It's All About the Money, Money, Money: Criminalizing Poverty
Nusrat J. Choudhury, ACLU, New York City, NY Lisa Foster, U.S. Department of Justice Office for Access to Justice, Washington, DC Anne Geraghty Helms, DLA Piper, Chicago, IL Danielle Elyce Hirsch, Administrative Office of the Illinois Courts, Chicago, IL Alec Karakatsanis, Equal Justice Under Law, Washington, DC
There has been an increase of local governments instituting court costs, fines and fees for minor offenses which have a devastating effect on the poor. The inability to pay has resulted in the jailing of children and adults as well as the implementation of further debt through allowing the accrual of interest while in prison. This program will focus on ways that lawyers can address this problem on both an individual and systematic level.
President’s Message || By Paulette Brown Justice for All … Who Can A ord It Use of excessive fees, fi nes and bail results in unequal access to justice for the poor
What is the price of justice? arrested low-income residents America is supposed to for failure to appear or make adhere to the principle of payments, and used unlaw- “equal justice under law,” a ful bail practices, resulting in concept dating back to ancient unnecessary incarceration. Greece and embedded in The report referenced the our society through the 14th case of a 67-year-old woman Amendment. The phrase is who received two tra c tickets so important to our legal sys- in 2007 totaling $152. After tem it is engraved on the U.S. more than eight years of fi nes Supreme Court building. and penalties—including two But today, in far too many arrests and six days in jail— instances, an individual’s she had paid the city $550 and access to equal justice is based owed $541 more. less on principle and more on ability to pay. Financial penal- Ferguson is not an anom- ties—fees, fi nes and bail—have aly. Across the country, nearly rendered justice unjust. two thirds of all inmates in Fees and fi nes that ignore a county jails are awaiting trial defendant’s ability to pay place at a taxpayer cost of $9 billion. an unfair burden on people of After release on bail or proba- lesser means. Minor infrac- tion, many must pay private tions can result in fees that companies to monitor them. spiral into thousands of dol- In South Carolina, a defen- lars, and contribute to the dant has to pay almost $300 a United States incarcerating month for an ankle-monitor- more individuals than any developed country. Bail set ing bracelet or return to jail. without consideration of fi nancial circumstances results The o ce of the public defender was formed to assist in the detention of the poorest, rather than most danger- individuals unable to a ord a private lawyer. Yet in too ous or highest fl ight risks as intended. many instances, indigent defendants are required to pay a fee to utilize a public defender, placing the promises of In December, I attended a White House meeting Gideon v. Wainwright in a precarious position. titled “A Cycle of Incarceration: Prison, Debt and Bail But there are alternatives. In Newark, New Jersey, Practices.” A bipartisan, eclectic group of academics Judge Victoria F. Pratt presides over Municipal Court and stakeholders were gathered to discuss the issue and Part Two and uses procedural justice rather than incar- develop an agenda for change. U.S. Attorney General ceration. She routinely orders individuals to write essays Loretta Lynch spoke at the meeting about “the criminal- to examine why they committed an infraction and how ization of poverty” where a person’s fi nancial standing, they can change their lives. not actions or deeds, determines justice. She explained Judge Alex Calabrese at the Red Hook Community how this situation breeds mistrust and erodes faith in Justice Center in Brooklyn, New York, concentrates on our government and law enforcement. the underlying problem of a defendant’s behavior and Former Attorney General Robert F. Kennedy said in crafts solutions such as service to repay the commu- 1962, “If justice is priced in the marketplace, individual nity. These courts focus on fairness. Defendants respond liberty will be curtailed and respect for law diminished.” when treated with dignity. These courts save money, We are seeing this respect diminished throughout our reduce pretrial incarcerations—which can average country. One such place, Ferguson, Mo., was the subject $19,000 per case—and improve recidivism rates. of a U.S. Department of Justice investigation. John Jay, the fi rst Chief Justice of the United States, In March 2015 the Justice Department’s Civil Rights said, “Justice is indiscriminately due to all, without Division released its report on the Ferguson Police regard to numbers, wealth or rank.” To live up to these Department and found that the city focused its munici- words, courts need to save money through innovation pal court operations on revenue generation, not public rather than extracting it from poor defendants. Only safety. It routinely imposed excessive fi nes, then can justice truly be equal for all. ■
Follow President Brown on Twitter @Brown4Lawyers. PHOTOGRAPH BY MARC HAUSER
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COURT SYSTEMS RETHINK THE USE OF FINANCIALFINANCIAL BAIL, WHICH SOMESOME SAY PENALIZES THE POORPOOR AND LEADS TO LOLONG-NG- TERM INCARCERATIONINCARCERATION BAILÕS BY LORELEI LAIRD
PHOTOGRAPHY BY DAVID HILLS hannan Wise of Baltimore Shad never been arrested before. A single mother of two, she was busy juggling her family, her job as a driver for a privprivateate van service, seasonal work at Target and going to schoschoolol to become a medical biller.
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“SOMEONE AS DESERVING AS SHANNAN ... SHOULD HAVE GOTTEN OUT A LOT SOONER AND SHOULDN’T HAVE HAD TO PAY THAT EXPENSE TO A BAIL BONDSMAN, But on Oct. 24 of last year, Wise, her—the judge believed Wise was 26, had a fi ght with her younger sis- dangerous. SOMETHING SHE WILL ter, who has mental disabilities. The Wise didn’t have that kind of next day, Wise dropped off her kids, money. Her family scraped together ages 2 and 5, at day care and school. a down payment to a bail bond NEVER BE ABLE TO GET When she got home, she found the company, but it took fi ve days. police waiting with a warrant for During that time, her kids had to BACK.” her arrest. Her sister had fi led a be shuttled between their father false police report against her for and another of her sisters. assault. Worse yet, Wise missed work and —ZINA MAKAR A judge set bail at $35,000, fell behind on bills. The Maryland which was increased to $100,000 Public Service Commission, which at a bail review hearing because— regulates her driving job, sent based on the allegations against her two scary letters requesting
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information on the outcome of her 14th Amendment’s equal protection charges. Her grades suff ered, and clause but also constitutes bad pub- she had to postpone an externship “I’VE BEEN DOING lic policy,” the department wrote, in medical billing—a step toward intervening in a lawsuit fi led by the her planned career—because it THINGS TO KEEP nonprofi t Equal Justice Under Law. confl icted with a court date. Advocates for the poor have long Zina Makar, Wise’s public argued that fi nancial bond is neither defender, was ultimately able MYSELF OUT OF fair nor safe. By conditioning free- to get the charges dismissed. But dom on the ability to pay, they say, that didn’t happen until Jan. 8 TROUBLE NO MATTER bail systems needlessly imprison —the fi rst day a court gave Wise’s poor defendants who pose no threat. case meaningful review since a WHAT, AND I ENDED Meanwhile, wealthy people go free Nov. 19 postponement. If Wise regardless of what danger they hadn’t been bailed out, she could might pose. Fifty years ago, those have been in jail for more than two UP IN A REAL BAD arguments led Congress to pass months. As it was, fi ve days were the Bail Reform Act of 1966, which enough to set her back. SITUATION THAT eliminated fi nancial bond for most “While fi ve days may sound very federal defendants. But over the short, ... you can see just being held COULD HAVE ENDED next few decades, the issue fell out for fi ve days has grave consequences of the public eye. on Ms. Wise’s life and her ability to Now, the issue is once again being care for her kids, her education— EVEN WORSE THAN discussed, fueled by increasing a lot of things that she was looking bipartisan agreement and interest forward to,” Makar says. “Someone WHAT IT WAS.” from the DOJ. This time, local juris- as deserving as Shannan ... should dictions are exploring—voluntarily have gotten out a lot sooner and or otherwise—alternatives to fi nan- shouldn’t have had to pay that —SHANNAN—SHANNAN WISEWISE cial bail. expense to a bail bondsman, “These things are happening something she will never be all around the country for various able to get back.” reasons,” says Arthur Pepin, direc- Wise says it was stressful. “It tor of New Mexico’s Administrative just put a lot of strain on me, a Offi ce of the Courts and the author lot of strain on bills, when it was of a 2012 paper on evidence-based already a trying time,” she says. pretrial release. “Some as a result “I’ve been doing things to keep of litigation,” he says, “some as myself out of trouble no matter a result of folks just thinking we what, and I ended up in a real bad should do a better job on this.” situation that could have ended even worse than what it was.” PriCe Of freedOM Financial bond—technically, refOrM MOveMeNt “bail” refers to all conditions of Stories like Wise’s illustrate why The state’s chief judge, Jonathan release—is widespread and routine court systems are rethinking the use Lippman, announced in October in state and local jurisdictions. of fi nancial bail. Concerned about that New York would encourage Most use either a judge’s discretion the chain of negative eff ects bail can judges to use alternatives to fi nan- or a bail schedule—a long list of have on people of modest means, as cial bond. In Texas, Chief Justice charges corresponding to set prices, well as its contribution to jail over- Nathan Hecht formed a committee based on the severity of the crime. crowding and costs, jurisdictions in June to study whether fi nancial So usually, pretrial freedom comes around the nation are reforming bond can be replaced with an evi- at a literal price. bail. In 2013, Kentucky was among dence-based screening process. “Most of the country is doing it in the earliest to adopt a pretrial sys- Even the U.S. Department an old-fashioned, nonscientifi c way,” tem replacing cash bond with risk of Justice has come out strongly says Cherise Fanno Burdeen, execu- assessments and pretrial supervi- against the use of fi nancial bail. tive director of the Pretrial Justice sion. In 2014, New Jersey voters Last year, the department inter- Institute in Gaithersburg, Maryland, agreed to a similar system. vened in a little-noticed lawsuit and co-chair of the ABA Criminal Last summer, New York City challenging bail practices in Justice Section’s Pretrial Justice announced it was replacing money Clanton, Alabama. “It is the position Committee. bond for low-risk defendants with of the United States that [fi nancial Critics see two major problems text reminders to appear in court bond, set] without any regard for with fi nancial bond. One is about and counseling as appropriate. indigence, not only violates the the potential public safety threat
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created by letting wealthier Research has also found that pre- grew by 19.8 percent between people go free even if they could trial detention—a practice intended 2000 and 2014; pretrial detain- be dangerous. That’s why law to protect public safety—can actu- ees accounted for 95 percent of that enforcement offi cers don’t like ally lead to more crime. One 2013 growth. In mid-2014, the depart- fi nancial bond, according to Alec study by the Laura and John Arnold ment says, 60 percent of those held Karakatsanis, a co-founder of Foundation, a nonprofi t that funds in local jails were pretrial detainees. Equal Justice Under Law and research into social problems, found And that’s expensive. In Phila- one of Burdeen’s co-chairs on the a strong correlation between length delphia, the cost of incarceration in CJS Pretrial Justice Committee. of pretrial detention and likelihood the city’s jail system is $110 to $120 Then there’s the opposite problem of committing more crimes. The per inmate per day. A 2015 Vera —locking up people who can’t pay, researchers suggested that as de- Institute of Justice report noted even if they’re not a threat. There’s tention increases, “the defendant’s that Bernalillo County, New Mexico, evidence that may be a civil rights place in the community becomes where Albuquerque is located, violation. In a 1978 bail case, Pugh more destabilized,” which increases spends $85.63 per inmate per day. v. Rainwater, the 5th U.S. Circuit the risk of recidivism. Johnson County, Kansas, where Court of Appeals at New Orleans Another 2013 study by the foun- fewer people are incarcerated, foundfound thatthat withoutwithout “meaningful“meaningful dation determined that those held repreportedorted sspendingpending $$191.95191.95 pperer considerationconsideration ofof otherother possiblepossible alter-alter- in pretrial detention were more inminmateate pperer dday.ay. natives,”natives,” jailingjailing peoplepeople becausebecause theythey likely to receive prison sentences. All ooff tthishis wwillill bbee ppartart ooff tthehe cannotcannot affaff ordord bailbail vviolatesiolates theirtheir duedue The reason: Juries tend to believe pitpitchch iiff BBurdeenurdeen aandnd KKarakatsanis,arakatsanis, processprocess andand equalequal protectionprotection rights.rights. that defendants in prison uniforms as cco-chairso-chairs ooff tthehe PPretrialretrial JJusticeustice The U.S.U.S. SupremeSupreme CourtCourt decideddecided inin are guilty, and prosecutors have ComCommittee,mittee, iintroducentroduce a rresolutionesolution 1983’s BeaBeardenrden vv.. greater leverage in making plea in tthehe AABA’sBA’s HHouseouse ooff DDelegateselegates Georgia, a ccasease deals with defendants who are calcallingling fforor tthehe aabolitionbolition ooff aallll aboutabout paymentpayment jaijailed,led, aaccordingccording ttoo ootherther rresearch.esearch. monmoney-basedey-based ppretrialretrial ddetention.etention. of fi nes,en s, tthathat Detaining those who can’t aff ord The rresolution,esolution, pplannedlanned fforor tthehe the 14th bail also strains jail systems. 20120166 aannualnnual mmeetingeeting tthishis AAugust,ugust, Amendment The Department of Justice wouwouldld aalsolso ccallall fforor tthehe eeliminationlimination forbidsforbids ““pun-pun- estestimatesimates tthathat llocalocal jjailail ppop-op- of pprivate,rivate, ffee-basedee-based ppretrialretrial sserviceservices ishingishing a personperson ulaulationstions —a rrelatedelated ppracticeractice tthat’shat’s aalsolso bbeeneen for hishis poverty.”poverty.” the ffocusocus ooff rrecentecent llitigation.itigation. ImprisonmentImprisonment has far-reachingfar-reaching JAiL ALterNAtives eff ectsects oonn tthehe d defen-efen- In mmakingaking tthathat ccase,ase, ttheyhey dant’sdant’s llife,ife, aass WWiseise can ppointoint ttoo a wwell-establishedell-established discovered.discovered. WWorriedorried altalternative:ernative: ppretrialretrial rriskisk aassessment,ssessment, aboutabout ttheirheir families,families, folfollowedlowed bbyy ppretrialretrial sserviceservices tthathat jobs,jobs, fi nancesnances aandnd ensensureure ddefendantsefendants sshowhow uupp ttoo more,more, somesome defen-defen- coucourt.rt. TThat’shat’s tthehe ssystemystem iinn uusese dantsdants choosechoose toto pleadplead by tthehe ffederalederal ccourtsourts ssinceince tthehe guiltyguilty eveneven wwhenhen ttheyhey 1961960s.0s. aren’t—despitearen’t—despite thethe RisRiskk aassessmentssessment iincludesncludes well-knownwell-known sstigmastigmas a seriesseries ofof questionsquestions basedbased of a conviction.conviction. on researchresearch intointo whywhy peo-peo- ChesaChesa Boudin,Boudin, a dep-dep- ple failfail toto appear.appear. TheThe ques-ques- uty publicpublic defenderdefender inin tionstions typicallytypically examineexamine thethe San Francisco,Francisco, encoun-encoun- defendant’sdefendant’s criminalcriminal history,history, tersters thisthis routinely.routinely. “What“What currentcurrent chargecharge andand personalpersonal we seesee literallyliterally everyevery ddayay circumstances.circumstances. TheThe federalfederal is judgesjudges andand prosecutorsprosecutors questionnaire,questionnaire, forfor instance,instance, off er oourur cclientslients ‘‘creditcredit fforor asksasks aboutabout thethe seriousnessseriousness timetime served’served’ pleaplea deals,”deals,” BoudinBoudin of thethe defendant’sdefendant’s charges,charges, says.says. “If“If youyou pleadplead guilty,guilty, youyou getget Shannan Wise whetherwhether hehe oror sheshe hashas failedfailed out ofof jailjail today.today. IfIf yyouou aassertssert youryour relied on relatives to to appearappear inin thethe past,past, home-home- care for her children innocence,innocence, you’reyou’re stayingstaying inin jail.jail. ToTo ownershipownership andand employmentemployment while she was jailed see thatthat sortsort ofof coercivecoercive pressurepressure for fi ve days. status,status, andand anyany strongstrong tiesties exertedexerted onon peoplepeople toto waivewaive theirtheir to a foreignforeign country.country. constitutionalconstitutional rightsrights becausebecause they’rethey’re Judges consider the too poorpoor ttoo ppayay forfor theirtheir freedomfreedom answersanswers whenwhen makingmaking pre-pre- is unbelievablyunbelievably frustrating.”frustrating.” trialtrial releaserelease decisions.decisions. IfIf thethe
