. § 15-12-1(4)(b).
133. ALASKA R. CRIM. P. 39.1(f).
134. COLORADO SUPREME COURT, CHIEF JUSTICE DIRECTIVE 04-04:
APPOINTMENT OF STATE-FUNDED COUNSEL IN CRIMINAL AND JUVENILE
DELINQUENCY CASES AND FOR CONTEMPT OF COURT attachments A–C (2011),
http://www.courts.state.co.us/Courts/Supreme_Court/Directives/04-04amended
06-11withAttachmentBrevised3-1-12.pdf (providing tables and charts to
calculate whether a defendant qualifies for assigned counsel).
135. See Conn. Pub. Defenders, Income Eligibility Guidelines, DIVISION OF
PUB. DEFENDER SERVICES (May 5, 2012, 11:04 AM), http://www.ct.gov/
ocpd/cwp/view.asp?a=4089&q=505266 (last visited Apr. 2, 2013) (providing
tables that explain the maximum gross incomes for assigned counsel eligibility
depending on the number of the accused’s dependents) (on file with the
1196 70 WASH. & LEE L. REV. 1173 (2013)
• Florida: “An applicant . . . is indigent if the applicant’s

income is equal to or below 200 percent of the then-current
federal poverty guidelines prescribed for the size of the
household of the applicant by the United States
Department of Health and Human Services or if the
person is receiving Temporary Assistance for Needy
Families–Cash Assistance, poverty-related veterans’
benefits, or Supplemental Security Income (SSI).”136
• Georgia: An indigent defendant is: “[A] person charged
with a misdemeanor, violation of probation, or a municipal
or county offense punishable by imprisonment who earns
less than 100 percent of the federal poverty guidelines
unless there is evidence that the person has other
resources that might reasonably be used to employ a
lawyer without undue hardship on the person or his or her
dependents.”137
• Iowa: “A person is entitled to an attorney appointed by the
court to represent the person if the person has an income
level at or below one hundred twenty-five percent of the
United States poverty level . . . unless the court
determines that the person is able to pay for the cost of an
attorney to represent the person on the pending case.”138
• Kansas: “An eligible defendant shall mean a person whose
combined household income and liquid assets equal less
than the most current federal poverty guidelines . . . .”139
• Kentucky: The court, in determining whether a person is a
needy person and in determining the extent of his inability
to pay, shall consider various factors, including “[t]he
poverty level income guidelines compiled and published by
the United States Department of Labor.”140
Washington and Lee Law Review).

136. FLA. STAT. ANN. § 27.52(2)(a) (West 2013).
137. GA. CODE ANN. § 17-12-2(6)(A) (2012).
138. IOWA CODE ANN. § 815.9(1)(a) (West 2012).
139. Kan. Admin. Regulations Pertaining to the State Bd. of Indigent Def.
Servs., 105-4-1(b) (2011), http://www.sbids.org/forms/ksbidsreg.pdf.
140. KY. REV. STAT. ANN. § 31.120(2)(h) (West 2013).
• Louisiana: A person will be deemed “indigent” who is

unable, without substantial financial hardship to himself
or to his dependents, to obtain competent, qualified legal
representation on his own. “Substantial financial
hardship” is presumptively determined to include all
defendants who receive public assistance, such as Food
Stamps, Temporary Assistance for Needy Families,
Medicaid, Disability Insurance, resides in public housing,
or earns less than 200% of the Federal Poverty
Guideline.141
• Maine: Defendants are eligible for assigned counsel if
their income is below 110% of the Federal Poverty
Guidelines.142 “Applicants whose income exceeds 110% of
the Federal Poverty Guidelines may be eligible for
assigned counsel if they have extraordinary necessary
monthly expenses that render them unable to retain
counsel.”143
• Maryland: “For an individual whose assets and net annual
income are less than 100 percent of the federal poverty
guidelines, eligibility for services of the Office may be
determined without an assessment regarding the need of
the applicant.”144 “For an individual whose assets and net
annual income equal or exceed 100 percent of the federal
poverty guidelines, eligibility for the services of the Office
shall be determined by the need of the applicant.”145
141. LA. REV. STAT. ANN. § 15:175(A)(1)(b) (2013).

142. See Me. Comm’n on Indigent Legal Servs. 94-649, Chapter 401,
§ 1(2)(D), http://www.maine.gov/mcils/rules/rules/Indigency%20Guidelines%20
Final%20Adopted%20to%20SOS.pdf (establishing guidelines for determining
financial eligibility of defendants for assigned counsel).
143. Id. § 1(2)(F).
144. MD. CODE ANN., CRIM. PROC. § 16-210(b) (West 2012).
145. Id. § 16-210(c)(1); see also Office of the Pub. Defender v. State, 993
A.2d. 55, 69 (Md. 2010) (holding that it was reversible error to only consider the
Federal Poverty Guidelines when determining eligibility).
[W]here the local OPD declines representation to a defendant
erroneously, because of the local OPD’s failure to consider properly
the statutorily-mandated criteria for determining indigency, and
where a court finds, upon its subsequent mandatory independent
review, that the individual qualifies for representation, the trial
1198 70 WASH. & LEE L. REV. 1173 (2013)
• Massachusetts: A defendant is indigent if his income, after

taxes, is “125 per cent or less of the current poverty
threshold established annually by the Community
Services Administration pursuant to section 625 of the
Economic Opportunity Act, as amended.”146
• Minnesota: “A defendant is financially unable to obtain
counsel if the defendant, or any dependent of the
defendant who resides in the same household as the
defendant, receives means-tested governmental
benefits.”147
• Missouri: “A defendant may be considered indigent if
his/her gross pay and other sources of income do not
exceed the federal poverty guideline as issued in the
Federal Register by the U.S. Department of Health and
Human Services.”148
• Montana: “An applicant is indigent if the applicant’s gross
household income . . . is at or less than 133% of the
poverty level set according to the most current federal
poverty guidelines . . . .”149
• Nevada: Nevada’s Indigent Defense Commission issued a
report that found that the methods utilized in Nevada’s
courts and defender offices to determine eligibility for
assigned counsel vary widely.150 The report recommended
court, in carrying out its role as “ultimate protector” of the

