In Gideon v. Wainwright, the United States Supreme Court unanimously held that the Sixth and Fourteenth Amendments to the United States Constitution guarantee a right to legal counsel for criminal defendants who cannot afford to hire counsel. The right to counsel has been expanded by subsequent case law and by statute to other types of cases, for example when the government takes action to terminate parental rights or to involuntarily commit someone to a psychiatric institution.
A court must determine whether someone is indigent before appointing a lawyer for them.
In North Carolina, NC G.S. 7A-450(a) provides the basic definition of indigency: “Indigency; definition; entitlement; determination; change of status. (a) 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.” Click HERE to read more.
There is no bright line indigency test for the court to follow. Some people can afford counsel for a low-level charge but cannot afford to hire a lawyer for a more complicated and serious charge. Some people have well-paying jobs but also have extraordinary ongoing expenses related to medical issues or a disabled dependent. The court must assess each individual’s circumstances.
John Rubin & Julie Lewis, NC Defender Manual, vol. 2 (Trial) § 12.5D offers this summary:
Definition. G.S. 7A-450(a) provides the basic definition of indigency: “An indigent person is a person who is financially unable to secure legal representation and to provide all other necessary expenses of representation . . . .” See also IDS Rule 1.4 (discussing standard and procedure for determining indigency). (p. 5)
For most cases, the defendant must be indigent to obtain counsel at state expense. See G.S. 7A-450. In limited instances, indigency is not required. See G.S. 7B-2000 (juvenile in delinquency case presumed indigent); G.S. 35A-1107 (attorney is appointed as guardian ad litem in incompetency proceeding unless respondent retains counsel); IDS Rule 4.2 (no requirement that court determine indigency for inmates in custody of Department of Adult Correction and entitled to legal representation to ensure access to courts). NC Defender Manual Vol. 1, Pretrial (2d ed. 2013)
The standard for indigency is necessarily a flexible one, depending not only on the defendant’s resources but also on the anticipated expenses of litigation. There are only a few decisions addressing the standard, and the specific dollar amounts cited in older cases may not be particularly useful as a guide today. See State v. Cradle, 281 N.C. 198 (1972) (trial court erred in finding that defendant was not indigent when there was no record evidence contradicting her affidavit of indigency); State v. Wright, 281 N.C. 38 (1972) (defendant who earned $149 per month, had car payments of $56 per month, had debts of $4,000, and had savings of approximately $50, was indigent); State v. Haire, 19 N.C. App. 89 (1973) (evidence that defendant was a painter capable of earning $60 per week when he was able to obtain work, and that he had made little effort to secure counsel, did not support finding that defendant was not indigent); see also G.S. 7A-498.5(c)(8) (authorizing IDS to adopt standards for determining indigency).