County collections of public defense fees designated for the state of Indiana are far below expectations, even as expenditures for the constitutionally mandated service hit record highs.

Hoosiers who’ve been accused of crimes but can’t afford private counsel have the right to public defense under the U.S. and Indiana constitutions. It’s not cheap.

Counties charge defendants fees to help cover defense costs. Until 2024, they collected $100 in felony cases and $50 in misdemeanor cases from those who could afford to contribute to their own defense.

Indiana lawmakers doubled the fees that year — with the additional amount required to go to the state’s public defense fund, in line with Senate Enrolled Act 179.

But two years into the legal change, officials with the Commission on Court Appointed Attorneys report that compliance runs the gamut amid clerical and assessment errors.

Executive Director Derrick Mason said he’s “sounding the alarm” now to “avoid a crisis in funding that other states have encountered” — on top of Indiana’s shortage of public defenders and other attorneys.

Mason’s agency taps the public defense fund to reimburse member counties for 50% of public defense expenses in capital cases and 40% for work in non-capital felony cases. In exchange for the money, those counties agree to agency-set standards on training, caseloads, pay and more.

Annual reimbursements to counties have doubled in the last decade, according to commission data.

Enter the fee increase, which Mason attributed to the law’s author, Sen. Eric Koch, R-Bedford.

“The concept was: well, the defendants aren’t paying anything toward the state’s 40% reimbursement,” Mason said. The idea that they should contribute generated mixed feedback within the public defender community, but the commission’s board ultimately voted to support the idea.

Judges have discretion to decide who and what amount of the fee to assess depending on a defendant’s circumstances.

Less than $400,000 worth of fees came to the state in 2025, according to the Office of Judicial Administration — with fees collected and assessed in just 8.4% of cases statewide.

Twenty-four counties transmitted no money to the state’s public defense fund last year, while another dozen sent over less than $500 apiece, according to a commission map.

Other counties passed along thousands of dollars. The top five counties with the highest rate of collections — Benton, Gibson, Hendricks, Martin, and Union counties — averaged a nearly 43% rate.

Mason estimates that if the state average rose that high, the public defender fund could take in $2.9 million in fees annually. But first, there are problems to fix.

While the commission is still investigating, Mason said two main drivers have been identified so far.

“No. 1 is that the clerks are not entering the court’s orders correctly,” he said. “They’re entering them in the way that they always were entered before, where all of the assessments go directly to the county public defender fund. …. Half the higher amount now is supposed to be going to the (state).”

The organization representing Indiana county clerks did not respond by publication time to a request for comment on potential errors and fixes.

A second factor, Mason said, is the broad spectrum of approaches courts take to assessing the fees.

“Our goal is not to go and tell a court, you know, statutory interpretation or how to find … whether or not they can afford $100 or $200 or establish that,” he said. “Our goal is just to make sure the courts are aware of the statute, that it is a “shall” (requirement) unless that person cannot afford that.”

But Mason isn’t shaking counties down for the money.

“Some counties have gone back and actually fixed their process, and were able to correct those orders,” he said. “I have let the counties make the determination about whether they are able to even do that. Not every county has the capacity … Our goal is to get this corrected going forward.”

Indiana Capital Chronicle is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Indiana Capital Chronicle maintains editorial independence. Contact Editor Niki Kelly for questions: info@indianacapitalchronicle.com.