11.5.3.7 Costs of Prosecution and Indigent Defense Fees

“Costs of prosecution” is a loose term that can include many different amounts chargeable to a defendant, including but not limited to transcripts, depositions, and mileage for witnesses and prosecution staff. When included in the restitution order itself, courts have generally found the costs to be excepted from discharge,³⁰⁹ but when the fees are imposed outside of the restitution order, they are generally dischargeable.³¹⁰

Few courts have directly dealt with indigent defense costs. Courts are split as to whether such costs are dischargeable.³¹¹ The decisions on both sides of the question are sparse on analysis.

The reasoning of the James v. Strange and Fuller v. Oregon cases³¹² suggests that it is a denial of equal protection to find nondischargeable an indigent debtor’s obligation to reimburse the state for court-appointed counsel, while making dischargeable unpaid attorney fees to debtors who can afford to hire a private attorney. The South Dakota Supreme Court, on equal protection grounds as set out in Strange, rejected a sentencing provision imposing probation revocation for attempting bankruptcy discharge of indigent defense fees.³¹³