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off ender is deemed dangerous or stand to lose money or property, an similar meeting convened in 1964 likely to fl ee, the system typically incentive to prevent the defendant by Robert Kennedy, who pushed requires a preventive detention from fl eeing. hard for the 1966 Bail Reform Act. hearing. Those released get pretrial It’s also eff ective, Clayton says. He The DOJ did not respond to supervision—regular check-ins cites a 2004 study from the Journal repeated requests for comment. with an agent, backed up when of Law and Economics that con- But it remains critical of fi nancial necessary by measures such as cluded defendants who used a bail bail, as evinced by remarks Attorney telephone reminders for court dates, bond company were 28 percent less General Loretta Lynch made in drug treatment and ankle monitors. likely to fail to appear than those December. Typically, this is much cheaper released on their own recognizance. “In so many instances, an indivi- than detention. In the federal The probability of becoming a fugi- dual’s access to justice has become system, the cost of pretrial services tive was also 64 percent lower for predicated on their ability to literally was $8.98 per person per day those using a bail bond company pay for it,” she said during a speech in fi scal 2014, while the cost of than those paying the court directly. in December at the White House pretrial detention was $76.25. The study attributed this to the Convening on Incarceration and The ABA Criminal Justice work of bond dealers and bounty Poverty. “When bail is set unreason- Standard 10-1.10 calls on every hunters, who have a fi nancial stake ably high, people are behind bars jurisdiction to use risk assessment in the outcome and the right to only because they are poor.” and pretrial supervision, making forcibly arrest defendants. Perhaps more important, the issue money bond a last resort. Most is getting attention at the local level. states have adopted that standard, gAiNiNg trACtiON In 2012, the Conference of State Burdeen says. But bail is still wide- The fi nancial bail debate is Court Administrators published a spread because it’s easy for judges, drawing more attention than it policy paper calling on state courts she says. “The practice has become has in years—in not only the media to propose risk-based, rather than that they skip over all these other but also local governments and the money-based, decisions on release considerations and options and Department of Justice. Burdeen of criminal defendants, along with they just go straight to setting traces the current interest in bail nonfi nancial release options. The money,” she says. “Because it is reform to 2011, when the DOJ called author of that paper is Pepin, the a legal option and it’s a shortcut.” a National Symposium on Pretrial New Mexico courts leader, who is Anne Milgram, former vice Justice. This deliberately echoed a also COSCA’s president-elect. He president of criminal justice at the says the conference chose that topic Arnold Foundation, adds that cost out of concern that most states’ bail has also been a deterrent to reforms. practices “weren’t productive and Plenty of jurisdictions have looked “IF YOU PLEAD perhaps not evidence-based.” into Washington, D.C.’s decades-old “People accused of minor crimes, risk-assessment system, she says— GUILTY, YOU GET even traffi c off enses, are staying in but most decided they couldn’t jail because they can’t meet a bail aff ord it. The problem is that older OUT OF JAIL TODAY. or bond, and that doesn’t serve risk assessments use interviews public safety,” he says. “If you nor- with the defendant, which requires a IF YOU ASSERT YOUR malize the data for all other factors, court employee’s time. It also invites the [defendants] who can’t aff ord to the possibility that the defendant INNOCENCE, YOU’RE make bail are at much higher risk of will lie or refuse to cooperate. conviction and recidivism.” The expense of interviews is STAYING IN JAIL.” Pepin has spent nearly three one concern that the American years working toward bail reform Bail Coalition, an industry group, in New Mexico. He’s chair of the raises about switching to risk-based —C—CHESAHESA BOUDINBOUDIN Bernalillo County Criminal Justice systems. “It’s extremely expensive,” Review Commission, formed in says Jeff rey Clayton, policy director 2013 to solve long-standing over- for the coalition. “If folks want to crowding at Albuquerque’s largest go that direction, they just need jail. Crowding there is part of a civil to understand the implications rights lawsuit, McClendon v. City of it all.” of Albuquerque, which entered its Interviews take time, which can 21st year in January. be a problem if the goal is to get The commission’s reforms release-eligible defendants freed include risk assessments for use quickly, he says. Clayton believes at arraignments and increased use fi nancial bail should remain. For of community supervision rather one thing, he says, fi nancial bail than jail. Pepin says this can be as gives family members, who often simple as a reminder that court is reprinted with permission from the ABA
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coming up or as drastic as an ankle monitor. As a result of those and other measures, a September report to the state legislature said that Bernalillo County’s jail population went down by 38 percent in two years, saving more than $5 million. And, thanks to a 2014 decision from the New Mexico Supreme Court, similar reforms may be forthcoming across the state. New Mexico v. Brown found that the state shouldn’t have held Walter Brown on $250,000 bail when less-restrictive measures would have suffi ced. Brown, who has develop- mental and intellectual disabilities, was charged with murder. The court wrote a lengthy opinion expressing concern that judges were basing decisions solely on the nature of the criminal charges. To recommend statewide changes, the court appointed the Ad Hoc Pretrial Release Committee. The committee recommended an amendment to the state constitution “MOST OF THE COUNTRY IS DOING to authorize pretrial detention for those found too dangerous [FINANCIAL BOND] IN AN OLD- for release and to prevent defen- dants from being held in jail solely FASHIONED, NONSCIENTIFIC WAY.” due to inability to post bail. The amendment passed in both houses, —C—CHERISEHERISE FANNOFANNO BURDEENBURDEEN according to its sponsor, state Sen. Peter Wirth, D-Santa Fe, and will likely go to New Mexico voters in November. The risk assessment used in Bernalillo County, Pepin says, the PSA or working on implement- was taken from one developed ing it as of late 2015, according to by Kentucky. But early this year, Milgram. That includes the states the county was also hoping to of Kentucky and New Jersey, as use a new risk-assessment tool well as numerous Arizona counties. designed by the Arnold Foundation, More than 100 other jurisdictions called the Public Safety Assessment. were interested, she says—so many Developed from analysis of 1.5 mil- that the Arnold Foundation couldn’t lion court cases drawn from more handle the demand. than 300 U.S. jurisdictions, the It’s too early for any defi nitive PSA aims to make risk assessment data on outcomes with the PSA, inexpensive, impartial and usable Milgram says, because testers in any U.S. jurisdiction. hadn’t had it long enough for most The foundation’s model removes of their cases to close. But the foun- the need for interviews and uses dation was working on rigorous only nine questions, all of which testing. However, she says, early can be typically answered in crimi- data is promising. For example, nal records. Milgram says that some early adopter Mecklenburg County, jurisdictions are working to gener- North Carolina, which includes ate the answers automatically from Charlotte, saw its jail population databases. drop 20 percent and its rate of About 29 jurisdictions were using failure appear to drop without an
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increase in reported crime. The county saw promising results. “I WAS ... WATCHING A more recent adopter is Dean says jail admissions decreased Allegheny County, Pennsylvania. by about 30 percent in the fi rst six PEOPLE STUCK IN The county, which includes months. In 2015, she says, failure to Pittsburgh, had already adopted appear, recidivism and jail popula- JAIL BECAUSE THEY a risk-assessment tool designed tion had all dropped. She cautions by the Pretrial Justice Institute that other factors may be at work— back in 2007. but she’s confi dent that fewer low- COULDN’T PAY $200 But that tool is interview-based. and moderate-risk people are jailed And Janice Radovick Dean, direc- pretrial today. BAIL. ... IF ANYTHING, tor of pretrial services for the Fifth Judicial District, says county courts LAwsuits PrOMPt CHANges THE PRINCIPLE IS outside the city of Pittsburgh didn’t Meanwhile, some jurisdictions are have the staff to implement it. That’s changing the hard way: through liti- EVEN STRONGER IN why Allegheny County planned to gation. Leading the charge is Equal adopt the PSA for its outlying courts Justice Under Law, the D.C. non- THE PRETRIAL in 2016, using automatically gener- profi t led by Karakatsanis. He and ated answers. After six months or so, co-founder Phil Telfeyan started CONTEXT. YOU the county will consider whether to suing over fi nancial bond after switch the whole system to the PSA. pursuing a series of cases about the related issue of debtors’ prisons— HAVEN’T BEEN public or privatized systems that jail people who can’t aff ord court costs. CONVICTED OF “As I sat in courts all around sev- eral states, watching people be jailed ANYTHING YET.” because they couldn’t pay their court costs, I was also watching people —ALEC—ALEC stuck in jail because they couldn’t pay $200 bail,” Karakatsanis says. KARAKATSANISKARAKATSANIS “And you know, if anything, the principle is even stronger in the pretrial context. You haven’t been convicted of anything yet.” Almost all the lawsuits were fi led against small cities. That includes the case in which the Justice Department intervened, which was fi led against the 8,745-person city of Clanton, Alabama. “It both brought us a lot of media attention but also I think served to highlight that the nation’s leading law enforcement group, the DOJ, has examined this issue,” Karakatsanis says, “and has itself been administering a system without money bail for the last sev- eral decades.” It may also have persuaded defen- dants to settle. In late 2015, Equal Justice Under Law had settled with six of the nine jurisdictions it sued. Typically, Karakatsanis says, cities drop the bail requirement altogether rather than replacing it with risk assessments, since most don’t prosecute serious felonies. But that’s likely to change with the case against San Francisco, which does prosecute felonies. The case named the state of California as
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a defendant, because its law requires the use of bail schedules. As a result, the case could reform bail across the nation’s most populous state. That lawsuit is also different because it’s facing more serious opposition. In January, Judge Yvonne Gonzalez Rogers told Equal Justice Under Law that its com- plaint was “impermissibly vague” and misunderstood how the California court system works. She gave the plaintiffs 30 days to amend their complaint with a clearer legal theory. She also dis- missed the state of California as a defendant, citing sovereign immu- nity. Shortly afterward, on Jan. 29, Equal Justice Under Law filed a similar lawsuit against Sacramento County. It named California Attorney General Kamala Harris, in her official capacity, as a defen- dant, suggesting one strategy for amending the San Francisco case. Despite this, the case has local support. The San Francisco public defender’s office is officially support- ing the case, as is the former sheriff, Ross Mirkarimi.
swifter review urged The American Bail Coalition was considering intervening on behalf Shannan Wise and her public defender, Zina Makar, reunite at of California and San Francisco the Wise household after her charges were dropped. They still at press time. Clayton argues that await the case’s expungement from her record. bail schedules are not unconstitu- tional because the indigent are not a suspect class for equal protection purposes, and there’s no disparate including the right to counsel and other jurisdictions are settling; do treatment when all defendants are the right to prompt review. you want to go through the expense given the same bail. In 2014, Buskey and others sued of being sued?’ ” she says. “There’s He thinks the real solution is a Scott County, Mississippi, alleging been a lot of progress over the last swifter review of the case, so release- it routinely imprisons people for four years, and I think the next two eligible defendants don’t languish months without an indictment— years will see even [more] acceler- for days. “As I’ve looked at many but won’t appoint public defenders ated progress.” of the settlements, particularly the until an indictment. A Mississippi As for Shannan Wise, she says ones in Alabama, that’s been the federal judge dismissed some of her sister never faced any legal outcome,” Clayton says. “And we’re the claims in September, but left consequences for filing the false for that.” financial damages claims alive. police report, which led to Wise Length of pretrial detention is However, it’s possible that being held in jail. an issue in the other cases currently nobody will have to sue for reforms. Wise has been getting her own addressing bail reform, filed by the Karakatsanis says he’s heard from life back on track. She filled out national American Civil Liberties many municipalities that have expungement paperwork the same Union. Brandon Buskey, a staff changed their policies after day the charges were dropped, attorney on the organization’s seeing their neighbors get sued. which she hoped would put to rest criminal law reform project, says Burdeen believes more will worries about her state-licensed his bail reform work has been part follow. “I’m already in conversa- job. She finished her medical billing of a larger push toward pretrial tions with other states and saying, course in December and is hoping justice reform—a set of issues also ‘I don’t know if you noticed, but to land a new externship. n
reprinted with permission from the ABA Journal
0416FMONEYBAIL.indd 61 3/7/16 5:21 PM (705 ILCS 95/25) Sec. 25. Statutory Court Fee Task Force. (a) There is hereby created the Statutory Court Fee Task Force. The purpose of the Task Force is to conduct a thorough review of the various statutory fees imposed or assessed on criminal defendants and civil litigants. (b) The Task Force shall consist of 15 members, appointed as follows: one each by the Speaker of the House of Representatives, the Minority Leader of the House of Representatives, the President of the Senate, and the Minority Leader of the Senate; 2 by the association representing circuit court clerks; 2 by the Governor, and 7 by the Supreme Court. (c) At the direction of the Supreme Court, the Administrative Office of the Illinois Courts shall provide administrative support to the Task Force. (d) The Task Force shall submit a report containing its findings and any recommendations to the Supreme Court and the General Assembly by June 1, 2016. (Source: P.A. 98-351, eff. 8-15-13; 98-763, eff. 7-16-14.)