Constitutional right to counsel, may appoint an attorney from the
local OPD to represent the indigent individual unless an actual and
unwaived or unwaivable conflict of interest would result thereby.
Id.
146. MASS. GEN. LAWS ch. 261, § 27A(b) (2000).
147. MINN. STAT. ANN. § 611.17 (West 2013); see also State v. Jones, 772
N.W.2d 496, 502–03 (Minn. 2009) (holding that a district court must consider all
of the available information regarding a defendant’s financial circumstances
that are relevant to the defendant’s eligibility for a public defender and cannot
simply rely on the Federal Poverty Guidelines to determine eligibility).
148. MO. CODE REGS. ANN. tit. 18, § 10-3.010(3)(A) (2012).
149. MONT. CODE ANN. § 47-1-111(3)(a) (2012).
150. See In re Review of Issues Concerning Representation of Indigent
Defendants and Juvenile Delinquency Cases, ADKT No. 411, Exhibit B at 20
(Nev. Nov. 20, 2007) [hereinafter Nevada Indigent Defendants], available at
http://www.nevadajudiciary.us/index.php/viewdocumentsandforms/func-
the adoption of a standard for determining indigency that

would create a presumption of indigency if the defendant
earned less than 200% of the Federal Poverty
Guidelines.151
• New Mexico: The New Mexico Public Defender
Department uses the Federal Poverty Guidelines to
determine eligibility.152
• North Dakota: The North Dakota Commission on Legal
Counsel for Indigents has established guidelines to
determine eligibility for indigent defense services.153
Defendants are automatically qualified if they are eligible
for Temporary Aid to Needy Families (TANF) or
Supplemental Security Income (SSI), but those with
income in excess of 125% of the Federal Poverty
Guidelines are generally not qualified unless there are
exceptional factors.154
• Ohio: An applicant is “presumptively eligible” for assigned
counsel if his income is below 125% of the Federal Poverty
Guidelines155 and “presumptively ineligible” if his income
is over 187.5%.156
• South Carolina: A presumption that the person is indigent
shall be created if the person’s net family income is less
startdown/368 (describing the various methods used in Nevada for determining

who is eligible for defense services at the public’s expense).
151. See id. at Exhibit B at 20 (specifying the recommendation for the
presumption of “substantial hardship” for certain defendants such that the
defendant should be regarded as indigent).
152. See What are the Guidelines for Determining Eligibility, N.M. PUB.
DEFENDER DEP’T, http://www.pdd.state.nm.us/clients/What_are_the_Guidelines_
for_Determining_Eligibility.php (last visited Apr. 2, 2013) (stating that New
Mexico refers to the Federal Poverty Guidelines in calculating eligibility for a
public defender) (on file with the Washington and Lee Law Review).
153. See Guidelines to Determine Eligibility for Indigent Defense Services,
N.D. COMM’N ON LEGAL COUNSEL FOR INDIGENTS, 2 (Apr. 20, 2011),
http://www.nd.gov/indigents/docs/guidelines.pdf. (“If one of these conditions is
not met, indigent defense services are not provided by the Commission.”).
154. See id. at 7−8 (describing automatic qualification for indigent defense
services and the role of the federal poverty level in determining eligibility).
155. OHIO ADMIN. CODE 120-1-03(C) (2013).
156. Id. 120-1-03(D).
1200 70 WASH. & LEE L. REV. 1173 (2013)
than or equal to the Poverty Guidelines established and

revised annually by the United States Department of
Health and Human Services and published in the Federal
Register. Net income shall mean gross income minus
deductions required by law.157
• Tennessee: “When making a finding as to the indigency of
an accused, the court shall take into consideration . . . the
poverty level income guidelines compiled and published by
the United States department of labor.”158
• Utah: Indigency means that a person “has an income level
at or below 150% of the United States poverty level as
defined by the most recently revised poverty income
guidelines published by the United States Department of
Health and Human Services.”159
• Vermont: Defendants must pay a portion of the cost of
representation based on a formula derived from the
Federal Poverty Guidelines;160 defendants who make 200%
or more of the Federal Poverty Guidelines must pay 100%
of the cost of representation.161
• Virginia: “If the accused does not waive his right to
counsel or retain counsel on his own behalf, counsel shall
be appointed for the accused if his available funds are
equal to or below 125 percent of the federal poverty income
guidelines prescribed for the size of the household of the
accused by the federal Department of Health and Human
Services . . . . If the available funds of the accused exceed
125 percent of the federal poverty income guidelines and
the accused fails to employ counsel and does not waive his
right to counsel, the court may, in exceptional
157. S.C. CODE ANN. REGS. 602(b)(3) (2013).

158. TENN. CODE ANN. § 40-14-202(c)(4) (2013).
159. UTAH CODE ANN. § 77-32-202(3)(a)(ii) (West 2013).
160. See VT. STAT. ANN. tit. 13, § 5238(b) (2013) (defining the required
copayment of persons assigned counsel).
161. See id. (establishing a chart that calculates the defendant’s percentage
of direct cost per case based on his income as a percentage of the federal poverty
level).
circumstances, and where the ends of justice so require,

appoint an attorney to represent the accused.”162
• Washington: Indigent means a person who is “receiving an
annual income, after taxes, of one hundred twenty-five
percent or less of the current federally established poverty
level.”163
• West Virginia: The West Virginia Public Defender Service
uses eligibility guidelines that are 150% of the Federal
Poverty Guidelines.164
• Wisconsin: When determining eligibility, the
representative of the state public defender shall “treat
income as available to the person to pay the costs of legal
representation only if the gross income exceeds 115
percent of the federal poverty guideline.”165
In addition, a number of states delegate the responsibility for
providing indigent defense to individual counties.166 While it is
difficult to determine with precision just how many of these
counties use the Federal Poverty Guidelines when determining
eligibility, there is a great deal of evidence that suggests that
their use is widespread.
A survey of the 254 counties in Texas found that thirty-eight
counties considered defendants eligible for assigned counsel if
they made less than 100% of the Federal Poverty Guidelines,
fifty-four counties found defendants eligible for assigned counsel
162. VA. CODE ANN. § 19.2-159(B)(3) (2012).

163. WASH. REV. CODE ANN. § 10.101.010(3)(c) (West 2013).
164. See Frequently Asked Questions, W. VA. PUB. DEFENDER SERVS., (Jan.
18, 2013), http://www.wvpds.org/ (last visited Apr. 2, 2013) (describing factors a
court should use in determining eligibility under West Virginia Code § 29-21-16,
including income guidelines that are established by the West Virginia Public
Defender Services and based on the Federal Poverty Guidelines) (on file with
the Washington and Lee Law Review); see also W. VA. CODE ANN. § 29-21-16(a)
(West 2013) (stating that West Virginia Public Defender Services must
establish, review, and update financial guidelines for determining eligibility for
legal representation).
165. WIS. STAT. ANN. § 977.02(3)(c) (West 2013).
166. See, e.g., PA. CONS. STAT. ANN. § 9960.6(b) (West 1969) (giving the
public defender of each county in the state the power to appoint counsel to a
person “after being satisfied of the person’s inability to procure sufficient funds
to obtain legal counsel to represent him”).
1202 70 WASH. & LEE L. REV. 1173 (2013)
if they made less than 125% of the Federal Poverty Guidelines,

