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St. Mary's Law Journal

Abstract

It is appropriate for legal scholars to attempt to identify what the term “indigency” means as a legal standard as it elicits large disparities in connotation, and therefore, in treatment. In fact, there are so many connotations to choose from that different jurisdictions often look upon the word as a flexible standard which is inherently vague. Such vagueness can only lead to abuse by those who do not really need financial assistance. Three main views exist regarding the proper definition of the word. One group of scholars argues that “indigency” standards should be based on actual income, while a second group notes the problems inherent in establishing such a standard which fairly reflect the needs of the entire country. A third undercurrent focuses on the needs of those defendants who are not poor but not rich, noting that a system which only serves the poor will unintentionally create a middle-class poverty of legal services. This diversity of views leads to inconsistency in application. Appellate courts often exchange the word “indigency” with confusing phrases such as “financially unable to employ counsel,” while at the same time remaining particularly sensitive to a trial court’s discretion in applying the term. A review of the case law shows a vague image of what the modern concept of that standard is thought to be. “Indigency” may now include both the hungry and the satiated, the temporarily fund-less and the permanently poor, and even those whose families could afford pay their legal fees but choose not to because the law now makes it potentially unnecessary to do so. If a less connotative alternative to indigency is determined to be unfeasible, then let the present meaning of the word be clarified as something other than destitution or poverty.

Publisher

St. Mary's University School of Law

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