Written Statement of the American Civil Liberties Union Before the United States Commission on Civil Rights
Hearing On Municipal Policing and Courts: A Search for Justice or a Quest for Revenue Friday, March 18, 2016
Submitted By Nusrat Choudhury, Staff Attorney Racial Justice Program [email protected]
On behalf of the American Civil Liberties Union (“ACLU”), we thank the U.S. Commission on Civil Rights for holding this important briefing on “Municipal Policing and Courts: A Search for Justice or a Quest for Revenue.”
For nearly 100 years, the ACLU has worked in courts, legislatures, and communities to defend and preserve the individual rights and liberties guaranteed by the Constitution and the laws of the United States.1 Consistent with that mission, the ACLU Racial Justice Program brings impact lawsuits designed to have a significant and wide-reaching effect on communities of color in the areas of criminal justice, economic justice, education, affirmative action, and American Indian rights. The ACLU Washington Legislative Office (“WLO”) conducts federal legislative and administrative advocacy to advance the ACLU’s goals.
The ACLU submits this testimony to highlight our concerns about municipal court and policing practices that lead to the phenomenon known as “modern-day debtors’ prisons”—the jailing of people for nonpayment of fines and fees they cannot afford through procedures that violate their most basic constitutional rights. We also provide recommendations on how municipalities can reform these practices, which exact devastating human and financial costs, particularly upon low-income communities of color. These best practices are drawn from reforms adopted by the City of Biloxi, Mississippi to settle a recent ACLU lawsuit, and present a workable model for municipalities seeking to collect fines and fees in compliance with constitutional rights.
Finally, we ask the Commission to issue a written report on municipal revenue-generation practices that lead to the illegal jailing of low-income people, to recommend best practices to address these problems, and to hold an additional briefing on the role of for-profit companies in fostering such practices.
I. Introduction: The Rise of Modern-Day Debtors’ Prisons
Since the Great Recession of 2008-2009, municipalities, counties, and states, hard-pressed to fill budget gaps, have seen a ready source of funds in people accused of misdemeanor criminal offenses, ordinance violations, and civil infractions. Some municipal courts have attempted to supplement their funding and even raise general municipal revenue by charging fees to these people, including fees for public defenders, prosecutors, court administration, jail operation, and probation supervision.
These courts, often with the explicit or implicit support of municipal leaders and police, have used aggressive tactics to collect court-imposed fines, fees, costs, assessments and restitution, which I will refer to collectively as “fines and fees.” Tactics include threatening to jail and incarcerating poor people without affording procedural safeguards, and enlisting for-profit companies that have a financial interest in the debts they seek to collect.
Perversely, although these courts and the municipalities they serve seek to generate revenue, they do not systematically gather and produce data showing that jailing poor people for debts they cannot pay actually makes money when accounting for policing and jailing costs.
1 The ACLU is a non-partisan organization with more than half a million members, countless additional activists and supporters, and fifty-three affiliates nationwide.
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In 2010, the ACLU documented this nationwide trend in its report, In for A Penny: The Rise of America’s New Debtors’ Prisons. The report presented the results of a year-long investigation into modern-day debtors’ prisons in five states.2 Since then, the ACLU and its affiliates have continued to expose and challenge debtors’ prisons through litigation, documentation, and advocacy in Colorado, Georgia, Louisiana, Maine, Michigan, Mississippi, New Hampshire, Ohio, and Washington.3 In 2015 alone, the ACLU and its affiliates filed lawsuits in federal and state courts in Georgia, Mississippi, Michigan, and Washington.4
These investigations reveal that in a wide variety of localities across the country—urban and rural, rich and poor—low-income people are being jailed for failing to pay legal debts they cannot afford at increasingly alarming rates. These debtors’ prisons create a two-tiered system of justice that violates basic constitutional rights and is racially-skewed due to the dual impact of racial disparities in the criminal justice system and the racial wealth gap.
II. Debtors’ Prisons Violate Constitutional Rights
More than three decades ago, the U.S. Supreme Court clearly established that the promises of equality and fairness embedded in the Fourteenth Amendment to the U.S. Constitution protect against the jailing of poor people simply because of their inability to pay.
2 American Civil Liberties Union, IN FOR A PENNY: THE RISE OF AMERICA’S NEW DEBTORS’ PRISONS (2010), https://www.aclu.org/files/assets/InForAPenny_web.pdf. 3 ACLU of Louisiana, LOUISIANA DEBTORS’ PRISONS: AN APPEAL TO JUSTICE (2015), https://www.laaclu.org/resources/LADebtorsPrisons_2015.pdf; ACLU of New Hampshire, DEBTORS’ PRISONS IN NEW HAMPSHIRE (2015), http://aclu-nh.org/wp-content/uploads/2015/09/Final-ACLU-Debtors-Prisons-Report- 9.23.15.pdf; ACLU of Ohio, IN JAIL & IN DEBT: OHIO’S PAY-TO-STAY FEES (2015), http://www.aclu ohio.org/wp-content/uploads/2015/11/InJailInDebt.pdf; ACLU of Ohio, THE OUTSKIRTS OF HOPE: HOW OHIO’S DEBTORS’ PRISONS ARE RUINING LIVES AND COSTING COMMUNITIES (2013), http://www.acluohio.org/wp- content/uploads/2013/04/TheOutskirtsOfHope2013_04.pdf; ACLU of Washington and Columbia Legal Services, MODERN-DAY DEBTORS’ PRISONS: THE WAYS COURT-IMPOSED DEBTS PUNISH PEOPLE FOR BEING POOR (2014) [hereinafter Modern-Day Debtors’ Prisons in Washington], https://aclu-wa.org/sites/default/files/ attachments/Modern%20Day%20Debtor%27s%20Prison%20Final%20%283%29.pdf; Alison Beyea, Legislature Has a Chance to End Debtors’ Prisons in Maine, ACLU OF MAINE BLOG (Mar. 8, 2016), https://aclumaine .org/legislature-has-chance-end-debtors-prisons-maine; Debtors’ Prisons, ACLU OF COLORADO, http://aclu- co.org/court-cases/debtors-prisons/ (last visited Mar. 16, 2016) (compiling 2013 letters to municipalities of Westminster, Northglenn, and Wheat Ridge concerning illegal jailing of people unable to pay fines and fees); Press Release, ACLU of Colorado, Colorado Legislature Approves Ban on Debtors’ Prisons (Apr. 23, 2014), http://aclu- co.org/colorado-legislature-approves-ban-debtors-prisons/. 4 Complaint, Thompson v. Dekalb County, No. 1:15-cv-280-TWT (N.D. Ga. Jan. 29, 2015), https://www.aclu.org /sites/default/files/field_document/2015.01.29_filed_thompson_complaint.pdf; Complaint, Fuentes v. Benton County, Washington, No. 15-2-02976-1 (Sup. Ct. Wash. Yakima County Oct. 6, 2015), https://www.aclu.org /sites/default/files/field_document/fuentes_v._benton_county_-_complaint.pdf; Complaint, Kennedy v. City of Biloxi, No. 1:15-cv-00348-HSO-JCG (S.D. Miss. Oct. 21, 2015), https://www.aclu.org/kennedy-v-city-biloxi- complaint; Complaint for Superintending Control, In re Donna Elaine Anderson, Circuit Court Case No. 15-2380- AS (Cir. Court County of Macomb Jul. 9, 2015), http://www.aclumich.org/sites/default/files/Complaint %20for%20Superintending%20Control%20with%20exhibits%20FILED.pdf.
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A. Right to an Ability to Pay Hearing
In 1970, the Supreme Court held in Williams v. Illinois that the Fourteenth Amendment’s Equal Protection Clause prohibited a court from extending a maximum prison term because the defendant failed to pay court costs or fines he could not afford.5 The following year, the Supreme Court held in Tate v. Short that the Equal Protection Clause also prohibited the jailing of an indigent defendant solely because he could not afford to pay a fine imposed under a fine- only statute.6
In 1983, the Supreme Court issued Bearden v. Georgia, its landmark decision on the procedural protections applicable to court collection of fines and restitution. It ruled that the Fourteenth Amendment’s Equal Protection and Due Process Clauses require judges to conduct a meaningful “inquir[y] into the reasons for failure to pay” before jailing a person for nonpayment.7 Judges must examine the person’s ability to pay and efforts to secure resources.8 And if the court determines that the person is unable to pay, despite having made good faith efforts to acquire money, it must consider alternative punishments to incarceration before imposing jail for nonpayment, with a recognition that the state’s interest “in punishment and deterrence . . . can often be served fully by alternative means.”9 Alternatives include an extension of time to make payments, a reduction or waiver of the amount owed, and community service.10 Bearden made clear that judges can only impose jail if a debtor is found to have “willfully” failed to pay or to make bona fide efforts to do so, or if there is good reason to conclude that no alternative measures would accomplish punishment and deterrence.11
B. Right to Counsel
The right to counsel also applies to key points in the process when municipal courts impose and collect fines and fees. The Sixth Amendment requires the provision of counsel to a defendant in any criminal proceeding that results in a jail sentence.12 It also requires that people sentenced to probation be afforded counsel at the conviction and sentencing stages.13
The Fourteenth Amendment Due Process Clause additionally affords all indigent people the right to court-appointed counsel at no cost when they face possible incarceration for failure to pay a fine or fee, and affords all people a right to at least request representation by legal counsel in that
5 Williams v. Illinois, 399 U.S. 235, 242 (1970). 6 Tate v. Short, 401 U.S. 395, 397–98 (1971). 7 Bearden v. Georgia, 461 U.S. 660, 672 (1983). 8 Id. 9 Id. at 671–72 (emphasis supplied). The Supreme Court noted that the requirement that a court consider alternative forms of punishment was not “novel,” since earlier decisions in Williams, 399 U.S. 235, and Tate, 401 U.S. 395, had also “emphasized the availability of alternative forms of punishment in holding that indigents could not be subjected automatically to imprisonment.” Bearden, 461 U.S. at 673 n.12 (internal quotations omitted). 10 Bearden, 461 U.S. at 671–72. 11 Id. at 672. 12 Scott v. Illinois, 440 U.S. 367, 373 (1979); Argersinger v. Hamlin, 407 U.S. 25, 37–38 (1972). 13 Alabama v. Shelton, 535 U.S. 654, 662 (2002).
3 situation. These rights apply whether a person is charged with civil contempt14 or probation violation15 for nonpayment.
Courts must inform people of these rights concerning counsel when seeking to impose jail or probation to collect fines and fees.16 They may not accept a written or oral waiver of a right to counsel without first informing the person of the risks and dangers of proceeding without counsel and the benefits of proceeding with counsel, and without ensuring that any waiver is knowing, intelligent, and voluntary.17
Appointment of counsel to the indigent is critically important to preventing and addressing debtors’ prisons. Proceeding without counsel increases the risk that a person will be wrongfully jailed for nonpayment. The assistance of counsel can help a poor person assert her rights, prepare and present financial hardship documentation to the court, argue in favor of alternatives to incarceration, and advocate against jail as punishment for nonpayment.
C. Right to Neutral Decisionmakers in the Justice System
Finally, the Supreme Court long ago established that due process protects people from justice system decisionmakers who have a direct or indirect financial interest in the outcome of their proceedings in its decisions in Tumey v. Ohio and Ward v. Village of Monroeville, Ohio.18 These concerns about fairness and due process apply when for-profit probation companies, courts, prosecutors, or public defenders gain profit or depend on revenue from the fees they collect.
14 See, e.g., Turner v. Rogers, 131 S.Ct. 2507, 2519–20 (2011) (denying categorical due process right to counsel for indigent non-custodial parents charged with nonpayment of child support in hearings brought by unrepresented custodial parents, but distinguishing “debt-collection proceedings” where financial obligations are owed to the state). 15 The Supreme Court’s decisions in Bearden and Gagnon v. Scarpelli together establish that due process affords a right to counsel in probation revocation proceedings concerning failure-to-pay charges. See Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973) (“[C]ounsel should be provided” when probationer is informed of right to request counsel and does so “based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that . . . there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present.”); Bearden v. Georgia, 461 U.S. at 668–69 (“[I]f [a] probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own,” that “lack of fault” for non-payment “provides a substantial reaso[n] which justifie[s] or mitigate[s] the violation and make[s] revocation inappropriate.”) (citing Gagnon, 411 U.S. at 790). 16 See Gagnon, 411 U.S. at 790 (recognizing obligation of the court to inform probationers of right to request counsel in revocation proceedings). 17 See United States v. Hodges, 460 F.3d 646, 648 (5th Cir. 2006) (requiring waiver of probationer’s right to counsel to “be knowing and voluntary as demonstrated either though a colloquy with the district court or by the totality of the circumstances, or both”); United States v. Gewin, 759 F.3d 72, 88–89 (D.C. Cir. 2014) (Pillard, J., concurring), cert denied, 135 S. Ct. 1866 (2015) (reasoning that due process right to counsel applied to civil contempt proceeding concerning nonpayment of fines and restitution and that “best practice” required a “prompt and explicit colloquy on the record” to determine whether waiver of the right was knowing and intelligent); In re Winslow, 131 B.R. 171, 174 (D. Colo.), decision clarified, 132 B.R. 1020 (D. Colo. 1991) (requiring lower court to determine whether debtors had knowingly and intelligently waived right to counsel in civil contempt proceedings). 18 See Tumey v. Ohio, 273 U.S. 510, 523 (1927) (invalidating conviction because mayor who adjudicated the proceeding received a $12 fee only upon the defendant’s conviction); Ward v. Village of Monroeville, Ohio, 409 U.S. 57, 61–62 (1972) (extending the reasoning of Tumey to cases in which the judge has an institutional, if not personal, financial interest in the outcome).