and six counties found defendants eligible for assigned counsel if
they made less than 150% of the Federal Poverty Guidelines.167
District courts in Michigan are responsible for appointing
attorneys to represent indigent persons accused of misdemeanors
or ordinance violations.168 There are approximately 100 district
courts in the state.169 The chief judge of a circuit court is also
responsible for assigning counsel to indigent defendants who are
accused of felonies.170 There are fifty-seven circuit courts in the
state.171
The Third Judicial Circuit Court of Michigan, which is the
largest circuit court in Michigan, defines an indigent defendant
as someone who has a gross income level at or below 133% of the
Federal Poverty Guidelines;172 a person who has a gross income
level greater than 133% of the Federal Poverty Guidelines is not
indigent absent other mitigating circumstances.173 If retaining
counsel would result in substantial hardship for someone who has
a gross income level greater than 133% of the Federal Poverty
Guidelines, the court can appoint counsel but may require the
person to contribute to the cost of representation.174
167. TEX. TASK FORCE ON INDIGENT DEF., THE COSTS AND BENEFITS OF AN
INDIGENT DEFENDANT VERIFICATION STUDY 3 (2007), http://www.txcourts.
gov/tidc/pdf/Supplement%20to%20Verification%20Study-%20FINAL.pdf.
168. See MICH. COMP. LAWS ANN. § 600.8317 (West 2012) (“The district court
and the several judges thereof may . . . appoint attorneys to represent indigent
persons accused of misdemeanors or ordinance violations . . . .”).
169. Michigan Trial Courts, MICH. CTS. ONE CT. OF JUSTICE, http://www.
courts.michigan.gov/courts/trialcourts/pages/default.aspx (last visited Apr. 2,
2013) (on file with the Washington and Lee Law Review).
170. See MICH. COMP. LAWS. ANN. § 775.16 (West 2012) (“Upon proper
showing, the chief judge shall appoint or direct the magistrate to appoint an
attorney to conduct the accused’s examination and to conduct the accused’s
defense.”).
171. Michigan Trial Courts, supra note 169.
172. See Determination of Indigence and Substantial Hardship Guidelines,
STATE OF MISS. JUDICIARY (2012), https://www.3rdcc.org/Documents%5CAdminis
tration%5CBudgetFinance%5CCollections%5C2012%20Poverty%20Level%20
Guidelines%5E%5E%5E.pdf (“A party may be deemed ‘indigent’ if the person
has a gross income level at or below one hundred and thirty-three percent
(133%) of the United States poverty level . . . .”).
173. See id. (defining a person who is not indigent but allowing for
mitigating circumstances).
174. See id. (defining the circumstances in which an otherwise ineligible
Nebraska is divided into twelve judicial districts that

encompass ninety-three counties175 with district courts having
jurisdiction over felonies and county courts having jurisdiction
over misdemeanors.176 The Third Judicial District, which
encompasses Lincoln County, Nebraska, the second most
populous county, has enacted a rule that defines an indigent
defendant as someone “receiving an annual gross income of 125%
or less of the current federally established poverty level.”177
A report concluded that New York State had guidelines for
the appointment of counsel in only a few of their sixty-two
counties and that, even in those counties, the guidelines were not
uniformly applied.178 The result is that a defendant may be
deemed eligible for the appointment of counsel in one county and
ineligible in a neighboring county or even in a different court in
the same county.179 And in Pennsylvania, each county’s public
defender has the authority to set eligibility guidelines.180
There are a few state courts that have rejected the idea that
economic formulas can be used when making eligibility
person can obtain appointed counsel).

175. District Court Judge Address List, STATE OF NE. JUD. BRANCH, http://
www.supremecourt.ne.gov/dc/judges (last visited Apr. 2, 2013) (on file with the
176. See The Nebraska Judicial System, STATE OF NE. JUD. BRANCH (Nov. 19,
2012), http://www.supremecourt.ne.gov/4853/nebraska-judicial-system (last
visited Apr. 2, 2013) (describing the roles of the district courts and the county
courts) (on file with the Washington and Lee Law Review).
177. State of Ne. Jud. Branch, Rules of the District Court for the Third
Judicial District, Rule 3-13 (June 23, 2010), http://www.supremecourt.
ne.gov/external-court-rules/4163/rule-3-13-appointment-counsel-indigent-parties
-standards-and-procedures (last visited Apr. 2, 2013) (on file with the
178. See COMM’N ON THE FUTURE OF INDIGENT DEF. SERVS., FINAL REPORT TO
THE CHIEF JUDGE OF THE STATE OF NEW YORK 15−16 (2006), http://
courts.state.ny.us/ip/indigentdefense-commission/IndigentDefenseCommission_
report06.pdf (concluding that there are “no clear standards” regarding eligibility
determinations and procedures).
179. See id. (noting the confusion resulting from the lack of uniformity
among counties).
180. See Dauphin Cnty. Pub. Defender’s Office v. Court of Common Pleas,
849 A.2d 1145, 1151 (Pa. 2004) (reaffirming the public defender’s “discretion to
represent individuals whose income exceeds the Federal Poverty Income
Guidelines . . . but who have satisfied the Public Defender that they are unable
to obtain sufficient funds to obtain legal counsel”).
1204 70 WASH. & LEE L. REV. 1173 (2013)
determinations.181 Nevertheless, the Federal Poverty Guidelines

have become the standard for determining eligibility for assigned
counsel in the majority of states and counties across the country.
V. Using the “Economy Food Plan” to Determine Who Can Afford

to Hire an Attorney
The Federal Poverty Guidelines were developed by Mollie

Orshansky, an economist working for the Social Security
Administration in the early 1960s.182 The Guidelines were never
meant to be a general measure of poverty;183 they were only to be
used to assess the relative risks of low economic status.184 The
U.S. Census Bureau has stated that “the official poverty measure
should be interpreted as a statistical yardstick rather than a
complete description of what people and families need to live.”185
The Guidelines are of limited value because they are based
solely on the cost of food.186 Orshansky used the data from the
181. See, e.g., Tinsley v. Commonwealth, 185 S.W.3d 668, 672 (Ky. Ct. App.
2006) (“The exact point on the economic scale at which a defendant becomes
indigent and therefore entitled to have counsel furnished is not subject to
precise measurement . . . .” (citation omitted)); Lamonte v. State, 839 N.E.2d
172, 176 (Ind. Ct. App. 2005) (“It is not possible to set specific financial
guidelines for the determination of indigency.”); State v. Vincent, 883 P.2d 278,
282 (Utah 1994) (“We think it best to loosely define indigency at the present
time, creating . . . a rather broad pasture for trial judges applying the law of
indigency to the facts before them.”); People v. Gillespie, 201 N.W.2d 104, 106
(Mich. Ct. App. 1972) (“It is impossible to lay down absolute standards as to
what constitutes indigency.” (internal quotation marks omitted)); State v. Dale,
439 N.W.2d 112, 115 (S.D. 1989) (“Indigence should be considered without resort
to artificially pre-determined fiscal standards or guidelines . . . .”).
182. See Fischer, supra note 8, at 2 (“The poverty thresholds were developed
in 1963−64 by Mollie Orshansky . . . .”).
183. See id. (stating that Orshansky’s original purpose for the thresholds
was not to measure poverty).
184. See id. (stating that Orshansky’s intent for the poverty thresholds was
to “develop a measure to access the relative risks of low economic status . . .
among different demographic groups of families with children”).
185. CARMEN DENAVAS-WALT, BERNADETTE D. PROCTOR & CHERYL HILL LEE,
U.S. CENSUS BUREAU, INCOME, POVERTY, AND HEALTH INSURANCE COVERAGE IN
THE UNITED STATES: 2004, at 45 (2005), http://www.census.gov/prod/2005
pubs/p60-229.pdf.
186. See Fischer, supra note 8, at 4 (describing how Orshansky developed
the poverty thresholds using food plans prepared by the Department of
Agriculture).
Department of Agriculture’s “Household Food Consumption

