Public defender: Fees for pleas lead to unequal justice

ORLANDO, Fla. (AP) – Criminal defendants in three central Florida counties often face a stark choice, a public defender says: Pay hundreds of dollars in fees that help fund the prosecutors’ office, as a condition of reaching a plea deal, or face trial and risk stiffer punishment.

Now public defender Rex Dimmig says that the practice creates unequal treatment for the criminal justice system’s poorest defendants.

“My office only represents indigent people, and they ought to be entitled to the same punishment for the same offenses as someone who has money,” said Dimmig, public defender for the 10th Judicial Circuit, which covers Polk, Hardee and Highlands counties. “If they can’t pay … they are unable to get the same deal. This violates the principle of equal protection.”

State Attorney Jerry Hill says his office considers a defendant’s ability to pay when making a plea offer, and he says that poor defendants aren’t being treated any differently from other people.

“Nobody is being forced to pay the cost of prosecution,” Hill said. “They can always say no. They’re welcome to go to trial.” He also said his office depends on the fees to supplement state funding.

Florida law says courts can impose “cost of prosecution” fees, set at a minimum of $50 for misdemeanors and $100 for felonies. The money is deposited in a trust fund used to pay for the operations of the State Attorney’s Office. A court can set a higher amount if prosecutors are able to show additional costs.

But Dimmig said the State Attorney’s Office isn’t being required to show proof to support the higher fees. He said he’s seeking a change in the law.

Dimmig’s objections to the fees got attention in Florida criminal defense circles last week when he circulated his account of an exchange about a case to other Florida public defenders.

The negotiations between a prosecutor and the public defender’s office concerned a plea deal for a defendant charged with driving with a suspended license, a third-degree felony. The State Attorney’s Office offered to reduce it to a second-degree misdemeanor in exchange for the defendant paying $400 and participating in a weekend work release program. The defendant worried that back problems would prevent him from working and land him in jail.

The prosecutor countered with an offer for the defendant to pay a $1,000 fine, with no jail time or work release requirement, ostensibly for the cost of prosecution. “Anybody want to wager how much time the SAO (State Attorney’s Office) has actually put into working on this case?” Dimmig asked in an email to his fellow public defenders.

Hill said it was a good case to reach a plea deal since it was a nonviolent felony.

“Anything we can do to offset the burden on the taxpayer, anything we can do to make this a user-funded system, I personally view it as an obligation to do it,” Hill said. “I don’t want the taxpayers paying the judge, the public defender, the prosecutor if we can make the offender, the user pay it.”

The president of the Florida Public Defender Association says the practice seems limited to the 10th Circuit.

“It doesn’t appear that anyone else is undergoing the same kind of problem,” said Julianne Holt, the public defender for the Tampa area.

A 2010 Brennan Center for Justice report faulted Florida’s court system for being over-reliant on fees from defendants. Linking plea agreements to a defendant’s ability to pay fees raises concerns since raising funds may take priority over furthering justice, it said.

At one time, the practice was considered “perfectly taboo,” Hill said, but it has become a necessity since the Legislature doesn’t fully fund his office. The State Attorney’s Office is required to get anywhere from a fifth to a quarter of its salaries from the trust fund.

“Is that good or bad? One can draw their own conclusions,” he said. “But that’s the reality of 2015.”