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III. Municipal Revenue Generation Practices Fuel Debtors’ Prisons Across the Country
Many of the debtors’ prisons practices challenged by the ACLU concern schemes to raise revenue for municipal courts or city coffers. They involve courts, police, or probation companies that use threats of jail and incarceration to elicit payments toward unpaid fines and fees, including from the poor. In their quest for revenue, these local governments and courts either intend to flout constitutional safeguards against the jailing of the poor, are woefully ignorant of those protections, or are unsure how to apply them.
The ACLU has documented these practices in a wide variety of municipalities that span the country, from the Pacific Northwest to New England, and from the Midwest to the Deep South. No region of the United States has a monopoly on these unsound practices. ACLU investigations in Ohio, Washington, and Georgia provide illustrative examples.
A. Ohio Mayor’s Courts
In In for a Penny, the ACLU exposed how one Ohio town with a population of 60 collected more than $400,000 in one year in fines and fees assessed in its “mayor’s court.”19 Mayor’s courts are largely unregulated courts in Ohio that handle minor misdemeanor cases. 20 They are infamous for assessing inordinate fines and fees to generate revenue for local budgets, as shown by the dramatic disparity between their population figures and the fine and fee amounts they collect annually for low-level offenses.
B. Benton County, Washington
In 2015, the ACLU filed a class-action lawsuit against Benton County in central Washington state over its unconstitutional system for collecting court-imposed debts. That system sought to fund County services by extracting revenue and labor from low-income people.21 Prior to the lawsuit, Benton County routinely assessed fines, fees, costs, and assessments in an amount upwards of $1,000 for each offense without considering a person’s ability to pay.22 When indigent people fell behind on payments, Benton County sought to extract money by sentencing them to jail or to provide labor for the County on a work crew without any prior inquiry into whether nonpayment was willful.23 For many people, including the plaintiffs in our case, a work crew sentence quickly transitioned to incarceration for minor infractions, again, without any prior determination of ability to pay.24
19 IN FOR A PENNY, supra note 2 at 8. 20 Ohio law currently allows mayors of municipal corporations populated by more than 200 people where there is no municipal court to conduct “mayor’s court” for violations of local ordinances and state traffic laws. Mayor’s courts are not courts of record and are not technically part of the state judiciary. At the request of the General Assembly, the Supreme Court has adopted rules providing for court procedures and basic legal education for mayors, but there are no enforcement proceedings. A mayor is not required to be a lawyer. A person convicted in a mayor’s court may appeal the conviction to the municipal or county court having jurisdiction within the municipal corporation. See Ohio Rev. Code § 1905.01(A). 21 Complaint, Fuentes v. Benton County, Washington, No. 15-2-02976-1 (Sup. Ct. Wash. Yakima County Oct. 6, 2015), https://www.aclu.org/sites/default/files/field_document/fuentes_v._benton_county_-_complaint.pdf. 22 Id. ¶ 2. 23 Id. ¶ 2. 24 Id. ¶ 9.
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The ACLU of Washington had exposed this illegal revenue generation scheme in a 2014 report on debtors’ prisons, and sent a letter to Benton County demanding reforms.25 Despite being on notice of their violation of the law, County policymakers retained their program of extracting money and free labor from low-income people through jail and work crew, which prompted the ACLU’s lawsuit.26
C. DeKalb County, Georgia
The ACLU’s federal lawsuit against DeKalb County, Georgia shined a bright light on a municipal scheme to use for-profit probation to generate revenue that resulted in a racially- skewed debtors’ prison.
In 2015, we filed suit on behalf of Kevin Thompson, a Black teenager in DeKalb County who was jailed because he could not afford to pay court fines and probation company fees stemming from a traffic ticket.27 Thompson was not alone. While Blacks made up 54% of the DeKalb County population at that time, nearly all probationers jailed by the DeKalb County Recorders Court for nonpayment of fines and fees in the months leading up to the Thompson suit were Black—a pattern replicated by other Georgia courts.28
The lawsuit charged that DeKalb County and the for-profit probation company, Judicial Correction Services, Inc. (JCS), teamed up to generate county revenue and JCS fees by collecting fines and fees imposed by the County’s Recorders Court, including from people too poor to pay on sentencing day.
In this scheme, the Recorders Court served as a significant source of general County revenue.29 In 2010, DeKalb County faced a $100 million revenue shortfall and relied on the Recorders Court fine and fee collections to help bridge the gap.30 According to public records, the amount of revenue raised by the Recorders Court skyrocketed to over $30 million in 2013 from $21 million in 2009.31 In 2014, the Recorders Court was projected to generate almost $27 million in
25 See Modern-Day Debtors’ Prisons in Washington; Letter from American Civil Liberties Union of Washington and Columbia Legal Services to Benton County Superior Court, Benton County District Court (Feb. 4, 2014), https://aclu-wa.org/sites/default/files/attachments/2014-02-07%20Benton%20County%20Letter.pdf. 26 Complaint ¶ 6, Fuentes, supra note 21. 27 Complaint, Thompson v. Dekalb County, No. 1:15-cv-280-TWT (N.D. Ga. Jan. 29, 2015), https://www.aclu.org /sites/default/files/field_document/2015.01.29_filed_thompson_complaint.pdf. 28 U.S. Census Bureau, 2014 American Community Survey, 5-year Estimate, Table DP05 DeKalb County, Georgia, http://factfinder.census.gov/bkmk/table/1.0/en/ACS/14_5YR/DP05/0500000US13089; Notes on file with Nusrat J. Choudhury from May 23, 2014; June 6, 2014; June 13, 2014; July 11, 2014; August 1, 2014; August 8, 2014; October 6, 2014; October 27, 2014 DeKalb County Recorder’s Court Probation Revocation Hearings; Notes on file with Nusrat J. Choudhury from December 2014 and January 2015 Interviews in the DeKalb County Jail. 29 Complaint ¶ 64, Thompson, supra note 27. 30 Id. ¶ 64. 31 DeKalb County, Georgia, ANNUAL BUDGET 2014 279–280 (2014), http://dekalbcountyga.gov/finance/pdf/2014_ budget_book.pdf; DeKalb County, Georgia, ANNUAL BUDGET 2009 268 (2009), http://dekalbcountyga.gov/finance/ pdf/budget/2009/DeKalb_2009_Budget_Book.pdf.
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revenue for DeKalb County, even though its projected operating cost was less than $3.8 million.32
In the year before the Thompson suit was filed, the Recorders Court collected seven times more revenue than its cost of operation by soliciting and implementing a probation program run by JCS, a for-profit company that promised to boost collections.33 But neither DeKalb County nor JCS addressed how their employees, including judges and probation officers, would inform probationers charged with nonpayment of their right to request counsel and to a predeprivation ability-to-pay hearing, the guidelines that would be used to identify those who could not pay, or what alternatives to incarceration were available for the indigent.34 JCS faced a direct financial incentive not to identify the indigent and not to inform them of their rights because JCS service fees for the indigent should have been reduced, waived, or convert to community service.35
Kevin Thompson was jailed as a direct result of this revenue generation scheme. When he told his JCS probation officer that he had only been able to secure $85 by working odd jobs and borrowing money from his family, the JCS employee did not inform him of his rights or notify him that the court could waive or reduce his fines and fees upon a demonstration of indigence. The Recorders Court revoked Thompson’s probation and sentenced him to jail in a hearing that lasted only minutes. Mr. Thompson was handcuffed in front of his mother and incarcerated for five days.
DeKalb County paid the costs of incarcerating Kevin Thompson, but did not collect a penny of the more than $800 in fines and fees that this unemployed teenager could not afford to pay.
The Thompson case ultimately helped to dismantle DeKalb County’s system of generating revenue through for-profit probation. It resulted in a settlement involving policy reforms, including training and the adoption of a bench card to guide judges on how to protect the right to counsel and avoid sending indigent people to jail for unpaid fines and fees. The Georgia General Assembly subsequently dissolved the DeKalb County Recorders Court, sending its traffic docket to a division of the state court, where for-profit probation is not used to collect fines and fees.36
32 DeKalb County, Georgia, ANNUAL BUDGET 2014 279-280 (2014), http://dekalbcountyga.gov/finance/pdf/2014_ budget_book.pdf. 33 DeKalb County Dept. of Purchasing and Contracting, Request for Proposals for Comprehensive Professional Probation Services for the Recorder’s Court in DeKalb County, Ga., No. 08-50079 (March 20, 2008) (Records obtained through public records request and are on file with the author); Agreement to Provide Comprehensive Professional Probation Services for the Recorders Court of DeKalb County, Georgia with Judicial Correction Services, LLC (hereinafter, “2008 DeKalb-JCS Contract”) (Sept. 9, 2008) (Records obtained through public records request and are on file with the author); Professional Probation Services Agreement, Contract by and between Chief Judge Nelly Withers and Judicial Correction Services, LLC (Dec. 8, 2011) (hereinafter “2011 DCRC-JCS Contract”), Bates No. DCRC000029-50, 28- 29 (document on file with Nusrat Choudhury) Contract was produced on Aug.28, 2014 in response to an Aug. 19, 2014 Open Records Request to the DeKalb County Recorder’s Court filed by the ACLU. 34 Judicial Corrections Services, Inc., Service Provider Response to DeKalb County Request for Proposals 08- 500079, Appendix II to 2008 DeKalb-JCS Contract at 3, 7, 9-11; 2008 DeKalb-JCS Contract; 2011 DCRC-JCS Contract; Complaint ¶¶ 95–96, Thompson ¶ 3, supra note 27. 35 Id. ¶ 75. 36 In 2015, the Georgia General Assembly passed House Bill 300, which established a traffic division for the State Court of DeKalb County to handle traffic cases for DeKalb County. H.B. 300, 153rd Gen. Assemb., Reg. Sess. (Ga.
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The Atlanta Journal Constitution recently reported that the average amount of traffic fines has dramatically decreased since the ACLU sued.37 Since the settlement, we have not observed or been notified of people being jailed for unpaid traffic tickets without access to counsel or a court hearing on their ability to pay.
These examples from Georgia, Washington, and Ohio show that municipalities that mistakenly view fines and fees as much-needed revenue engage in distorted collections practices that result in jailing of the poor in violation of their rights to due process and equal protection under the law.
IV. Five Paths to Debtors’ Prisons
Challenging debtors’ prisons requires understanding how they come about. The ACLU has identified five mechanisms by which municipal courts and police wrongfully jail people for nonpayment of fines and fees they cannot afford.
A. “Pay-or-Stay” Sentences
The first path to debtors’ prisons involves the issuance of so-called “pay-or-stay” sentences. These sentences offer poor people the false “choice” of immediately paying a certain amount of money in fines and fees or going to jail.
In 2011, the ACLU and ACLU of Michigan represented seven indigent people in appealing their pay-or-stay sentences in state court.38 One of them, Kyle Dewitt, was an unemployed teenager, charged with catching a fish out of season, and was sentenced to $215 in fines or three days in jail. The judge did not hold a hearing to determine whether he could afford to pay the fines. Nor did the judge consider setting up a payment plan or requiring community service instead. Dewitt was jailed because he did not have the money to pay.
The ACLU ultimately secured the release of all seven of our clients. Yet, illegal pay-or-stay sentences persist.
Last July, the ACLU of Michigan filed a motion requesting that the Macomb County Circuit Court in Michigan take superintending control over Michigan’s 38th District Court in Eastpointe, where the presiding judge had an established practice of imposing illegal pay-or-stay sentences on indigent people.39 That motion was granted last week. The presiding judge is now prohibited
2015) It also passed HB 302, which abolished the DeKalb County Recorders Court effective on July 1, 2015. H.B. 302, 153rd Gen. Assemb., Reg. Sess. (Ga. 2015). 37 Mark Niesse, DeKalb Traffic Fines Decline after Court Abolished, ATLANTA J, CONST, Jan. 15, 2016, http://www.myajc.com/news/news/local-govt-politics/dekalb-traffic-fines-decline-after-court-abolished/np5SL/ (reporting that the average amount collected from each traffic ticket plunged from a high of $159 in 2013 to about $100 or less in 2015). 38 ACLU of Michigan, PAY OR STAY CLIENTS , http://www.aclumich.org/pay-or-stay-clients (last visited Mar. 13, 2016). 39 Complaint for Superintending Control ¶ 2, In re Donna Elaine Anderson, Circuit Court Case No. 15-2380-AS (Cir. Court Mich. County of Macomb, Jul. 9, 2015), http://www.aclumich.org/sites/default/files/Complaintfor SuperintendingControlWithoutExhibits.pdf.
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from jailing people for nonpayment of fines and fees without first making an on-the-record finding that the payment will not impose manifest hardship and that the defendant has not made a good faith effort to comply with the order.40
B. Immediate Courthouse Detention After Sentencing
A second path to debtors’ prisons results from the illegal detention of people in the courthouse immediately after sentencing in order to coerce payment toward fines and fees.