Survey,” which indicated that Americans spent about one-third of
their household income on food.187 She then used the dollar
amounts from the Department of Agriculture’s “Economy Food
Plan,” which estimated the minimum amount of money that could
be spent on food to ensure an adequate level of nutrition and
multiplied those by three to arrive at the poverty thresholds.188
Over the years, the Federal Poverty Guidelines have been
updated annually based on the Consumer Price Index.
The Guidelines do not take into account the cost of housing,
child care, health care, transportation, or other necessary
expenses.189 Because the threshold assumes that one-third of
household income will be spent on food190 and has only been
updated using the Consumer Price Index,191 it does not take into
account relative changes in household budgets over the last fifty
years. For example, consumers spent only 13.7% of their income
on food during 2011.192 The Guidelines also do not account for
specific family composition193 or geographic location;194
households are simply made up of a certain number of people and
apply throughout the continental United States.
187. See id. (stating that the data underlying Orshansky’s plan came from
the Agriculture Department’s 1955 Household Food Consumption Survey).
188. See id. at 5 (articulating Orshansky’s “‘multiplier’ methodology” for
deriving the poverty thresholds).
189. See id. at 4 (“[E]xcept for the area of food, no definitive and accepted
standards of minimum need for major consumption items existed either then or
today.”).
190. See id. at 5.
191. See id. at 8 (stating that the Consumer Price Index is the basis for any
annual changes to the poverty threshold).
192. Consumer Expenditures—2011, U.S. DEP’T OF LABOR, 2 (Sept. 25, 2012),
http://www.bls.gov/news.release/pdf/cesan.pdf (illustrating the shares of average
annual expenditures on food by income quintiles, the average of which is 13.7%).
193. See Fischer, supra note 8, at 4 (“Orshansky did not develop the poverty
thresholds as a standard budget—that is, a list of goods and services that a
family of a specified size and composition would need to live at a designated
level of well-being . . . .”).
194. See id. at 10 (stating that the 1970 revisions to the poverty threshold
eliminated the distinction between “farm” and “nonfarm” families).
1206 70 WASH. & LEE L. REV. 1173 (2013)
VI. Eligible for Food Stamps but Ineligible for Assigned Counsel
Despite their limitations, the Federal Poverty Guidelines, or

percentage multiples of them, are used as an eligibility criterion
for a wide range of federal programs. To be eligible for the
Department of Agriculture’s Women, Infants, and Children
Program (WIC), which provides food, nutrition education, and
health screening to pregnant women and children, household
income must be below 185% of the Federal Poverty Guidelines.195
To be eligible for the Supplemental Nutritional Assistance
Program (SNAP), formerly the Food Stamp Program, household
income must be below 130% of the Federal Poverty Guidelines.196
The Department of Agriculture’s National School Lunch Program
provides free lunches to children from families with incomes at or
below 130% of the Federal Poverty Guidelines;197 children from
families with household income between 130% and 185% of the
Federal Poverty Guidelines are eligible for reduced price meals
and cannot be charged more than forty cents.198
To be eligible for the Department of Health and Human
Services’ Low Income Home Energy Assistance Program
(LIHEAP) that provides assistance in managing costs associated
with energy bills and weatherization, household income must be
below 150% of the Federal Poverty Guidelines.199 The
Department of Health and Human Services Children’s Health
Insurance Program (CHIPS) serves uninsured children up to age
nineteen in families with incomes too high to qualify them for
195. See WIC Income Eligibility Guidelines 2012−2013, U.S. DEP’T OF AGRIC
(July 13, 2012), http://www.fns.usda.gov/WIC/howtoapply/incomeguidelines.htm
(last visited Apr. 2, 2013) (stating the program’s eligibility requirements on the
basis of income) (on file with the Washington and Lee Law Review).
196. Supplemental Nutritional Assistance Program, U.S. DEP’T OF AGRIC.
(Oct. 4, 2012), http://www.fns.usda.gov/snap/applicant_recipients/eligibility.htm
#income (last visited Apr. 2, 2013) (on file with the Washington and Lee Law
Review).
197. National School Lunch Program, U.S. DEP’T OF AGRIC., 2 (Aug. 2012),
http://www.fns.usda.gov/cnd/lunch/AboutLunch/NSLPFactSheet.pdf.
198. Id.
199. LIHEAP Eligibility Criteria, U.S. DEP’T OF HEALTH & HUMAN SERVS.
(May 8, 2012), http://www.acf.hhs.gov/programs/ocs/resource/liheap-eligibility-
criteria (last visited Apr. 2, 2013) (on file with the Washington and Lee Law
Review).
Medicaid.200 While states have broad discretion in setting income

eligibility for CHIPS, forty-six states and the District of Columbia
cover children in families up to or above 200% of the Federal
Poverty Guidelines, and twenty-four of these states offer coverage
to children in families with income at 250% of the Federal
Poverty Guidelines or higher.201
The Department of the Treasury funds Low Income Taxpayer
Clinics (LITC), which represent low-income taxpayers before the
Internal Revenue Service and assist the taxpayers in audits,
appeals, and collection disputes.202 For purposes of the funding, a
low-income taxpayer is defined as having a household income
below 250% of the Federal Poverty Guidelines.203 The LSC sets
maximum eligibility guidelines for individuals seeking civil legal
assistance at 125% of the Federal Poverty Guidelines.204 While
LSC provided legal assistance to 2.3 million people in 2011, it
estimates that legal aid offices turn away 50% or more of the
people who apply for assistance and, based on the U.S. Census
Bureau’s 2011 statistics on poverty, that nearly one in five
Americans qualified for civil legal assistance funded by LSC.205
Many states have chosen to define eligibility for assigned
counsel in criminal proceedings based on a multiple of the
Federal Poverty Guidelines. Viewed in isolation, that decision
might appear reasonable. However, when compared to eligibility
guidelines for federal assistance programs like WIC, SNAP,
200. See CHIPS Eligibility Standards, U.S. DEP’T OF HEALTH & HUMAN
SERVS., http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topic
s/Childrens-Health-Insurance-Program-CHIP/CHIP-Eligibility-Standards-.html
(last visited Apr. 2, 2013) (stating the purpose of CHIPS) (on file with the
201. Id.
202. See Low Income Taxpayer Clinics, INTERNAL REVENUE SERV.,
http://www.irs.gov/uac/Low-Income-Taxpayer-Clinics (last visited Apr. 2, 2013)
(describing the funding that the IRS offers to Low Income Taxpayer Clinics) (on
file with the Washington and Lee Law Review).
203. Low Income Taxpayer Clinic Income Eligibility Guidelines, LEGAL
SERVS. CORP. (Aug. 4, 2012), http://www.irs.gov/uac/Low-Income-Taxpayer-
Clinic-Income-Eligibility-Guidelines (last visited Apr. 2, 2013) (on file with the
Washington and Lee law Review).
204. 45 C.F.R. § 1611.3(c) (2005).
205. Fact Sheet on the Legal Services Corporation, LEGAL SERVS. CORP.
(2012), http://www.lsc.gov/about/what-is-lsc [hereinafter Fact Sheet] (last visited
Apr. 2, 2013) (on file with the Washington and Lee Law Review).
1208 70 WASH. & LEE L. REV. 1173 (2013)
school lunches, LIHEAP, and CHIPS, their use to determine

