Paying for Your Own Rights: Constitutional Fees (Counsel and Jury Fees)

The Virginia Constitution guarantees that everyone accused of a crime has the right to a fair day in court, regardless of how much money you have. That includes the right to a lawyer, even if you cannot afford one, and the right to ask for a jury of your peers.

But in Virginia, exercising either of those rights can come with a cost. 

Those costs are part of Virginia’s broader system of court fines and fees. A fine is punishment — it is the penalty a judge orders for the offense itself. A fee is different. Fees are add-on charges used to shift some of the costs of the legal system onto people who go through the courts, on top of whatever sentence a person receives. 

Two of these charges are sometimes called constitutional fees because people can be charged for using rights the Constitution guarantees: counsel fees, for a lawyer provided by the court, and jury fees, for choosing a jury trial.

Counsel fees: charged for the lawyer you proved you couldn’t afford

The Constitution says that if someone is facing jail time and cannot afford a lawyer, the state has to provide one. In many parts of Virginia, the lawyer provided is a public defender. However, not all localities have a public defender office, and in that case, the court appoints and pays for a private attorney. Either way, if the person is convicted, Virginia can bill them for that lawyer.

Getting an appointed lawyer is not automatic. First, a person has to prove they are indigent, the legal term for not having the financial means to hire their own attorney. They fill out a financial statement under oath, laying out their income, what they own, and who they support. A judge then decides whether they qualify. Generally, a person qualifies when the money available to them after certain expenses is no more than 125% of the federal poverty level. Under the 2026 guidelines, that’s about $19,950 a year for one person or $41,250 for a family of four.

If the person is convicted, the court bills them for their lawyer. The law sets the amounts based on the charge, so a person convicted on several counts can be billed for each one. Virginia increased how much appointed attorneys are paid in 2024, but kept what their clients owe at the older, lower amounts: $120 for a misdemeanor in district court, $158 in circuit court, $445 for most felonies, and up to $1,235 for felonies punishable by 20 years or more.

For people who receive these bills, the charge often comes as a surprise. A 2023 Legal Aid Justice Center report on counsel fees documented the experiences of people in Virginia who had been charged for court-appointed attorneys. 

Hassan Shabazz spent more than 23 years in Virginia prisons and came home with over $4,000 in fines and fees. While incarcerated, he had worked to pay down that debt while earning a prison wage of just 45 cents an hour. Of his fines and fees, about $650 were counsel fees. Shabazz said he didn’t learn he would be charged for his attorney until after his appeal was decided. “How do you charge someone for their attorney when they were too poor to afford one?” said Shabazz.

For Shakil Ali, counsel fees were part of more than $3,000 in court debt waiting for him when he came home from prison in 2018. About a third of the debt was for the court-appointed lawyer. In an interview with VPM, he described the debt as a threat to his freedom. Despite making monthly payments and complying with his probation, the remaining debt still brought him back before a judge and put him at risk of returning to jail.

Courts have said charging for appointed counsel is legal. But every person who gets this bill has already proven they could not afford a lawyer, and a judge agreed. The state accepted that they could not pay for an attorney. Then it billed them for one anyway.

Jury fees: the price of asking for a trial

A jury trial is a constitutional right. But in Virginia, a person who chooses a jury trial and is convicted, is charged a fee. A person can be charged for all potential jurors that serve on a jury panel, regardless of if they are seated. 

Virginia law seats 12 jurors for a felony trial and seven for a misdemeanor trial. Those jurors are chosen from a panel of at least 20 people for a felony and 13 for a misdemeanor. Every juror summoned is paid $50 for each day they attend, whether they end up on the jury or not. That puts the first day of trial at $1,000 for a felony and $650 for a misdemeanor, at a minimum. Every additional day adds more to the bill. Judges decide how many people to summon beyond the minimum and whether the person on trial is charged for the full pool of jurors, the panel, or those who were seated. Court staff contacted about these practices generally gave the same answer: people are typically charged the full pool, plus any alternates.

In practice, jury pools run much larger than the minimums. In Virginia Beach, a felony trial starts with about 35 potential jurors and a misdemeanor trial with about 25, before any alternates. In Sussex County, a clerk estimated the first-day pool at around 40 people, roughly $2,000 before the trial even begins. In Cumberland County, some criminal cases can draw 50 to 75 potential jurors, putting the first-day cost between $2,500 and $3,750. 

Virginia does not treat everyone who wants a jury this way. In a civil case, a lawsuit over money, the jurors are paid by the local government where the case is filed, and nobody sends the party who asked for the jury a bill. In a criminal case, the Commonwealth pays the jurors up front, and then, if the person is convicted, the court charges those costs back to them.

The law carves out only one group: people who give up their right to a jury at least 10 days before trial but the prosecutor or the judge requires a jury trial anyway. They are not billed for the jury. A Virginia Beach clerk noted that a fee waiver exists, but few people appear to know about it or get approved.

A person weighing whether to take a plea deal or ask a jury to decide their case is also weighing a bill, and they may not know the price until it is too late to choose differently. People in Virginia who have experienced these fees have described not knowing what having a jury decide their case could ultimately cost. No one had explained it to them.

These are policy choices, and other states are choosing differently

These fees are not inevitable. They exist because Virginia chose them, and other states are choosing differently. 

In 2026, Arizona passed a bipartisan law ending fees for court-appointed counsel, jury trials, and appeals. California repealed its public defender fee in 2020, canceling not just future charges but the debt people already carried. The California law that charges jury fees applies only to civil lawsuits, not criminal cases. Florida treats jury costs as an operating expense of the court system rather than a charge against the person on trial: jurors are paid with funds from filing fees, service charges, court costs, and fines. 

In those states, juries and public defense are treated as part of the cost of running a court system, like the courtroom and the judge. In Virginia, some of those costs are passed to the person on trial. And those charges do not translate into reliable funding. Virginia imposes far more in court-appointed counsel fees than it collects each year, in part because many of the people charged have already been found unable to afford an attorney. Courts are a core public service, and states can choose to fund them through stable public dollars instead.

Virginia has come close to changing these practices. In the 2026 legislative session, the House passed House Bill 852 (Del. Cousins), which would have ended jury costs entirely and ended the fee charged to people represented by a public defender. The Senate chose not to advance the bill.  Part of the effort continued through the state budget. A workgroup was created to study how fines and fees are assessed and collected across Virginia. The Commonwealth Institute is one of the organizations participating in that workgroup, with its first findings due November 2026. Because courts, collection agents, and state agencies each code this money differently, it is hard to see what these fees total, what share is collected, or where the money lands. The workgroup was created to untangle that.

What ending these fees would change

A right you have to pay for is not fully a right. When the state bills people for the lawyer they were entitled to or for asking a jury to decide their case, it puts a price on protections the Constitution promises to everyone — and hands that bill to the people with the least ability to pay it. Virginia can end counsel and jury fees. Other states already have. Doing so would mean that a person leaving court owes nothing for the lawyer they qualified for because they could not afford one. It would mean more people could return home and start over without court debt waiting for them. It would also mean that how much money a person has no longer determines which constitutional rights they can afford to use.