In May 2014, a 32-year-old mother of two appeared in court in a Mississippi municipality to contest a traffic ticket received while taking her kids to school. The judge found her guilty of having a defaced vehicle registration tag and sentenced her to pay to $236 in a fine and a local assessment, even though the maximum penalty under Mississippi law was just $25. The woman did not have a lawyer to dispute the fine. When she informed the judge that she could not afford to pay, a police officer told her she would not be able to leave the municipal building until she paid a significant amount toward her fine and fee.
Terrified of being separated from her children, this woman frantically called family and friends. Police detained her for hours until a friend arrived with $50 in cash to prevent her from being jailed overnight. Several others were similarly detained after informing the judge that they could not afford to pay fines and fees that day, including a woman who was eight months pregnant at the time.
C. For-Profit Probation for Debt Collection
A third path to debtors’ prison involves the use of “pay-only” probation—probation imposed for the sole purpose of collecting fines and fees from people who cannot afford to pay on sentencing day. When probationers fall behind on payments, courts revoke probation and impose jail time without providing notice, access to counsel, or proper hearings.
The rise of the for-profit probation industry has fueled the probation path to debtors’ prison.41 For-profit probation companies currently operate in at least twelve states.42 They employ a so- called “offender-funded” model that contributes directly to the illegal jailing of poor people for unpaid fines and fees.
40 Stipulation and Order of Superintending Control at 2, ¶ 1, In re Donna Elaine Anderson, Circuit Court Case No. 15-2380-AS (Order dated Mar. 8, 2016), http://www.aclumich.org/sites/default/files/Order %20for%20Superindending%20Control_0.pdf. 41 See Christine Schloss and Lianne Alaird, Standards in the Privatization of Probation Services: A Statutory Analysis, 32 CRIM. JUS. REV. 233 (2007), http://www.sagepub.com/hanserstudy/articles/05/Schloss.pdf (“[S]tate budgets have not been able to keep pace with the burgeoning probation populations and clients currently on community supervision.”). 42 Human Rights Watch, PROFITING FROM PROBATION: AMERICA’S “OFFENDER-FUNDED” PROBATION INDUSTRY 12 n.3 (2014), http://www.hrw.org/sites/default/files/reports/us0214_ForUpload_0.pdf (noting operation of private probation companies in Alabama, Colorado, Florida, Georgia, Idaho, Michigan, Mississippi, Missouri, Montana, Tennessee, Utah, and Washington).
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For-profit probation companies offer local governments the service of collecting legal debts from people sentenced for misdemeanor and traffic offenses and ordinance violations. But instead of billing public authorities, the companies charge probationers monthly “supervision fees,” which are often a company’s sole source of revenue.
As a result, for-profit company probation officers face a conflict of interest. As probation officers, they should collect fines from those who can pay and help the court identify those who cannot pay and who face limitations on their ability to find work and earn money. Instead, these company employees face significant pressure not to hurt the company bottom line by identifying the indigent or informing them of their rights.43
In 2014, Human Rights Watch documented private probation officers’ relentless focus on payment in Georgia and Mississippi.44 It exposed officers who threatened to have probationers jailed for falling behind on payments and who sought arrest warrants to coerce probationers and their families into paying some of what was owed in exchange for probationers’ freedom.45
The probation path to debtors’ prison is vividly illustrated by the ACLU’s lawsuit, Thompson v. DeKalb County. When Kevin Thompson told his JCS probation officer that he could not meet the court’s requirement of paying more than $800 in thirty days because he was unemployed and could not secure work due to a suspended driver’s license, the probation officer did not tell him that the court could waive or reduce his fines and fees upon a demonstration of indigence. Instead, the JCS probation officer misinformed Thompson that he would have to pay an additional $150 for a public defender to represent him in his probation revocation proceedings when the cost was actually $50 and waivable for the indigent. After providing this incorrect and incomplete information, the JCS probation officer checked a box off on a form signed by Mr. Thompson to indicate that he had purportedly waived his right to a public defender.
Without an advocate to help him prove his inability to pay and painstaking efforts to work odd jobs and borrow money, Kevin Thompson was jailed.
D. Failure-to-Pay Warrants and Jailhouse Shakedowns for Cash
The fourth path to debtor’s prisons involves the arrest and jailing of poor people on failure-to- pay warrants, often called civil contempt, “capias,” or “capias pro finem” warrants. In these cases, after a court is notified that a person has fallen behind on fine and fee payments, it issues a warrant directing law enforcement officers to arrest and jail the person, unless she can
43 Not only do private probation officers suffer from a conflict of interest in dealing with poor probationers, they also prioritize private company profit margins over the needs of courts. The Georgia Department of Audits and Accounts Performance Division conducted an audit of for-profit probation companies in 2014. It found that three of the 13 companies audited consistently prioritized the collection of supervision fees over court fines, state surcharges, restitution, and other accounts. It also found that these companies sought to ensure that all supervision fees were paid before allocating funds to other recipients and altered the allocation method late in a probation term to ensure the payment of supervision fees in full. Misdemeanor Probation Operations, Georgia Department of Audits and Accounts Performance Audit Division, Report No. 12-06 at 34 (Apr. 2014), http://chronicle.augusta. com/images/2014/auditMisdemeanorProbation.pdf. 44 See PROFITING FROM PROBATION, supra note 42 at 10. 45 Id. at 26, 46.
10 immediately pay in cash the entire amount of the fines and fees owed. Police officers execute failure-to-pay warrants at traffic and pedestrian stops, and in response to calls for police assistance. Debtors are booked and jailed for days unless they can quickly come up with the money.
In one municipality investigated by the ACLU, public records showed that during a nine-month period in 2014 and 2015, more than 2,681 failure-to-pay warrants were issued against at least 1,520 different people, directing law enforcement to arrest them for nonpayment of fines and fees.46 Public records also showed that during a seven-month period in 2014 and 2015, 415 different people were booked in jail pursuant to these warrants issued and were unable to pay any money to secure their release.47 The city had no practice of enduring that people were informed of their right to request counsel or afforded an ability-to-pay hearing before being arrested and subjected to what was literally a jailhouse shakedown for cash.
In several Mississippi municipalities, failure-to-pay warrants are widely issued even against probationers who should be afforded standard probation revocation procedures. Those procedures require notice of the charge of nonpayment and a hearing at which the court informs the probationer of her right to request counsel, appoints counsel if the probationer is indigent, and conducts an ability-to-pay hearing.
E. Improper Revocation of Work Release
A fifth path to the illegal jailing of the poor results from the use of work release as a back door to debtors’ prison.
The ACLU is challenging such a system in our lawsuit against Benton County, Washington. Prior to the lawsuit, Benton County routinely assessed fines and fees in an amount upwards of $1,000 for each offense without considering a person’s ability to pay. Indigent people who were unable to pay were sentenced to a work crew, where they performed free janitorial or landscaping services for the County. Work crew sentences often quickly transitioned to jail sentences without adequate notice or opportunity to be heard based on minor infractions.
For example, if a person was unable to appear at work crew due to a lack of transportation, Benton County automatically converted work crew placement into a jail sentence without providing an intervening court hearing on the underlying issue—the person’s inability to pay fines and fees.
V. Municipal Revenue Generation Schemes that Target the Poor Have a Devastating Impact on Communities and Undermine Public Safety
No matter how they come about, municipal revenue generation practices that target the poor and lead to debtors’ prisons impose devastating human costs. They expose people to job loss,
46 Declaration of Nina Papachristou in Support of Plaintiffs’ Motion for Class Certification ¶ 19–20, Kennedy v. City of Biloxi, No. 1:15-cv-00348-HSO-JCG (S.D. Miss. Oct. 21, 2015), https://www.aclu.org/kennedy-v-city- biloxi-papachristou-declaration-support-plaintiffs-motion-class-certification. 47 Id. ¶ 14.
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separation from their families, and repeated, unnecessary incarceration despite posing no danger to the community. They also force poor people and their families to forgo basic necessities and to use money from means-tested public assistance programs to avoid arrest and jail. The resulting cycle of poverty and jail can be nearly impossible to escape.
When police are involved in these practices, entire communities feel alienated. This, in turn, undermines public safety.
ACLU investigation into one Mississippi municipality revealed in poignant detail the extent of this alienation. This municipality widely used arrest warrants to jail people who could not pay fines and fees in cash and in full upon arrest. Because of the racial wealth gap, low-income Black people were particularly impacted. Many Black people reported feeling chilled from seeking police assistance, even when faced with threats to their safety, because contacting police would expose them to debtors’ prison.
We interviewed a mother of five who had fallen behind on paying traffic fines while unemployed and who feared that outstanding capias warrants called for her arrest. This woman is a domestic violence survivor, and one day last year, her husband became violent during an argument. Although she was in a desperate situation, the woman delayed calling police for help because she feared arrest for unpaid fines and fees. In the end, scared for herself and her children, she called the police.
By the time officers arrived on the scene, her husband had fled. But, the woman’s worst fears were confirmed when police officers ran her name for warrants and arrested her for unpaid fines. At jail, the officers demanded that she pay the entire amount she owed—more than $1,000. Unable to pay, she was jailed for four days and separated from her children.
This domestic violence survivor felt betrayed by the police who arrested her for unpaid fines rather than pursuing her abuser. Her feeling of alienation toward the police is a sentiment shared by many Black people in her Mississippi town.
When municipalities place their police officers and courts in the role of revenue generators, they undermine public safety and the fair and equal administration of justice. And police fail to serve those whom they were sworn to protect.
VI. Returning Municipal Courts and Police to their Rightful Role: The Biloxi Model
Despite the Supreme Court’s clear ban on debtors’ prisons more than three decades ago, they have reemerged in recent years for five principal reasons.
First, in some municipalities, judges, court staff, probation officers, police, public defenders, and municipal leaders willfully ignore clearly established law that protects the rights of the poor in the face of pressure to raise revenue.
Second, in other municipalities, the lack of standards and guidelines for judges on when to afford counsel, how to conduct ability-to-pay hearings, and what alternatives to incarceration to
12 consider contributes to the improper use of threats of jail and incarceration to elicit payment toward fines and fees.
Third, due to the profit motive, probation officers employed by for-profit companies, at best, will fail to assist and, at worst, will actively undermine, courts’ ability to identify indigent people whose fines and fees should be reduced or waived.
Fourth, the imposition of additional fees, costs, and assessments that seek to recoup the cost of the justice system or raise revenue for public services leads to large debt burdens that poor people can never pay.
And fifth, states that suspend or revoke driver’s licenses for nonpayment of fines and fees without ensuring that only those who have willfully failed to pay are sanctioned criminalize the poor, leading to more tickets, more fines and fees, and greater risk of jail.
These problems appear daunting. But we have readily available solutions to address each one of them. The response of the City of Biloxi (“Biloxi”), Mississippi to an ACLU lawsuit illustrates exactly what municipalities can do to chart a different path.
In October 2015, the ACLU brought a class action lawsuit in federal court against Biloxi and JCS to challenge the widespread arrest and jailing of poor people pursuant to failure-to-pay warrants without prior procedural protections. This past Tuesday, the lawsuit was settled with Biloxi’s adoption of sweeping reforms that provide a powerful model for protecting the rights of the poor while punishing and deterring offenses.48
The Biloxi reforms include dozens of best practices. There are ten components that explicitly push back against the use of courts and the police to generate municipal revenue.
1. Elimination of For-Profit Probation. Under Biloxi’s new court procedures, for-profit probation companies will no longer be used to collect fines and fees by June 1, 2016. By eliminating the profit incentive from its collections process, Biloxi has sent a powerful message that for-profit companies do not help judges protect constitutional rights when collecting fines and fees or deterring and punishing crime.49
2. Adoption of Detailed Court Procedures and a “Bench Card.” Biloxi has adopted detailed court procedures and a “bench card” to guide judges on how to avoid sending people to jail because they are unable to pay court fines and fees. The procedures address how to protect constitutional rights to counsel and to procedural due process at every stage at which fines and fees are imposed or collected, including initial appearance,
48 See Stipulated Settlement Agreement, Exhibit A, Exhibit B, Kennedy v. City of Biloxi, No. 1:15-cv-00348-HSO- JCG (S.D. Miss. Mar. 15, 2016) [hereinafter Stipulated Settlement Agreement], https://www.aclu.org/sites/ default/files/field_document/final_stipulated_settlement_agreement_exhibit_a_exhibit_b_03152016_0.pdf. 49 See id. ¶ 2.
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sentencing, and enforcement.50 Judges, court staff, police, prosecutors, and public defenders will be trained on these new procedures.51
3. Judges’ Consideration of Ability to Pay at Sentencing. Judges will consider a defendant’s ability to pay at sentencing when setting the amount of fines and fees to prevent the imposition of crippling fine and fee burdens that poor defendants cannot hope to repay.52 Judges are encouraged to reduce or waive the amount of fines and fees based on ability to pay, and to consider alternatives to fines and fees, including community service and participation in approved job skills training, education, mental health, drug treatment, and other counseling programs.53
4. Establishment of a Full-Time Public Defender’s Office. Biloxi has established a public defender’s office to ensure that every indigent person is provided the benefit of counsel at no cost whenever it is required. This includes sentencing proceedings that involve the imposition of jail or probation for fine or fee collection or in which the judge wishes to preserve her ability to impose jail or probation in the future. It also includes any hearing at which an indigent person faces possible incarceration for nonpayment of fines and fees.54 A lawyer is able to raise the issue of ability to pay and present compelling evidence of a defendant’s financial situation, efforts to abide by their court obligations, and the availability of alternative punishments, such as a waiver, reduction in the amount of fines and fees owed, or community service.