eligibility for assigned counsel seems unreasonable.
Georgia defines an indigent person as “a person charged with
a misdemeanor . . . who earns less than 100 percent of the
Federal Poverty Guidelines.”206 In Missouri, “a defendant may be
considered indigent if his/her gross pay and other sources of
income do not exceed the federal poverty guidelines.”207 In Maine,
defendants are eligible for assigned counsel if their income is
below 110% of the Federal Poverty Guidelines.208 In Virginia,
“counsel shall be appointed for the accused if his available funds
are equal to or below 125% of the federal poverty income
guidelines.”209
The result is that in Georgia, Missouri, Maine, and Virginia,
a defendant charged with a misdemeanor may be ineligible to
receive state-funded representation because she has an income
slightly above 125% of the Federal Poverty Guidelines but is
eligible for federal assistance through WIC (185%), SNAP (130%),
the School Lunch Program (130%), LIHEAP (150%), and CHIPS
(200%). A defendant making just above 125% of the Federal
Poverty Guidelines receives federal assistance to pay for food,
heat, and medical care for his children but is somehow not
regarded by some states as too poor to hire a lawyer. The LSC’s
income eligibility guidelines (125%), when considered in context,
reflect a desire to devote scarce resources to the poorest of clients
and not a realistic estimate of an income level at which someone
could be expected to hire an attorney. It should also be noted that
the LSC provides assistance in civil cases in which there is not a
constitutional requirement that counsel be provided.210 The LSC
is actually prohibited from funding any form of legal assistance in
206. GA. CODE ANN. § 17-12-2(6)(A) (2012).

207. MO. CODE REGS. ANN. tit. 18, §10-3.010(3)(A) (2012).
208. See supra note 142 and accompanying text (establishing guidelines for
determining financial eligibility of defendants for assigned counsel).
209. VA. CODE ANN. § 19.2-159 (2012).
210. Compare Fact Sheet, supra note 205 (noting that LSC helps low-income
individuals and families with cases involving family law, housing and
foreclosure, consumer issues, income maintenance, military issues, and response
to disasters), with U.S. CONST. amend. VI (“In all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his
defense.” (emphasis added)).
criminal proceedings.211 The fact that some states like Georgia,

Missouri, and Maine use a multiple of the Federal Poverty
Guidelines below 125% when determining eligibility for
assignment of counsel in a criminal case is completely unrealistic.
A far more reasonable, but still imprecise, estimate of the costs of
obtaining specialized legal assistance comes from the guidelines
used by LITCs (250%).
Some states have created a presumption of eligibility for
assigned counsel based on the fact that a defendant is receiving
some type of needs-based benefit, eligibility for which is typically
based on the Federal Poverty Guidelines. For example, Florida
considers a defendant indigent if he is “receiving Temporary
Assistance for Needy Families-Cash Assistance, poverty-related
veterans’ benefits, or Supplemental Security Income (SSI).”212
Louisiana considers all defendants “who receive public
assistance, such as Food Stamps, Temporary Assistance for
Needy Families, Medicaid, Disability Insurance, resides in public
housing” to be indigent and eligible for assigned counsel.213
Massachusetts defines an indigent defendant as “a person who
receives public assistance under aid to families with dependent
children, program of emergency aid for elderly and disabled
residents or veterans’ benefits programs or who receives
assistance under Title XVI of the Social Security Act or the
medicaid program.”214 Minnesota considers a defendant
financially unable to obtain counsel if “the defendant, or any
dependent of the defendant who resides in the same household as
the defendant, receives means-tested governmental benefits.”215
In North Dakota, defendants are automatically qualified if they
are eligible for TANF or SSI, but those with income in excess of
125% of the Federal Poverty Guidelines are generally not
qualified unless there are exceptional factors.216 And Washington
211. See 42 U.S.C. § 2996f(b) (2010) (“No funds made available by the
Corporation . . . may be used . . . to provide legal assistance with respect to any
criminal proceeding . . . .”).
212. FLA. STAT. ANN. § 27.52(2)(a) (West 2013).
213. LA. REV. STAT. ANN. § 15:175 (2013).
214. MASS. GEN. LAWS ch. 261, § 27A(a) (2013).
215. MINN. STAT. ANN. § 611.17(a)(1) (West 2013).
216. See N.D. Comm’n on Legal Counsel for Indigents, supra note 153, at
7−8 (describing automatic qualification for assigned counsel).
1210 70 WASH. & LEE L. REV. 1173 (2013)
considers a defendant to be indigent if he is receiving “temporary

assistance for needy families, aged, blind, or disabled assistance
benefits, medical care . . . pregnant women assistance benefits,
poverty-related veterans’ benefits, food stamps or food stamp
benefits transferred electronically, refugee resettlement benefits,
medicaid, or supplemental security income.”217
While some states find defendants who are already receiving
certain need-based federal benefits automatically eligible for
assigned counsel, other states actually consider these benefits as
“income” when making eligibility determinations. Courts in
Arizona,218 Arkansas,219 and South Dakota220 have held that two
of the factors that should be used when determining indigency
are income from social security and unemployment benefits.
Louisiana requires that the trial court consider “income or funds
from employment or any other source, including public
assistance, to which the accused is entitled.”221 Ohio also
considers “unemployment compensation . . . temporary assistance
to needy families (TANF) compensation, disability compensation,
and all other similar forms of compensation/governmental
assistance comprising household income.”222 And while Virginia
courts presume that a defendant is indigent if he is “a current
recipient of a federally funded public assistance program,” they
also consider income from social security benefits, veteran’s
benefits, and other regular support from an absent family
member.223 The result is that a defendant can be receiving
federally-funded public assistance and be ineligible for assigned
counsel. Even worse, those federal benefits, which are designed to
217. WASH. REV. CODE ANN. § 10.101.010(3)(a) (West 2013).

