OKPOLICY.ORG
By Suzy Khimm
Kyle DeWitt was sentenced to three days in jail after he couldn’t afford to pay a fine for catching a fishout of season in Michigan. Nicole Bolden spent a day in a Missouri jail after failing to appear in court for traffic violations she couldn’t pay, either. Now public officials are finally beginning to reconsider the policies that have essentially punished ordinary Americans like DeWitt and Bolden for being poor.
The deep resentment and mistrust of law enforcement in Ferguson stemmed in part from the Missouri town’s heavy use of traffic fines to prop up an ailing municipal budget.
But Ferguson isn’t alone. Court fees and fines have been on the rise nationwide on the state level and in some municipalities as government officials have cobbled together budgets in an era of budget cuts and growing resistance to tax hikes. The housing crisis dealt another blow as depressed property values and lower sales receipts reduced local revenue during the recession.
The types of charges and their enforcement also varies wildly from place to place depending on decisions made by state officials, local city councils, and individual judges who have the discretion to set court fines. As the impact of these schemes has drawn greater attention and controversy, there have been some signs of change as well.
Responding to last month’s protests, the Ferguson City Council is introducing a new ordinance that would cap revenue from court fines to be at 15% or less of total city revenue, with any excess revenue going to “special community projects” instead of the overall budget. Court fines alone made up 21% of the city’s total revenue, according to Governing; in some neighboring towns, it’s nearly 40% of the total.
“The Council believes that this ordinance sends a clear message that the fines imposed as punishment in the municipal court are not to be viewed as a source of revenue for the City,” the Ferguson City Council announced in a statement.
The council says it also wants to abolish a $25 administrative fee for towing abandoned vehicles, a $50 warrant recall fee, and a $15 failure-to-appear notification fee. Finally, Ferguson’s municipal judge has created a special docket for those who are struggling to pay their fines, giving them a chance to negotiate a modified payment plan or alternative sentence to avoid falling into a cycle of debt and punishment.
The changes don’t get at the heart of Ferguson’s fiscal woes, which have largely stemmed from an anemic tax base in a poor town whose property values never recovered from the recession. More fundamentally, the economic and fiscal problems are tied to racist housing policies and faulty urban planning that pushed minorities out to the suburbs.
But similar reforms have cropped up in other states and cities that have ramped up new fees and fines in response to fiscal belt-tightening, charging for public defenders, probation, jail stays, and electronic monitoring, among other things.
A 1983 Supreme Court decision, Bearden v. Georgia, ruled it was unconstitutional to jail people on the basis of their inability to pay court fines. A jail sentence is permissible, however, if an individual has the means to pay but “willfully” refuses to do so. Now a few states are taking new steps to ensure that judges actually determine whether a defendant can afford the fee or fine.
The Michigan Supreme Court launched a working group this summer to develop new guidelines for judges to determine if individuals are actually able to pay court fees and fines. The Michigan court convened the group a few weeks after an NPR investigation highlighted cases like those of DeWitt and Stephen Papa, a homeless Iraq vet from Grand Rapids was jailed for failing to pay court fines he couldn’t afford.
“It’s a good first step to recognize there’s a problem with sentencing individuals essentially to jail because they’re too poor to pay fines and costs,” said Michael Steinberg, legal director of the ACLU of Michigan, which challenged DeWitt’s sentences and four other “pay or stay” sentences in 2011.
The working group aimed to develop guidelines to assess whether individuals truly have the ability to pay a court fine or fee. The guidelines might also pave the way for more generous payment plans, alternatives like community service, and broader opportunities “to contest enforcement based on their inability to pay,” according to John Nevin, a spokesman for the Michigan State Supreme Court.
There have been changes in other states as well. This year, Colorado passed a lawoutlawing “debtors’ prisons,” requiring courts to determine whether defendants have the ability to pay. The Ohio Supreme Court has distributed a reference guide to judges to clarify when it’s permissible to impose a jail sentence for failure to pay a fine or fee as well as a list of alternatives to financial punishment. “They do make a difference simply because some of the laws and procedures are found in obscure places and it would take the judge a lot of research effort to find it,” said Bret Crow, a spokesman for the Ohio Supreme Court.
Such reforms make sense from a fiscal standpoint as well, Steinberg argues. Though tight budgets may have established new fees and encouraged more aggressive enforcement, jailing people who can’t afford to pay them often costs more in the long run.