5. Termination of Failure-to-Pay Warrants and Establishment of Compliance Hearings. Biloxi has eliminated the use of failure-to-pay warrants, including capias and capias pro finem warrants ordering the immediate arrest and jailing of people for unpaid fines and fees.55 Instead, it will send advisement of rights forms to people charged with nonpayment and hold Compliance Hearings in which judges will inform people of their right to request court-appointed counsel, appoint counsel for indigent people facing possible incarceration, conduct ability-to-pay hearings, and consider alternatives to incarceration for those unable to pay.56
6. Alternatives to Incarceration Without Additional Participation Fees. Biloxi Municipal Court judges will not impose additional fees or interest on anyone sentenced to a payment plan or to the performance of community service or an approved job skills training, mental health counseling, or drug treatment program as an alternative to incarceration for nonpayment.57
7. Adoption of a Clear Standard for Determining Inability to Pay. Biloxi Municipal Court judges will find that a person is “unable to pay” a fine or fee if, in the totality of the
50 See id. Exhibit A, Exhibit B. 51 See id. ¶ 12. 52 See id. Exhibit A at 2; Exhibit B at 2. 53 See id. Exhibit A at 5; Exhibit B at 2. 54 See id. Exhibit B at 1. 55 See id. ¶ 12(b); Exhibit B at 2. 56 See id. ¶ 1(b); Exhibit A at 2; Exhibit B at 1. 57 See id. ¶ 1; Exhibit A at 2.
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circumstances, payment will impose “substantial hardship” on the person or her dependents. Judges will presume that a person is “unable to pay” when she earns below 125% of the relevant Federal Poverty Guideline, is homeless, is incarcerated, or resides in a mental health facility.58 Any finding that a person is able to pay must be supported by evidence in the record, and all findings and supporting evidence must be made on the record or in writing.
8. Limitation on Jail for Nonpayment. The Biloxi Municipal Court will not impose a jail sentence for nonpayment unless it finds, based on evidence in the record, that a person willfully failed to pay (i.e., that the person had the resources to pay, but did not do so), that a person failed to make sufficient bona fide efforts to secure the money by earning or borrowing it, or that a person is unable to pay, but alternatives to incarceration are not adequate.59 Judges are required to be mindful of the Supreme Court’s recognition in Bearden that the government’s interest in punishment and deterrence can often be served by alternatives to jail.60
9. Limitation on Third Party Collections. The Biloxi Municipal Court will only send a case to collections by a third party, private debt collector that uses civil debt collection mechanisms after holding a Compliance Hearing and determining that nonpayment was willful or that the person failed to make bona fide efforts to acquire the money to pay.61
10. Robust Procedural Protections Before Reporting Nonpayment Pursuant to Driver’s License Suspension Statute. The Biloxi Municipal Court will report people for failure to “timely pay” traffic fines and fees to the Mississippi Commissioner of Public Safety as required by Miss. Code Ann. § 63-1-53 only after holding a Compliance Hearing concerning the nonpayment charge.62 This ensures that Biloxi abides by its statutory obligation to report those who have not “timely paid,” while protecting against the unnecessary suspension of driving privileges for people whose nonpayment was not willful.63
The policy reforms adopted by Biloxi are meaningful and transformative. They provide workable standards and guidelines for protecting constitutional rights while imposing and collecting fines and fees. They eliminate profit-motivated actors and return judges, court staff, probation officers, police, and public defenders to their roles as public servants.
These reforms address every recommendation made by the U.S. Department of Justice earlier this week when it issued a letter calling on State Chief Justices and Court Administrators to
58 See id. Exhibit A at 4; Exhibit B at 3. 59 See id. Exhibit B at 3. 60 Id. 61 See id. Exhibit A at 6; Exhibit B at 4. 62 See id. ¶ 1(g). 63 Miss. Code Ann. § 63-1-53.
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ensure their court rules and procedures comply with due process, equal protection, and sound public policy.64
Municipalities and municipal court judges around the country should heed the call of the Department of Justice. Biloxi has given them a clear roadmap on how to do so.
VII. Recommendations for the U.S. Commission on Civil Rights
We comment the Commission for holding this briefing on whether pressures to generate revenue are distorting the role of municipal policing and courts. The ACLU’s work across the country shows that this problem is prevalent in a wide variety of places with serious and negative consequences on people involved in justice systems, their families and communities, and the public at large.
We urge the Commission to take three further steps to address this problem.
First, we request that the Commission issue a written report on this briefing that highlights: (1) specific municipal practices that lead to the jailing of low-income people in violation of their constitutional rights, including those fostered by pressure to raise municipal revenue; (2) the negative consequences of such practices on low-income communities, communities of color, and public safety; and (3) the prevalence of these practices nationwide.
Second, we urge the Commission to recommend best practices that municipalities and municipal courts should adopt to ensure that their justice systems protect constitutional rights in the imposition and collection of fines and fees. We encourage the Commission to support the Biloxi reforms as a model for other cities to follow.
Finally, we request that the Commission hold an additional briefing on the role of for-profit companies, including for-profit probation companies, in municipal policing and court practices and the way in which profit motives distort the justice system’s ability to administer justice fairly and equally.
We thank the Commission and look forward to continued discussions of these issues of public concern.
64 U.S. Department of Justice, Civil Rights Division, Letter from Principal Deputy Assistant Attorney General Vanita Gupta and Director Lisa Foster to State Chief Justices and Court Administrators Concerning the Enforcement of Fines and Fees in State and Local Courts (Mar. 14, 2016), https://www.justice.gov/crt/file/832461/download.
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APPENDIX EXHIBIT A
BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
No person shall be imprisoned solely because she/he lacks the resources to pay a fine, state assessment, fee, court cost, or restitution (collectively, “legal financial obligation” or “LFO”), or because she/he is unable to perform any required community service.
A person alleged to have not paid an LFO has the right to an ability-to-pay hearing and the right to have legal counsel present for representation to defend against possible incarceration for failure to pay. An indigent person facing possible incarceration for LFO nonpayment has an affirmative right to representation by court-appointed counsel at no cost in LFO collection proceedings.
To protect these and other rights, all Biloxi and private company personnel, if any, involved in LFO collection and evaluation of performance of community service imposed by the Biloxi Municipal Court shall abide by the following policies and procedures.
I) FIRST APPEARANCE - APPOINTMENT OF COUNSEL
The Court may appoint counsel to represent an indigent defendant charged with a misdemeanor offense punishable by confinement. The Court shall determine indigence for purposes of appointing counsel by using the attached Affidavit of Indigence (Form Three) and by considering any other relevant factors.
When the Court determines that representation is required at the plea, trial, sentencing, or post- sentencing stage, it must appoint counsel to represent an indigent defendant, unless there is a knowing, voluntary, and intelligent waiver of the right.
II) SENTENCING
Counsel
A defendant is entitled to representation by counsel prior to the Court’s decision to impose a sentence of incarceration or probation for the collection of a fine, state assessment, fee, court cost, or restitution—absent a knowing, voluntary, and intelligent waiver of the right to counsel, as confirmed by an on-the-record colloquy with the Court. If the Court contemplates imposing incarceration or probation on an unrepresented defendant, or wishes to preserve its right to impose a jail sentence in the future, on an unrepresented defendant, the Court must conduct an indigence determination by using the attached Affidavit of Indigence (Form Three), and by considering any other relevant factors, to evaluate whether the defendant is entitled to court-appointed counsel at no cost.
If the Court determines that the defendant is not indigent, it may provide the defendant a continuance to permit retention of counsel. If the defendant seeks to waive the right to counsel at sentencing, the Court must conduct a colloquy to determine that any waiver is knowing, voluntary, and intelligent.
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BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
Imposition of Sentence
The Court shall assess ability to pay at sentencing when setting the amount of any fine, fee, court cost, or restitution. The Court’s decision to impose jail time shall not be influenced by any finding that the defendant lacks the resources to pay a fine, state assessment, or restitution.
When the Court imposes a sentence that includes an LFO, the Court shall:
(1) determine whether the defendant can pay in full that day, or needs additional time;
(2) set the terms of a Payment Plan by which LFO payments shall be made to the Biloxi Municipal Court Clerk, if the defendant cannot pay in full on sentencing day;
(3) set forth the sentence, including any Payment Plan terms, in a written order indicating the final date by which LFOs must be paid;
(4) provide the defendant the attached Advisement of Rights and Obligations Related to Legal Financial Obligations and Community Service (Form Two); and
(5) provide the defendant the attached LFO Inability to Pay Guide (Form Four).
No person unable to pay LFOs in full on sentencing day will be charged additional fees, costs, or interest for being placed on a Payment Plan with the following exception: a surcharge may be imposed on a defendant who chooses to make an LFO payment by credit card or debit card.
Advisement of Defendant’s Responsibility to Inform the Court of Mailing Address Changes
The Court shall advise the defendant of her/his duty to inform the Court of any future changes to the defendant’s mailing address and that failure to attend any future Compliance Hearings due to non-receipt of a hearing notice by mail may result in the issuance of an arrest warrant for failure to appear (FTA).
As soon as reasonably possible after a defendant has a change of mailing address, the defendant shall deliver to the Biloxi Municipal Court Clerk at 170 Porter Avenue, Biloxi, Mississippi 39530 the Notice of Change of Address (Form Two A). The defendant may deliver the notice by U.S. Mail, by hand delivery to the Biloxi Municipal Court Administrator/Clerk’s office, or by email to [email protected]. The Notice of Change of Address may be accessed at http://www.biloxi.ms.us/ChangeOfAddressForm.
III) COMPLIANCE HEARINGS
The Court shall set a Compliance Hearing, by using the attached Biloxi Municipal Court Order Setting Compliance Hearing (Form One), for every person who is sentenced to LFOs and/or community service and who is alleged to have failed to meet the requirements of the Court’s imposed sentence.
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BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
The Order (Form One) will be sent by regular U.S. Mail to the defendant’s last known address with the Advisement of Rights and Obligations for LFOs and Community Service (Form Two) and the LFO Inability to Pay Guide (Form Four).
The Order (Form One) will provide the defendant with thirty (30) days notice of the Compliance Hearing date and time.
If the Court will impose a jail sentence or wishes to preserve its right to impose a jail sentence in the future, the Court shall appoint counsel at no cost to represent an indigent defendant at a Compliance Hearing unless there is a knowing, voluntary, and intelligent waiver of the right to counsel. The Court shall determine indigence by using the attached Affidavit of Indigence (Form Three) and by considering any other relevant factors.
If the Court determines that the defendant is not indigent, it may provide the defendant a continuance to permit retention of counsel. The Court will document its finding that the defendant was, or was not, indigent and provide evidence in the record to support any finding of non- indigence.
For indigent defendants, the Court will document that a public defender was appointed for the defendant and appeared with the defendant at the Compliance Hearing or that the public defender was offered and that after the Court conducted a colloquy, the defendant knowingly, voluntarily and intelligently waived his/her right to an attorney.
Hearing Procedures and Standards
The Court must advise defendants of the following information set forth in the Bench Card:
1. all defendants’ right to an ability-to-pay hearing prior to jailing for nonpayment of fines, fees, state assessments, court costs, or restitution;
2. all defendants’ right to be represented by legal counsel for defense against possible incarceration for failure to pay LFOs;
3. indigent defendants’ right to court-appointed counsel at no cost to defend against possible incarceration in proceedings concerning nonpayment of LFOs;
4. that ability to pay, efforts to secure resources, and alternatives to incarceration are critical issues in a Compliance Hearing;
5. the type of information relevant to determining ability to pay;
6. the potential penalties if a defendant is found to have willfully failed to pay an LFO; and
3
EXHIBIT A
BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
7. that any waiver of the right to counsel or the right to court-appointed counsel must be knowing, voluntary, and intelligent.
The defendant must be given an opportunity to present evidence that the amount allegedly owed is not accurate, or is not in fact owed, if the defendant believes that the amount is not correct.
In Compliance Hearings the Court shall consider, and make findings on, the defendant’s ability to pay, efforts to secure resources, and, if the defendant is found to be unable to pay, the adequacy of alternatives to incarceration.
The Court will document its actions, findings, and evidence in support of its findings, including the Court’s decision on whether the defendant is able to pay LFOs or has willfully failed to pay, whether the defendant made adequate efforts to secure resources, and, if the defendant is found to be unable to pay, whether alternatives to incarceration are adequate to achieve the City’s interests in punishment and deterrence.
Ability to Pay
To determine ability to pay, the Court shall use the Affidavit of Indigence (Form Three) and inquire on the topics set forth in the LFO Inability to Pay Guide (Form Four), as well as any other factors considered by the Court to be relevant.
Any determinations that the Court makes regarding ability to pay or willfulness of nonpayment shall be guided by the Bench Card, and applicable law.
If a defendant is represented, the Court shall provide the defendant with adequate time to privately confer with defense counsel on the issue of ability to pay prior to the Court’s ability-to-pay inquiry.
During the hearing, the Court shall carefully consider the defendant’s responses to each question before making any determination regarding ability to pay and whether nonpayment was willful. If a defendant is unable to provide the information requested by the Court during an ability-to-pay inquiry, the Court shall consider allowing the defendant (and, if applicable, counsel) additional time to gather information to respond to the Court’s questions.
The Court shall find that a defendant is unable to pay LFOs when, in consideration of the totality of the circumstances, it finds that the payment of LFOs would impose substantial hardship on the defendant or the defendant’s dependents, including children and elderly parents. There shall be a rebuttable presumption that a person is unable to pay LFOs upon a finding of at least one of the following factors:
1. the defendant’s annual income is at or below 125% of the federal poverty level for his or her household size according to the current Federal Poverty Level (“FPL”) chart;
2. the defendant is homeless;
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EXHIBIT A
BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
3. the defendant is incarcerated; or
4. the defendant resides in a mental health facility.
Efforts to Secure Resources
In inquiring into, and making a determination on, the reasonableness of a defendant’s efforts to acquire resources to pay LFOs, the Court shall consider the defendant’s efforts to earn money, secure employment, and borrow money, as well as any limitations on the defendant’s ability to engage in such efforts due to homelessness, health and mental health issues, temporary and permanent disabilities, limited access to public transportation, limitations on driving privileges, and other relevant factors.