218. See Morger v. Superior Court, 637 P.2d 310, 311 (Ariz. Ct. App. 1981)
(including “social security and unemployment compensation” as factors
“ordinarily to be considered in determining indigency”).
219. See Hill v. State, 802 S.W.2d 144, 145 (Ark. 1991) (“While there is no
brightline test for indigency, which is a mixed question of fact and law, some of
the factors to be considered are . . . income from employment and governmental
programs such as social security and unemployment benefits . . . .”).
220. See State v. Dale, 439 N.W.2d 112, 116 (S.D. 1989) (stating that the
court should consider social security and unemployment compensation when
reaching a decision on indigency).
221. LA. REV. STAT. ANN. § 15:175(B)(1) (2013).
222. OHIO ADMIN. CODE 120-1-03(A)(1) (2013).
223. VA. CODE ANN. § 19.2-159(B) (2012).
meet basic needs, are viewed as income that can be used to retain
counsel by state courts.
VII. Selling Off Your Meager Assets
The clearest evidence that states have underinclusive

eligibility guidelines for assigned counsel is the designation of
“marginally indigent defendants”224 or defendants who are
“indigent but able to contribute.”225 States have created a
category of defendants who they do not regard as “indigent” and
therefore are not entitled to assigned counsel, but who they
realize are still too poor to hire a lawyer. These defendants are
required to sell off their meager assets to help offset the cost of
providing themselves with defense counsel.226
Florida defines a “partially indigent” defendant as “a person
unable to pay more than a portion of the fee charged by an
attorney, including costs of investigation, without substantial
hardship to the person or the person’s family.”227 Ohio defines
“marginally indigent” defendants as those with a “total monthly
gross income that is less than 187.5 per cent of the current
federally established poverty levels, pursuant to the ‘Federal
Poverty Guidelines.’”228 In Kansas, a defendant is partially
indigent “if the defendant’s combined household income and
liquid assets are greater than the defendant’s reasonable and
necessary living expenses but less than the sum of the
defendant’s reasonable and necessary living expenses plus the
anticipated cost of private legal representation.”229 Maine does a
similar calculation and then requires a defendant to make
periodic payments based on the amount by which income exceeds
224. OHIO ADMIN. CODE 120-1-03(B).

225. MASS. R. SUP. JUD. CT. 3:10(g).
226. See, e.g., VA. CODE ANN. § 19.2-159(B)(2) (“If the accused shall claim to
be indigent and is not presumptively eligible under the provisions of this
section, then a thorough examination of the financial resources of the accused
shall be made with consideration given to . . . assets of the accused which are
convertible into cash . . . .”).
227. FLA. R. CRIM. P. 3.111(b)(3).
228. OHIO ADMIN. CODE 120-1-03(B) (2013).
229. Kan. Admin. Regulations Pertaining to the State Bd. of Indigent Def.
Servs., supra note 139, at 105-4-5(a).
1212 70 WASH. & LEE L. REV. 1173 (2013)
necessary expenses to reimburse the state for the cost of assigned

counsel.230 Massachusetts categorizes defendants who have an
income greater than 125% but less than 250% of the Federal
Poverty Guidelines as “indigent but able to contribute.”231 Trial
courts in Minnesota determine whether or not a defendant is able
to make “partial payment,”232 while courts in Missouri can
require a “limited cash contribution.”233 Courts in North Carolina
have found that “partially indigent” defendants contribute
whatever they can to the cost of their representation.234
Many states also look at the ability of a defendant to convert
assets into cash. Maine considers the “availability and
convertibility of any assets owned by the defendant.”235 One of the
factors Maryland uses to determine a defendant’s financial ability
to retain counsel is “the nature, extent, and liquidity of assets.”236
New Jersey considers “the liquid assets of the defendant,
including all real and personal property and bank accounts.”237
Virginia considers “all assets of the accused which are convertible
into cash within a reasonable period of time without causing
substantial hardship or jeopardizing the ability of the accused to
maintain home and employment.”238 In a recent decision, the
Massachusetts Supreme Judicial Court ruled that a trial court
should consider a defendant’s retirement funds when determining
if she is eligible for assigned counsel.239
230. Me. Comm’n on Indigent Legal Servs., supra note 142, § (1)(2)(E)
(establishing a process for determining whether a defendant is able to reimburse
the state for the expense of assigned counsel).
231. MASS. R. SUP. JUD. CT. 3:10(g).
232. MINN. STAT. ANN. § 611.20(2) (West 2013).
233. MO. CODE REGS. ANN. tit. 18, § 10-3.010(4)(A) (2013).
234. N.C. GEN. STAT. § 7A-455(a) (2012). See also State v. Boyd, 418 S.E.2d
471, 475−76 (N.C. 1992) (emphasizing that North Carolina law requires
defendants to “contribute whatever they can to the cost of their representation”
and that the state must fund “the remaining necessary expenses of
representation”); State v. Hoffman, 190 S.E.2d 842, 850 (N.C. 1972) (noting that
Section 7A-455(a) demonstrates the “legislative intent that every defendant in a
criminal case, to the limit of his ability to do so, shall pay the cost of his
defense”).
235. ME. R. CRIM. P. 44(b).
236. MD. CODE ANN., CRIM. PROC. § 16-210(c)(3)(i) (West 2012).
237. N.J. STAT. ANN. § 2A:158A-14(c) (West 2013).
238. VA. CODE ANN. § 19.2-159(B)(2) (2012).
239. See Commonwealth v. Mortimer, 971 N.E.2d 283, 290 (Mass. 2012)
The result is that many defendants who are marginally

indigent are required to become indigent before counsel will be
appointed. States refuse to acknowledge that these defendants
are too poor to hire a lawyer and instead have created a new
category of criminal defendants: indigent but able to contribute.
These defendants are required to sell off whatever assets they
own and to empty their savings accounts to offset the cost of
providing them with defense counsel. The end result is that the
states make sure that those defendants who are marginally
indigent at the time they are arrested will be completely destitute
by the time the case ends, even if it ends in a dismissal.
VIII. Economic Self-Sufficiency Means Being Able to Avoid

Substantial Hardship
In defining who is too poor to hire a lawyer, it is necessary to

determine both the cost of legal services and how those costs will
impact a particular defendant. Because a defendant need not be
destitute to be eligible for assigned counsel, the question becomes
at what point does the cost of retaining counsel compromise a
defendant’s ability to maintain, as the Supreme Court said in
Adkins, the “necessities of life”?240 Taking another cue from
Adkins, consideration must be given to how the cost of retaining
counsel will impact a defendant’s ability to be self-sufficient
because “[t]he public would not be profited if relieved of paying
costs of a particular litigation only to have imposed on it the
(concluding that a trial judge may consider retirement funds to be available

funds in indigency determination). Funds contained in the defendant’s
individual retirement account (IRA), minus the amount of preretirement
withdrawal penalties and tax burdens, were available for the defendant’s
defense against murder charges under a rule governing determination of a
defendant’s indigency for purposes of appointment of counsel. Id. The policy of
protecting retirement savings was required to be balanced against the
fundamental constitutional right to be represented by counsel in a criminal
prosecution and the concomitant public obligation to provide counsel for those
who truly cannot afford to be represented in such proceedings. Id. The
defendant, after forfeiting an early withdrawal penalty, could reasonably be
considered to have funds available for his defense. Id.
240. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948).
1214 70 WASH. & LEE L. REV. 1173 (2013)
expense of supporting the person thereby made an object of public

