Penalizing Poverty: Making Criminal Defandants Pay For Their Court-Appointed Counsel Through Recoupment and Contribution

Helen A. Anderson

Over thirty years ago the United States Supreme Court upheld an Oregon statute that allowed sentencing courts, with a number of important procedural safeguards, to impose on indigent criminal defendants the obligation to repay the cost of their court appointed attorneys. The practice of ordering recoupment or contribution (application fees or co-pays) of public defender attorney's fees is widespread, although collection rates are unsurprisingly low. Developments since the Court's decision in Fuller v. Oregon show that not only is recoupment not cost-effective, but it too easily becomes an aspect of punishment, rather than legitimate cost-recovery. In a number of jurisdictions, defendants are ordered to repay the cost of their attorney regardless of their ability to pay and without any notice or opportunity to be heard. Many are ordered to pay as a condition of probation or parole, which means they pay under threat of incarceration. In these jurisdictions, recoupment violates the Sixth Amendment, as well as the Due Process and Equal Protection Clauses. Constitutional problems are exacerbated by the potential for ethical violations: public defenders may have conflicts of interest when they are required to both submit bills to the court and object to those bills on behalf of their clients. And too often defendants are not warned at the outset that they may be responsible for attorney's fees or how those fees will be calculated. In any other context, a client is entitled under the ethical rules to a clear statement of the basis for the fee at the time the lawyer is engaged. In addition, the thirty years since Fuller have verified that recoupment is bad policy because it imposes punishing debt without real fiscal benefit. It is time to abandon practices that penalize defendants for being poor and exercising their right to counsel.

A New Era of Tax Enforcement: From 'Big Stick' to Responsive Regulation

Sagit Leviner

This Article explores the economics of crime and compliance as the dominant approach to U.S. tax enforcement of the past three and a half decades. It evaluates the key advantages and disadvantages of the economic model as well as its application to tax. The Article then addresses the multiplicity of taxpayer behavior and the need and prospect of balancing the economically conceived methods of detection and punishment against other, more cooperative, means and developing a broader approach to tax enforcement more generally. The Article explores responsive regulation as a case study for an alternative method to tax enforcement that heavily draws on the economic paradigm but also supplements this approach with other theories, particularly those involving taxpayer identity, conflict escalation, and procedural justice. The Article suggests that this broader, more balanced, and closely tailored method of regulating responsively may enable regulators to draw on the advantages of the economic model while alleviating some of its drawbacks. Responsive regulation may therefore constitute a superior method for regulating tax compliance.

Public Use, Public Choice, and the Urban Growth Machine: Competing Political Economies of Takings Law

Daniel A. Lyons

The Kelo decision has unleashed a tidal wave of legislative reforms ostensibly seeking to control eminent domain abuse. But as a policy matter, it is impossible to determine what limits should be placed upon local government without understanding how cities grow and develop, and how local governments make decisions to shape the communities over which they preside. This Article examines takings through two very different models of urban political economy: public choice theory and the quasi-Marxist Urban Growth Machine model. These models approach takings from diametrically opposite perspectives, and offer differing perspectives at the margin regarding proper and improper condemnations. But surprisingly, both models stand united in opposition to economic development takings and both view skeptically the current wave of eminent domain reform. By discussing why each model comes to this conclusion, this Article sheds additional light upon the substantive limits that legislatures should place upon eminent domain authority and procedural reforms that would help assure proper exercises of that power within this circumscribed scope. The Article also recommends greater cooperation between legislatures and judiciaries to develop these broad standards and to assure that condemnation authorities adhere to them in individual cases.

Risky Ventures: The Impact of IRS Health Care Joint Venture Policy

Roger P. Meyers

IRS oversight of joint ventures between exempt and for-profit organizations has undergone substantial change over the past thirty years. This change has important consequences for the health care industry, where joint ventures have grown increasingly common. In the face of unclear guidance and aggressive enforcement of exemption-policing tools such as the private benefit doctrine and the control test, a hospital risks revocation of its tax-exempt status, or liability for unrelated business income tax, when it engages in a joint venture directly. It may be able to eliminate this risk by operating the same joint venture through a for-profit subsidiary; however, such a structure may be less constrained to serve a charitable mission. Thus, the Service's approach to policing tax-exempt status creates incentives to structure joint ventures in a way that may ultimately reduce charitable care. This Note argues that such incentives are undesirable and avoidable, and proposes several reforms that would help to eliminate them.

Comfortably Numb: Medicalizing (and Mitigating) Pain-and-Suffering Damages

Lars Noah

It has been said, "time heals all wounds." I do not agree. The wounds remain. In time, the mind, protecting its sanity, covers them with scar tissue and the pain lessens. But it is never gone.
—Rose F. Kennedy (1974)