Alternatives to Incarceration
If the Court determines that a person is unable to pay fines, fees, court costs, restitution, or state assessments, it shall consider alternative methods of achieving the City’s interest in punishment and deterrence as set forth in the Bench Card, and shall be guided by the Supreme Court’s recognition that the government’s “interest in punishment and deterrence can often be served fully by alternative means” to incarceration. Bearden v. Georgia, 461 U.S. 670, 671–72 (1983). These alternatives to incarceration shall include the following:
1. Reduction of the amount of fines, fees, court costs, and restitution imposed;
2. Waiver or Suspension of the fines, fees, court costs, and restitution imposed;
3. Community Service credit toward the discharge of fines, fees, state assessments, court costs, or restitution owed to Biloxi. Biloxi Municipal Court Judges shall not impose a fee for those who participate in community service. Biloxi Municipal Court Judges will attempt to provide sufficient variety of opportunities for community service to accommodate individuals who have physical or mental limitations, who lack private transportation, who are responsible for caring for children or family members, or who are gainfully employed;
4. Extension of the amount of time for payment of the fines, fees, state assessments, court costs, and restitution imposed;
5. Completion of Approved Job Skills Training and Educational, Drug Treatment, Counseling and Mental Health Programs as an alternative or in addition to community service toward the discharge of fines, fees, state assessments, court costs, and restitution owed to Biloxi; and
6. Any other disposition deemed just and appropriate, in the discretion of the Court, pursuant
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EXHIBIT A
BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
to applicable law.
Imposition of Jail
The Court may not impose jail for failure to pay an LFO without making at least one of the following written findings based on evidence:
1. the defendant’s failure to pay was willful;
2. the defendant failed to make sufficient bona fide efforts to acquire the resources to pay; and/or
3. the defendant was unable to pay, despite having made sufficient efforts to acquire resources, but alternative methods for achieving punishment or deterrence, including a reduction or waiver of the fine or restitution, an extension of time to pay, community service, and completion of approved programs are not adequate.
The Court may never impose jail solely because a defendant lacks the resources to pay a fine, fee, court cost, state assessment, or restitution.
Collections By Third Party Contractors
The Court may send a case to collections by a third-party contractor if a defendant has failed to make LFO payments in accordance with a Payment Plan and the Court has determined, after holding a Compliance Hearing in accordance with the procedures described herein, that:
1. the defendant has the ability to pay, but has refused or failed to pay the fine, fee, court costs, restitution, or state assessment owed; or
2. the defendant is unable to pay the LFO, but has failed to make sufficient bona fide efforts to seek employment, borrow money, or otherwise secure resources in order to pay a fine, fee, court cost, state assessment or restitution.
In any civil execution, attachment, and/or wage garnishment proceeding to collect unpaid LFOs, the defendant is entitled to the exemptions and exclusions found in Miss. Code Ann. § 85-3-1.
IV. FAILURE TO APPEAR
If a defendant fails to appear for a Compliance Hearing after the Court has mailed thirty (30) days notice of the Compliance Hearing to the address provided by the defendant, the Court may issue a warrant for failure to appear (FTA). It is defendant’s duty and responsibility to notify immediately the Municipal Court of any change in her/his address.
All efforts must be made to serve the FTA warrant during business hours on a weekday. Upon arrest pursuant to an FTA warrant, the defendant should be brought directly to Municipal Court instead of being taken to the Harrison County Adult Detention Center. At that time, the Court will 6
EXHIBIT A
BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE have the defendant complete an Affidavit of Indigence (Form Three) to determine whether the defendant is entitled to court-appointed counsel at no cost. On traffic tickets and other misdemeanor charges that will be fine only, if a defendant is arrested on a weekend, weekday night, holiday, or any other time when Court is not in session, the arresting officer will contact a Biloxi Municipal Court Judge by telephone before transporting the defendant to Harrison County Adult Detention Center, at which time the Judge will authorize release of the defendant on his or her own recognizance until the next Biloxi Municipal Court plea or hearing date.
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EXHIBIT A
BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
FORM ONE
BILOXI MUNICIPAL COURT ORDER SETTING COMPLIANCE HEARING 170 Porter Avenue, Public Safety Building, First Floor, Biloxi, MS 39530
CASE NUMBER: DEFENDANT NAME: COMPLIANCE HEARING DATE: TOTAL BALANCE DUE: Fines: State Assessments: Fees: Court Costs: Restitution: PAYMENT PLAN SCHEDULE: COMMUNITY SERVICE HOURS REQUIRED AND COMPLETION DATE: OTHER PROGRAM HOURS REQUIRED AND COMPLETION DATE:
You have been charged with the failure to pay and/or the failure to complete community service and/or an approved program as required by the Biloxi Municipal Court.
Payment Options
You may pay the Biloxi Municipal Court Clerk the full amount of your fines, fees, state assessments, court costs, or restitution (“legal financial obligations” or “LFOs”) today or at any point prior to your Compliance Hearing. You may also make installment payments according to the Payment Plan Schedule set forth above.
Compliance Hearing
The Court has set the above date for a Compliance Hearing when it will review the status of your payment of any LFOs and your completion of any community service or approved program imposed as part of your sentence.
You will be expected to explain to the Court the reason why you have not complied with the Court’s Order.
If you are unable to pay the Total Balance Due identified above, the Compliance Hearing offers an opportunity for you to discuss your financial situation and explain why you are unable to pay.
If you are unable to complete the community service or approved program in job skills training, education, counseling, mental health, or drug treatment, required by the specified date, you may explain why you are unable to do so.
You may ask the Court to reduce or waive any fine, fee, court cost, or restitution that you were ordered to pay, or to convert any LFO (fine, fee, court cost, state assessment, restitution) to
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If the Court determines you are indigent and cannot afford an attorney, an attorney will be appointed to represent you.
Your ability to pay is a critical issue in this hearing. You should bring with you any records to help explain the reasons for your nonpayment or non-completion of community service, including, but not limited to, pay stubs, utility bills, expenses, federal and state tax returns, documentation of disability status and/or any medical conditions, medical bills, and evidence of efforts to earn or borrow money to satisfy your obligations to the Court and/or to gain paid employment.
______Biloxi Municipal Court Judge
IT IS YOUR DUTY AND RESPONSIBILITY TO NOTIFY IMMEDIATELY THE MUNICIPAL COURT OF ANY CHANGE IN YOUR ADDRESS.
Attachments: Form 2: Advisement of Rights and Obligations for Legal Financial Obligations and Community Service Form 2A: Notice of Change of Address Form 4: LFO Inability to Pay Guide
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FORM TWO
BILOXI MUNICIPAL COURT ADVISEMENT OF RIGHTS AND OBLIGATIONS FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
What is a “Legal Financial Obligation” or “LFO”?
Any fine, fee, state assessment, court cost, or restitution imposed on you by the Court.
Do I have to attend the Compliance Hearing?
THIS HEARING IS MANDATORY. According to the Court records, you have failed to meet the requirements of the Court’s imposed sentence.
You MUST attend if you are unable to pay the Total Balance Due or complete the community service hours or participation in any job skills, education, counseling, mental health, or drug treatment required on your Biloxi Municipal Court Order Setting Compliance Hearing before the hearing date identified on the Order.
What will happen if I do not attend?
A warrant may be issued for your arrest for failure to appear in court.
Do I have a right to a lawyer?
Anyone may be represented by a lawyer at this Court proceeding. If you are found to be indigent, you have the RIGHT TO A COURT-APPOINTED ATTORNEY TO REPRESENT YOU AT NO COST at your Compliance Hearing.
The Court will use an Affidavit of Indigence to determine whether you are indigent and have the right to be represented by a court-appointed attorney at no cost.
The Court will provide you the form at the hearing.
What is the benefit of being represented by a lawyer at my Compliance Hearing?
A lawyer can help you assert your rights, prepare and present financial hardship documentation to the Court, and argue against jail and for alternatives to incarceration, if you are unable to pay any fine, fee, state assessment, court cost, or restitution.
Do I have to pay for a lawyer to represent me at the Compliance Hearing?
Yes, unless you are found to be indigent by the Court. If the Court finds you are indigent, the Court will appoint a lawyer to represent you at no cost to you.
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If the Court appoints an attorney to represent me, when will the attorney prepare my case?
If the Court appoints an attorney to represent you at the Compliance Hearing, it will set a new date and time for the Compliance Hearing. Before that date, your attorney can help you complete the enclosed LFO Inability to Pay Guide and any other forms that the Court deems necessary, and to gather supporting documents. It is your responsibility to contact your appointed attorney for preparation and conference purposes.
You MUST attend the Compliance Hearing at the new date and time.
What will happen at my Compliance Hearing?
You will be expected to explain to the Court the reason why you have not complied with the Court’s Order.
If you report that you are unable to pay LFOs, the Court will use the LFO Inability to Pay Guide and the Affidavit of Indigence, and will consider any other relevant information to inquire and make a decision about your finances.
This inquiry may include, among other things, asking you about your income, bank accounts, expenses (for example: rent, childcare, utilities, food, clothing, medical bills, transportation, etc.), and your property and other assets.
The Court may also inquire about your efforts to obtain money to pay, including your efforts to borrow money, your job search efforts and job skills, and any relevant limitations to your ability to work or secure work, including your disability, homeless status, health and mental health conditions, driving, and transportation limitations.
You should be prepared to present any DOCUMENTS showing your income, efforts to find work, expenses, disability or homeless status, receipt of needs-based public assistance, residence in a mental health facility, other LFOs, health conditions, driving, and transportation limitations.
Based on your ability to pay, you may be ordered to perform community service or be placed on a monthly Payment Plan with the Court.
Can I be JAILED for not being able to pay?
Yes, but there are protections to ensure that you are NOT JAILED solely because you are unable to pay LFOs.
1. The Court MAY IMPOSE JAIL for nonpayment of a FINE, FEE, COURT COST, or RESTITUTION ONLY IF it concludes, based on evidence, that:
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you ARE ABLE TO PAY, BUT WILLFULLY FAILED to pay;
you FAILED TO MAKE SUFFICIENT EFFORTS to secure money to pay; or
there are NO ADEQUATE ALTERNATIVES to incarceration.
2. The Court CANNOT jail you for LFO nonpayment if you are indigent and you are not represented by a lawyer and have not validly waived your right to counsel.
Can I be jailed for not being able to complete my community service or a required job skill training or program in education, counseling, mental health, or drug treatment?
Yes, but you CANNOT be jailed for non-completion of community service or a program UNLESS you WILLFULLY failed to perform community service or complete the program despite having the ability to do so.
If the Court determines that you have a disability, illness, or other circumstances that would prevent you from performing community service or completing the program, you will not be required to complete it.
What if the terms of my probation require me to pay LFOs or to complete community service or a required program?
Your probation may be revoked and you may be jailed for failing to comply with these terms of your probation ONLY IF the Court determines that: • you have the ability to pay the LFO, or the ability to complete community service and/or the required program, but failed to do so; • you failed to make sufficient efforts to acquire the resources to pay or perform community service and/or complete the required program; • even though you are unable to pay, and you made sufficient efforts to acquire resources, the alternatives to incarceration are not adequate.
What if I am unable to pay?
If the Court determines that you are unable to pay fines, fees, court costs, or restitution, the Court will consider alternatives to incarceration including reducing, suspending or waiving the amount owed, extending the time to pay, or any other disposition deemed just and appropriate, in the discretion of the Court. The Court will also consider converting fines, fees, state assessments, court costs, and restitution owed to Biloxi to community service or the requirement to complete a training treatment or other program.
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What if the “Total Balance Due” amount on my Biloxi Municipal Court Order Setting Compliance Hearing is incorrect?
You may ask the Biloxi Municipal Court Clerk to provide you with a balance history that shows the amount of fines, state assessments, fees, court costs or restitution imposed and the application of any payments you have made.
If you believe the information provided to you is incorrect, you may discuss this with your attorney and raise it with the judge at your Compliance Hearing.
What if I change my mailing address before I pay my LFO in full or complete my required program?
As soon as reasonably possible after a change of mailing address, you should complete the Notice of Change of Address (Form Two A) and deliver it to the Biloxi Municipal Court Clerk at 170 Porter Avenue, Biloxi, Mississippi 39530, either by U.S. Mail, by hand delivery to the Biloxi Municipal Court Administrator/Clerk’s office, or by email to [email protected]. The Notice of Change of Address may be accessed at http://www.biloxi.ms.us/ChangeOfAddressForm.
IT IS YOUR DUTY AND RESPONSIBILITY TO NOTIFY IMMEDIATELY THE MUNICIPAL COURT OF ANY CHANGE IN YOUR ADDRESS.
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FORM TWO A
NOTICE OF CHANGE OF ADDRESS
The undersigned defendant hereby gives notice to the Biloxi Municipal Court of the following change of my residential and, if different, mailing addresses:
...... Previous Residential Address
...... New Residential Address
...... Previous Mailing Address
...... New Mailing Address
...... Telephone Number
...... Email Address (if any)
______SIGNATURE DATE
RETURN THIS FORM TO THE OFFICE OF THE BILOXI MUNICIPAL COURT CLERK AT 170 PORTER AVENUE, BILOXI, MISSISSIPPI 39530 EITHER BY HAND- DELIVERY, BY U.S. MAIL, OR BY EMAIL TO [email protected].