support.”241
The “Self-Sufficiency Standard” created by the Center for
Women’s Welfare (CWW) provides much better criteria for
making indigency determinations.242 The Self-Sufficiency
Standard defines the amount of income necessary to meet basic
needs without public subsidies or private assistance.243 The
Standard was intended initially as a performance measure for the
goal of “self-sufficiency” in federal job training programs, and it is
based on all major budget items faced by working adults:
housing, child care, food, health care, transportation, taxes, and
miscellaneous costs.244 It also calculates the most recent local or
regional costs of each basic need, and it varies costs by age groups
of children. The Self-Sufficiency Standard developed by CWW
provides a realistic measurement of the income requirements for
seventy different family types across each county in a given
state.245
The Self-Sufficiency Standard focuses on the level of
adequate income necessary to meet basic needs and is therefore a
more accurate assessment of eligibility for assigned counsel. If a
defendant’s income is insufficient to meet basic needs, then it is
reasonable to assume that requiring him to hire counsel will
result in a substantial hardship. If a defendant’s income was
below the Self-Sufficiency Standard, he should be considered too
poor to hire an attorney. If a defendant’s income exceeded the
Self-Sufficiency Standard, it would then be necessary to estimate
the actual cost of retaining competent counsel to see if the
defendant was still too poor to hire a lawyer.
241. Id.
242. See The Self-Sufficiency Standard, CTR. FOR WOMEN’S WELFARE,
http://www.selfsufficiencystandard.org/standard.html (last visited Apr. 2, 2013)
(describing the Self-Sufficiency Standard) (on file with the Washington and Lee
Law Review).
243. See id. (defining the Standard).
244. See id. (explaining how the Self-Sufficiency Standard is calculated).
245. See id.
IX. Using the Self Sufficiency Standards to Determine Eligibility

for Assigned Counsel
Eligibility for assigned counsel would be expanded

significantly if the Self-Sufficiency Standard replaced the Federal
Poverty Guidelines. When generating Self-Sufficiency Standards
for individual states, CWW compares the Self-Sufficiency
Standard to other income benchmarks such as the Federal
Poverty Guidelines and the minimum wage.246 CWW published
Self-Sufficiency Standards in 2011 for four states—Colorado,
Maryland, Ohio, and Washington247—that also use the Federal
Poverty Guidelines to determine eligibility for assigned counsel.
Comparing the level of income that qualifies a defendant for
assigned counsel to these other income benchmarks reveals the
extent to which defendants who are too poor to hire a lawyer are
being denied counsel.
Colorado makes defendants who are earning over 175% of the
Federal Poverty Guidelines presumptively ineligible for assigned
counsel.248 Using the Federal Poverty Guidelines from 2011 and
assuming a household composition of one adult, one preschool
child, and one school-aged child, a defendant living in Logan
County, Colorado, would be presumptively ineligible for assigned
counsel if they made more than $32,427.249 However, CWW
estimates the average Self-Sufficiency Wage for Logan County to
be $36,931.250
246. See id. (comparing the Standard to the Federal Poverty Guidelines and
illustrating how the Standard has been used in some states).
247. Find the Self-Sufficiency Standard for Your State, CTR. FOR WOMEN’S
WELFARE, http://www.selfsufficiencystandard.org/pubs.html (last visited Apr. 2,
2013) (on file with the Washington and Lee Law Review).
248. C.J. Directive 04-04: Appointment of State Funded Counsel in Criminal
and Juvenile Delinquency Cases and for Contempt of Court, SUP. CT. OF CO.,
OFFICE OF THE C.J., attachments A, B, & C (July 2011),
http://www.courts.state.co.us/Courts/Supreme_Court/Directives/04-04amended06-
11withAttachmentB revised3-1-12.pdf.
249. See Annual Update of HHS Poverty Guidelines, 76 Fed. Reg. 3637-02
(Jan. 20, 2011) [hereinafter Update of HHS Poverty Guidelines] (placing the
poverty guideline for a three-person household at $18,530). A defendant living
in a three-person household is ineligible for assigned counsel in Colorado if he
makes more than 175% of $18,530, i.e., $32,427.
250. Diana M. Pierce, The Self-Sufficiency Standard for Colorado 2011,
COLO. CTR. ON LAW & POLICY, 11 (Oct. 2011), http://www.selfsufficiencystandard.
1216 70 WASH. & LEE L. REV. 1173 (2013)
To illustrate how the cost of childcare, something the Federal

Poverty Guidelines do not consider, can affect a person’s ability to
be economically self-sufficient and therefore able to retain
counsel, we can compare the Self-Sufficiency Wage of a single
adult to an adult with a preschool child as a dependent. Under
the Federal Poverty Guidelines, a defendant without any
dependents who was living in Denver, Colorado, would be
ineligible for assigned counsel if he made more than $19,057,251
while the Self-Sufficiency Wage in Denver for a single adult was
estimated by CWW to be $19,296.252 A defendant who had to care
for a preschool child would be ineligible for assigned counsel if he
made more than $25,742,253 but CWW estimates his Self-
Sufficiency Wage to be $42,245.254 This type of discrepancy
illustrates the limited value of the Federal Poverty Guidelines
when making eligibility determinations.
Maryland uses the Federal Poverty Guidelines as a factor in
making eligibility determinations for assigned counsel;
defendants who make less than 100% of the Federal Poverty
Guidelines are presumptively eligible.255 In Prince George’s
org/docs/Colorado2011.pdf.
251. See Update of HHS Poverty Guidelines, supra note 249 (placing the
poverty guideline for a one-person household at $10,890). A defendant living
alone with no dependents is ineligible for assigned counsel in Colorado if he
makes more than 175% of $10,890, i.e., $19,057.
252. Pierce, supra note 250, at 66.
poverty guideline for a two-person household at $14,710). A defendant living in
a two-person household is ineligible for assigned counsel in Colorado if he makes
more than 175% of $14,710, i.e., $25,742.
254. Pierce, supra note 250, at 66.
255. See MD. CODE ANN., CRIM. PROC. § 16-210(b) (West 2012) (“For an
individual whose assets and net annual income are less than 100 percent of the
federal poverty guidelines, eligibility for services of the Office may be
determined without an assessment regarding the need of the applicant.”);
id. § 16-210(c) (“For an individual whose assets and net annual income equal or
exceed 100 percent of the federal poverty guidelines, eligibility for the services of
the Office shall be determined by the need of the applicant.”); see also Office of
the Pub. Defender v. State, 993 A.2d. 55, 69 (Md. 2010) (holding that it was
reversible error to only consider the Federal Poverty Guidelines when
determining eligibility).
[W]here the local OPD declines representation to a defendant
erroneously, because of the local OPD’s failure to consider properly
the statutorily-mandated criteria for determining indigency, and
where a court finds, upon its subsequent mandatory independent
County in 2011, the CWW estimates the Self-Sufficiency Wage for

an adult with one preschool child and one school-aged child would
be $60,426.256 The Federal Poverty Guideline for a family of three
in 2011 was only $18,530.257 Even if the Federal Poverty
Guidelines are only one factor of many used in determining
eligibility, the fact that the Self-Sufficiency Wage is more than
three times the Federal Poverty Guidelines calls into question the
relevance of the Federal Poverty Guidelines to any part of the
eligibility determination.
In Ohio, defendants are presumptively ineligible for assigned
counsel if they have an income above 187.5% of the Federal
Poverty Guidelines.258 The CWW calculated the Self-Sufficiency
Standard as a percentage of the Federal Poverty Guidelines for
all eighty-eight of the counties in Ohio.259 There was only one
county, Darke County, where the Self-Sufficiency standard was
below 187.5% of the Federal Poverty Guidelines, and only by
.5%.260
In Washington, a defendant is indigent if he is making less
than 125% of the Federal Poverty Guidelines.261 That would
mean that in 2011, a single defendant could not make more than
$13,612; a defendant who was a single parent with one child
could not make more than $18,387; and a defendant who was a
single parent with two children could not make more than
$23,162.262 The Self-Sufficiency Standard in Spokane County,
review, that the individual qualifies for representation, the trial

