I had occasion to hear the second reading debate in the Colorado House of Representatives about a proposal to extend Colorado's "Make My Day Law", which broadens the circumstances where it is legal to use deadly force in your own home, to motel rooms and vehicles.
The actual law was a bad idea, although from the debate, it seemed that few people in favor of the law could recall what they were proposing (e.g. posing examples of people in their home facing a burglar that weren't impacted by the law).
But, this wasn't the interesting part of the debate. The interesting point was to hear so many Republicans go on at length about how horrible it was that someone who had a defense to the crime (in this case, self-defense), for which there was clear probable cause, would have to pay an attorney a five or six figure fee prior to be acquitted at trial. The proposed legislation didn't necessarily end this risk, but their concern should be much more general. Why should anyone who is ultimately not convicted of a crime be forced to pay his own attorneys fees, as is required under current law, when we claim to presume innocence?
Any criminal case is expensive to defend against, and in the case of an acquittal, the state, under existing law basically tells a defendant that it is his tough luck that he had to pay an attorney to defend him and spend however long in pretrial detention if he was unable to make bond.
It isn't as if there are a huge flood of acquittals out there. There were 711 felony trials in Colorado in 2005 (20 to a judge, 691 to a jury). There were 882 misdmeanor trial in Colorado in 2005 (321 to a judge, 561 to a jury). And, there were traffic and ordinance trials on top of those.
About 70% of criminal trials produce convictions, and the conviction rates are not materially different in cases where a public defender is assigned from cases with private lawyers (popular belief to the contrary notwithstanding). Thus, there were only about 214 acquittals in Colorado in felony cases in 2005. Moreover, about 80% of defendants in criminal trials were represented by the public defender. Thus, there were only about 43 felony acquittals at trial with private counsel in 2005 (out of 45,405 felony cases), and using a similar analysis only about 50 misdemeanor acquittals at trial with private counsel in 2005 (out of 72,608 misdemeanor cases).
If a statute provided compensation in lieu of actual attorneys fees of $30,000 for not convicted felony defendants (treating a hung jury as an acquittal) and $5,000 for not convicted misdemeanor defendants, it would cost about $1,540,000 a year to compensate acquitted criminal defendants in felony and misdemeanor cases statewide for a reasonable amount towards their attorneys fee expense. Thus, this would add about $4 to the cost of prosecuting each misdemeanor case and about $30 to the cost of prosecuting each felony case in the state. But, this is a small price to pay to give the presumption of innocence real economic meaning. Yet, to my knowledge, it isn't the way it is done in Colorado, although apparently a few states do allow for this kind of compensation.
Perhaps, if such a law is proposed, the proponents can read from the legislative history today on the floor of the House to Republican opponents of the bill.