When indigent defendants in Massachusetts are charged with a crime and receive a court-appointed lawyer, they are also charged something else: a fee. This $150 fee is imposed on criminal defendants by the state as soon as they receive a constitutionally guaranteed "free" legal defense. The Article focuses on this inherent contradiction and identifies its far-reaching effects in undermining individuals’ constitutional protections. Massachusetts’s indigent counsel fee "chills" the right to counsel, creating a straightforward result for indigent individuals who are faced with a choice between paying for a "free" lawyer and not disclaiming their constitutional right to one. The deeper problem is that this fee cuts across the presumption that every person is innocent until proven guilty. The Article then argues that the presumption of innocence is violated by obliging individuals to pay, or alternatively perform community service for free, by virtue of the state's decision to bring criminal charges against them. Therefore, being charged with a crime already carries consequences and signals that the defendant is no longer considered fully innocent in a flagrant violation of the premise of a just legal system. There should be no grey area concerning the interpretation of either the presumption of innocence or for constitutional rights. There should be no fee for having been dragged into the criminal justice system by the government's unilateral decision.

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Criminal Law Commons



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