“Whenever there’s a complaint about lack of funding for the courts, they say just increase the fees, and we saw that happen,” said Steinberg. At the same time, he adds, “sentencing individuals to jail because they’re too poor to pay a fine is absolutely counterproductive from a fiscal standpoint.”
Legal challenges have also drawn attention to some of the more egregious offenders. The Southern Center for Human Rights is currently challenging a Georgia state judge for allegedly collecting an “administrative cost” of $700-$800 per defendant on top of state-authorized surcharges. In a letter to officials requesting that his own salary be raised, Judge William Bass stated that he worked hard “to maximize” the county revenue through his extra efforts, raising $350,000 per year, according to court documents.
The practice prompted Bass to receive a 60-day suspension and a formal reprimand from the state Judicial Qualifications Commission last year. Now a federal judge has greenlit SCHR’s lawsuit representing Roberta Imogene Jones, a plant worker found guilty of a DUI and fined $700 by Bass on top of the statutorily required court fees.
“Grady County has been unjustly enriched at the expense of Ms. Jones and others,” SCHR Senior Attorney Sarah Geraghty said in a statement. “Grady County has no right to this money and should return it.”
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But it will take broader reforms to alleviate the fiscal pressures that have prompted the justice system to lean on court fees and fines as a revenue source in the first place.
In municipalities like Ferguson, that would mean tackling the economic problems that have impoverished the town, its housing stock, and its residents to begin with. On the state level, it could mean legislative action to curtail the use of court fines and fees as a piggy bank.
“Courts, as a core function of government, should be substantially funded by general government revenues,” the Conference of State Court Administrators wrote in a 2011-2012 position paper, arguing for more judicious application of user fees. “Court leaders have a responsibility to ensure that judicial orders are followed, but also to ensure that the system is not overloaded with unreasonable financial obligations to fund other governmental services.”
Some state supreme courts have ruled that court fees and fines are meant to help fund the operation and maintenance of the courts themselves. But in recent years, states have relied on court revenue to go directly into the state’s general revenue fund, as well as victims’ restitution, social services and other social welfare programs. The CSCA warns that the use of fees and fines shouldn’t be a way to circumvent the normal budgeting process or “a taxing vehicle of government for purposes extraneous to the courts,” the group said in a 2013 statement adopted by the American Bar Association.
“What’s needed is for these local governments and state government take responsibility for funding public functions and not slough it off on the poorest people,” said SCHR president Stephen Bright. “They’re not courts—they’re collection agencies.”
The slow but steady recovery should help alleviate some of the pressure on state and local budgets alike as economic activity increases tax revenues and reduces the demand for social services. But even as the economy has improved, court budget cuts have continued in states like Oklahoma, whichcut 7% of the district court budget in Fiscal Year 2014. The courts’ growing ability to rake in money through fees and fines may encourage future cutbacks as well.
“We have collected in last four to five years than in any time in state history through the judicial collection process. The legislature’s response to that is to reduce their general revenue appropriations to us,” said Mike Evans, Oklahoma’s administrative director of the courts. “The public has a right to expect that individuals who can afford to pay are held accountable for the payments.”
Praised in Gov. Mary Fallin’s budget for attaining “the highest court fund collections possible,” some judges urged greater momentum for revenue collection in recent months. This summer, district Judge Mike Norman issued a directive ordering the collection of a $1,000 fine in all felony cases, though he later rescinded the order. Another judge plans to impose $1,000 fines for DUI cases, according to the Tulsa World.
As revenue from courts has increased, Oklahoma has simultaneously reduced revenue from income taxes, passing a tax cut this year that will reduce tax revenue by $200 million a year by 2018. “It does stem from the legislature wanting the court to become self-sufficient so they don’t have to fund the courts,” said Joe Robertson, executive director of the Oklahoma Indigent Defense System. It’s a regressive tax—a tax against poor people.”
And even if aggressive enforcement lets up in better fiscal times, the court fine and fee schedule isn’t likely to change in places that haven’t undergone the kind of scrutiny that Ferguson has received.
“Once they’re in place, it is hard to remove them,” says David Blatt of the Oklahoma Policy Institute. In his state, at least, “the attitude tends to be punitive, and you’re not going to cry for people entangled in the criminal justice system.”
http://www.msnbc.com/msnbc/will-the-government-stop-using-the-poor-piggy-bank