court, in carrying out its role as “ultimate protector” of the
Constitutional right to counsel, may appoint an attorney from the
local OPD to represent the indigent individual unless an actual and
unwaived or unwaivable conflict of interest would result thereby.
Id.
256. Diana M. Pearce, The Self-Sufficiency Standard for Maryland 2012,
MD. CMTY. ACTION P’SHIP, 10 (Feb. 2012), http://www.selfsufficiencystandard.
org/docs/Maryland2012.pdf.
poverty guideline for a family of three at $18,530).
258. OHIO ADMIN. CODE 120-1-03(D) (2013).
259. Diana M. Pearce, The Self-Sufficiency Standard for Ohio 2011, OHIO
ASS’N OF CMTY. ACTION AGENCIES, 45−47 (May 2011), http://www.self
sufficiencystandard.org/docs/Ohio%20SSS%202011.pdf.
260. Id. at 45.
261. WASH. REV. CODE ANN. § 10.101.010(3)(c) (West 2013).
262. See Update of HHS Poverty Guidelines, supra note 249.
1218 70 WASH. & LEE L. REV. 1173 (2013)
Washington, in 2011 for a single adult was estimated by CWW to

be $17,082; for an adult with a preschool child it was $34,059;
and for an adult with one preschool child and one school-aged
child it was $41,750.263
Using the Federal Poverty Guidelines to determine eligibility
for assigned counsel ignores economic realities. While it may
make some sense to use guidelines based on the percentage of a
household’s budget spent on food to determine eligibility for
programs such as WIC or TANF, it makes no sense to use those
same guidelines to determine a defendant’s ability to retain legal
counsel.
X. Conclusion
Eligibility for assigned counsel should not be based on

something as arbitrary as the Federal Poverty Guidelines. The
noble ideal that every defendant stands equal before the law can
never be realized if states are permitted to deny counsel to those
too poor to hire a lawyer. Across the country, defendants are
being denied the right to counsel guaranteed to them in Gideon
because of unrealistic eligibility guidelines for the appointment of
counsel. Defendants are then forced to either represent
themselves or to sell off their meager assets in order to hire a
lawyer. States have effectively used the Federal Poverty
Guidelines to redefine what it means to be too poor to hire a
lawyer. A defendant may not be indigent, but he can somehow
still be too poor to hire a lawyer.
It has been said that there is “no war between the
Constitution and common sense.”264 Using an unrealistic
benchmark like the Federal Poverty Guidelines to determine who
qualifies for assigned counsel is not only a violation of the Sixth
Amendment’s right to counsel. It is also bad public policy. It
makes no sense to “save money” by refusing to provide counsel to
a defendant who will then become eligible for public benefits once
he spends the money necessary to hire a lawyer. Criminal
263. Diana M. Pearce, The Self-Sufficiency Standard for Washington State

2011, WORKFORCE DEV. COUNCIL OF SEATTLE-KING CNTY., 47 (Oct. 2011),
http://www.self sufficiencystandard.org/docs/Washington2011.pdf.
264. Mapp v. Ohio, 367 U.S. 643, 657 (1961).
prosecutions will turn the working poor into the unemployed and
destitute. Until states adopt realistic guidelines for determining
eligibility for assigned counsel, justice will come with a price tag
attached to it.

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Washington and Lee Law Review

Volume 70 | Issue 2 Article 11

Too Poor to Hire a Lawyer but Not Indigent: How

Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr

I. Introduction ................................................................... 1174

∗ John P. Gross, Indigent Defense Counsel for the National Association of

Fifty years ago the Supreme Court announced in Gideon v.

1. Gideon v. Wainwright, 372 U.S. 335 (1963).

food in order to meet minimal nutritional needs.8 The use of the

II. Meaningful Access to Justice or Meaningless Ritual

8. Gordon M. Fischer, The Development and History of the Poverty

transmittal of the Federal Criminal Justice Act of 1964 to

In Burns, the Court relied on its earlier holding in Griffin in

27. Burns v. Ohio, 360 U.S. 252, 258 (1959).

errors are hidden, has only the right to a meaningless ritual,

33. Id. at 357–58.

nonindigence for the purpose of purchasing a complete trial

that mere access to the courthouse doors does not by itself

76 (citing Little v. Streater, 452 U.S. 1, 16 (1981) (holding that an indigent

defendant’s lack of financial resources limits his ability to assert

raw materials integral to the building of an effective defense.”); Gideon v.

55. Id. at 142.

accept that defendants, whether they are ultimately convicted or

III. How States Decide Who Is “Too Poor to Hire a Lawyer”

Following the Supreme Court’s decision in Gideon, states

61. Id. at 54.

within the states, was something typically to the discretion of the

could afford. The Supreme Court actually made this same

68. Gideon v. Wainwright, 372 U.S. 335, 344 (1963).

his ability to pay; and (h) the ability of the defendant to

72. N.J. STAT. ANN. § 2A:158A-14(a)–(h) (West 2013).

Indiana,80 Iowa,81 Louisiana,82 Maryland,83 Michigan, 84

Virginia89 all use “substantial hardship” as a factor in eligibility

Ake that in any criminal prosecution a state “must take steps to

97. Ake v. Oklahoma, 470 U.S. 68, 76 (1985).

Wyoming107 all include “other necessary expenses” when making

Eligibility for assigned counsel requires that a state

borrow money when making an indigency determination. Maine

IV. Using the Federal Poverty Guidelines to Determine Eligibility

While the Supreme Court has never set forth specific

the majority of states have turned to a formulaic approach to

127. See Fischer, supra note 8, at 43 (“The Johnson Administration

• Alabama: A person is presumptively eligible for “indigent

131. ALA. CODE § 15-12-1(4)(a) (2012).

• Florida: “An applicant . . . is indigent if the applicant’s

Washington and Lee Law Review).

• Louisiana: A person will be deemed “indigent” who is

141. LA. REV. STAT. ANN. § 15:175(A)(1)(b) (2013).

• Massachusetts: A defendant is indigent if his income, after

court, in carrying out its role as “ultimate protector” of the

the adoption of a standard for determining indigency that

startdown/368 (describing the various methods used in Nevada for determining

than or equal to the Poverty Guidelines established and

157. S.C. CODE ANN. REGS. 602(b)(3) (2013).

circumstances, and where the ends of justice so require,

162. VA. CODE ANN. § 19.2-159(B)(3) (2012).

if they made less than 125% of the Federal Poverty Guidelines,

Nebraska is divided into twelve judicial districts that

person can obtain appointed counsel).

determinations.181 Nevertheless, the Federal Poverty Guidelines

V. Using the “Economy Food Plan” to Determine Who Can Afford

The Federal Poverty Guidelines were developed by Mollie

Department of Agriculture’s “Household Food Consumption