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FORM THREE
AFFIDAVIT OF INDIGENCE In the Municipal Court of the City of Biloxi, Mississippi
CITY OF BILOXI v. Case No.______Defendant
Name:______Residential Address:______City:______State:______ZIP:______
1. Public Benefits/ Government Assistance received based on indigence: □ SSI □ WIC □ Food Stamps/SNAP □ TANF □ Medicaid □ CHIP □ AABD □ Needs-based VA Pension □ Pregnant Women Assistance Benefits □ LIS in Medicare (“Extra Help”) □ Refugee Settlement Benefits □ Emergency Assistance □ County Assistance, County Healthcare, or General Assistance (GA) □Public Housing □ Community Care via DADS □ Low-Income Energy Assistance □ LIS in Medicare (“Extra Help”) □ Child Care Assistance under Child Care and Development Block Grant □ Other ______
2. Employment Status: a. Do you have a job?______b. How much do you make per hour? $_____.____ c. How many hours do you work per week?______
Employer’s Name:______Employer’s Address:______City:______State:______ZIP:______
d. If you don’t have a job, how long have you been unemployed? ______
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3. Monthly Income Other Income not on list $______Total Work Income (salary, $______Total Monthly Income à wages, tips, commissions, $______overtime, allowances) (pre- _ tax) 3a. Other Income Not Received Spousal Work Income $______Monthly Type of Income $______Alimony Received $______Child Support Received $______Total Other Income à $______Unemployment $______Compensation 4. Assets Social Security/ Pension / $______Cash on Hand $______Retirement Real Property $______Trusts $______(home/land)
Veteran’s Benefits $______Non-Homestead Real $______Property Other Income from $______Family Members (not Dividends, Interest, $______spousal income or child Royalties support) Motor Vehicle(s) Value $______
Dividends or Interest $______Certificates of Deposit $______Payments Boats $______Life Insurance Payments $______Stocks/Bonds $______Rental Income $______Savings Accounts $______Worker’s Compensation $______Checking Accounts $______Disability $______Money Market Accounts $______Union Payments $______Trusts $______Gifts $______Other Assets Not on List $______Inheritance $______Total Assets à $______Income Tax Refund $______16
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5. Liabilities and Debts LFOs in other cases (fines $______Motor Vehicle $______fees, state assessments, court costs, or restitution) Home $______
$______Other Real Property $______Total Monthly Expenses à _ Child Support Paid $______
Student Loans
Credit Cards $______
Medical Bills $______
Other $______
$______Total Liabilities and Debts à _
6. Monthly Expenses Rent/ House Payments $______
Food and Supplies $______
Utilities $______
Clothing $______
Medical and Dental $______
Insurance $______
School and Child Care $______
Vehicle Payments $______
Travel/ Commute $______
Wages Withheld by Court $______
Debt Payments (student $______loan, credit card, etc.)
Other Expenses (Describe) $______
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8. Family and Dependents
a. Do you have any children residing with you? Yes_____ No If so, how many? ______Age(s)? ______b. Including yourself, how many people in your household do you support? ______c. Marital Status (check one) __Married __Single __Separated ____Widowed __Divorced Spouse’s Name:______Spouse’s Address:______City:______State:______ZIP:______d. Does your spouse have a job? ______Where? ______e. Are you less than 18 years old? ______If yes, please provide the following: Father’s name:______His monthly income $______Mother’s name:______Her monthly income $______
9. Please Read and Sign the Following:
I am unable to pay court costs. I verify under penalty of perjury that the statements made in this affidavit are true and correct. I understand the Court may require verification of the information provided above. I agree to immediately report any change in my financial status to the court.
I also understand and agree that the Court may mail important notices to me at the address I provided above and that I have a duty to immediately inform the Court of any change in my address. Failure to do so could result in my failure to receive important notices and lead to the issuance of a warrant for my arrest.
→ ______Your Signature Date
IT IS YOUR DUTY AND RESPONSIBILITY TO NOTIFY IMMEDIATELY THE MUNICIPAL COURT OF ANY CHANGE IN YOUR ADDRESS.
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FORM FOUR LFO INABILITY TO PAY GUIDE Name:______Attorney Name:______Case Number: ______Address:______City:______State:______ZIP:______
INCOME Approximate Monthly Amount Do you have a job? Your wages/salary: $______How much do you make per hour? How many hours do you work per week? Occupation: Employer’s name, address and phone number:
How long worked there: Spouse/partner’s monthly wages/salary: $______Unemployment Compensation Received: $______If you don’t have a job, how long have you been unemployed? Social Security/Pension/Retirement Received: $______Worker’s Compensation: $______Disability: $______Union Payments: $______Gifts: $______Trusts: $______Alimony Received: $______Child Support Received: $______Income from Family Members: $______Stocks/Bonds: $______Rental Income: $______Dividends or Interest: $______Life Insurance Payments: $______Inheritances: $______Income Tax Refund: $______
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Monthly amount received from public assistance programs: $______o Basic Food (SNAP) o WIC o SSI o Pregnant Women Assistance Benefits o Medicaid o CHIP o Poverty-Related Veterans’ Benefits o Temporary Assistance for Needy Families o Refugee Settlement Benefits o Aged, Blind or Disabled Assistance Program o Public Housing o Other: ______Other sources of income: $ ______APPROXIMATE TOTAL MONTHLY INCOME: $ ______MONTHLY EXPENSES Approximate Monthly Amount Wages (garnishments) taken from your paycheck: $______Rent/mortgage (your share): $______Utilities (electricity, water, garbage, telephone, etc.): $______Food: $______Travel/Commute: $______Health care (out-of-pocket medical/dental costs, prescriptions, insurance, debt payments) $______Child support, spousal maintenance, and loan payments: $______Child Care and School: $______Vehicle Payments: $______Court-ordered fines, fees, and restitution – monthly payment amount: $______Credit cards and other debt payments: $______Other basic living costs (diapers, clothing, etc.) Describe: ______$ ______APPROXIMATE TOTAL MONTHLY EXPENSES: $ ______ASSETS Approximate Monthly Amount Cash on Hand: $______Checking Accounts: $______Savings Accounts: $______Money Market Accounts: $______Dividends, Interest, Royalties: $______Certificates of Deposit: $______Stocks/Bonds: $______Trusts: $______Other: $______
APPROXIMATE TOTAL ASSETS: $ ______
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OTHER ASSETS Approximate Value Real Property (home/land): $______Non-Homestead Real Property: $______Motor Vehicle(s): $______Boat(s): $______
APPROXIMATE TOTAL OTHER ASSETS: $ ______
CURRENT OUTSTANDING DEBTS Approximate Amount Credit cards, personal loans, and other installment debt: $______Motor Vehicle: $______Home: $______Other Real Property: $______Outstanding legal financial obligations (LFOs), including other cases: $______Outstanding medical care debt: $______Child support arrears: $______Outstanding Student Loans: $______Other outstanding debt (describe): $ ______
APPROXIMATE TOTAL CURRENT DEBT: $ ______
PERSONAL INFORMATION Are you less than 18 years old? ______If yes, please provide the following: Father’s Name: ______His monthly income? $______Mother’s Name: ______Her monthly income? $______Incarceration for this and/or other offenses: ______Anticipated length of incarceration for this and/or other offenses: ______In addition to myself, I financially support ____ person/people. Age(s): ______Marital Status (Check One) Married ___ Single ___ Separated ___ Widowed ___ Divorced ___ Spouse’s Name:______Spouse’s Address:______Does your spouse have a job? ______
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Your highest level of education or vocational training, area of study:
Brief description of employment history and approximate salary/wages over the past three years:
Description of the impact of LFO payments on your immediate family (include any information regarding housing, employment, child care, transportation, and any additional information you believe to be relevant):
Impact of incarceration or jail time on your ability to pay your LFOs:
Your efforts to borrow money:
If unemployed, what efforts have you made to obtain employment upon being assessed with the fines, fees, state assessments, court costs, and/or restitution?
When was the last time you looked for a job?
Why didn’t you pay the fine and costs from any money received?
Other facts the court should know regarding future ability to pay fees and fines (if a disability or health or mental health condition has impeded your ability to secure employment or earn money, please request permission to approach the bench and tell the judge, if you would like judge to know).
IT IS YOUR DUTY AND RESPONSIBILITY TO NOTIFY IMMEDIATELY THE MUNICIPAL COURT OF ANY CHANGE IN YOUR ADDRESS.
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EXHIBIT B BENCH CARD Biloxi Municipal Court Procedures for Legal Financial Obligations & Community Service
The U.S. Constitution and Mississippi law require safeguards when collecting fines, state assessments, fees, court costs, and restitution (collectively, “legal financial obligations” or “LFOs”).1 All Biloxi Municipal Court (“BMC”) Judges shall abide by the procedures described below.
RIGHT TO COUNSEL
FIRST APPEARANCE:
When a person is brought before the Biloxi Municipal Court, and charged with a misdemeanor, the Court shall provide the defendant an opportunity to sign an Affidavit of Indigence stating that he or she is indigent and unable to employ counsel.2
The court shall use the Affidavit of Indigence, and any other relevant factors, to evaluate whether the defendant is entitled to counsel.
The court may appoint counsel to represent an indigent defendant charged with a misdemeanor punishable by confinement.3
When the court determines that representation is required at the plea, trial, sentencing, or post-sentencing stage of the proceedings, it must appoint counsel to represent an indigent defendant, unless there is a knowing, voluntary, and intelligent waiver of the right to counsel.4 SENTENCING:
A defendant is entitled to the assistance of counsel before being sentenced to incarceration or probation for the collection of a fine, fee, court cost, state assessment, or restitution, unless there is a knowing, voluntary and intelligent waiver of the right to counsel.5
If the Court contemplates imposing incarceration or probation on an unrepresented defendant, or wishes to preserve its right to impose a jail sentence or probation in the future, the Court must conduct an indigence determination by using the Affidavit of Indigence, and considering any other relevant factors, to evaluate whether the defendant is entitled to court-appointed counsel at no cost.
COMPLIANCE HEARING:
The court must inform every person charged with failure to pay an LFO of: (1) all defendants’ right to representation by legal counsel in any proceeding concerning nonpayment; (2) indigent defendants’ right to court-appointed representation at no cost when facing possible incarceration for failure to pay LFOs.
The Court must appoint counsel to represent indigent people who face the possibility of incarceration due to nonpayment of an LFO, including in Compliance Hearings and Probation Revocation Hearings, unless there is a knowing, voluntary, and intelligent waiver of that right.
WAIVER OF RIGHT TO COUNSEL:
The Court may not accept a written or oral waiver of any right to court-appointed counsel without FIRST informing the defendant of the nature of the charges, of the defendant’s right to be counseled regarding her/his plea, and the range of possible punishments, and ensuring that any waiver is knowing, intelligent, and voluntary.
If a defendant/probationer seeks to waive his or her right to counsel, the court must conduct a colloquy on the right to inform the defendant:
(1) that the indigent defendant has a right to a court- appointed attorney or public defender at no cost;
(2) that any fee normally charged for representation by a court-appointed attorney shall be waived for indigent defendants; and
(3) the nature of the charges against the defendant, of defendants’ right to be counseled regarding his or her plea, and the range of possible punishments. 1 EXHIBIT B BENCH CARD Biloxi Municipal Court Procedures for Legal Financial Obligations & Community Service
IMPOSITION AND COLLECTION OF LFOs
SENTENCING:
The Court shall assess ability to pay when setting the amount of any fine, fee, court cost, or restitution.6 The Court should consider: (1) the defendant’s financial resources and income; (2) the defendant’s financial obligations and dependents; (3) the defendant’s efforts and ability to find and engage in paid work, including any limitations due to disability or residence in a mental health facility; (4) outstanding LFO obligations in other cases or to other courts; (5) the length of the defendant’s probation sentence, if any; (6) the goals of deterrence, retribution, and rehabilitation; (7) the Affidavit of Indigence; and (8) any other factor or evidence that the Court deems appropriate.
The Court shall also consider the ability to perform community service when setting any community service requirements.
Fines, Fees, Court Costs, and Restitution:
If the defendant is unable to pay, the Court should consider: (1) Reduction of the amount of fines, fees, court costs, and restitution imposed; (2) Waiver or Suspension of the fines, fees, court costs and restitution imposed; (3) Community Service credit toward the discharge of fines, fees, court costs, or restitution owed to Biloxi. Biloxi Municipal Court Judges shall not impose a fee for those who participate in community service. Biloxi Municipal Court Judges will attempt to provide sufficient variety of opportunities for community service to accommodate individuals who have physical or mental limitations, who lack private transportation, who are responsible for caring for children or family members, or who are gainfully employed; (4) Extension of the amount of time for payment of the fines, restitution, fees, and court costs imposed; (5) Completion of approved educational programs, job skills training, counseling and mental health services, and drug treatment programs as an alternative to, or in addition to, community service; and (6) Other disposition deemed just and appropriate, in the discretion of the Court, pursuant to applicable law.
Mandatory State Assessments: If the defendant is unable to pay, the Court should consider: (1) extending the defendant’s time to pay; (2) requiring the defendant to perform community service to satisfy the state assessment fees; (3) requiring the completion of approved educational programs, job skills training, counseling and mental health services, and drug treatment programs as an alternative to, or in addition to, community service; and (4) imposing any other disposition deemed just and appropriate, in the discretion of the Court, pursuant to applicable law.
The Court may not reduce or suspend any mandatory state assessments, including those imposed under Miss. Code Ann. § 99-19-73.
Jail: The Court’s decision to sentence a defendant to jail shall NOT solely be based on any finding that the defendant is unable to pay a fine, state assessment, court costs, fee, or restitution.
After setting the amount of any LFOs, and Community Service, and Program Requirements the Court shall: (1) Determine whether the defendant can pay LFOs in full, or needs additional time; (2) Set the terms of a Payment Plan by which LFO payments shall be made to the BMC Clerk, if the defendant cannot pay in full on sentencing day; (3) Set forth the sentence in a written order indicating the final date for payment of LFOs and performance of community service, and any Payment Plan terms; (4) Provide the defendant the Advisement of Rights and Obligations Related to LFOs and Community Service, Notice of Change of Address form, and LFO Inability to Pay Guide. REPORT OF NONPAYMENT:
Warrants: The court shall not issue any warrant directing arrest for alleged LFO nonpayment absent a Compliance Hearing as described below.
The Court shall hold a Compliance Hearing for defendants who are sentenced to LFOs, community service and/or training, treatment, counseling and mental health programs and who are alleged to have failed to meet the requirements of the Court’s sentence.
The Court shall provide at least 30 days notice of a Compliance Hearing through use of the Biloxi Municipal Court Order Setting Compliance Hearing. The Court shall also provide the Advisement of Rights and Obligations Related to LFOs and Community Service and the LFO Inability to Pay Guide when providing notice of a Compliance Hearing. 2 EXHIBIT B BENCH CARD Biloxi Municipal Court Procedures for Legal Financial Obligations & Community Service
IMPOSITION AND COLLECTION OF LFOs (continued)
COMPLIANCE HEARING:
Compliance Hearings will be audio recorded. In the event audio recording equipment is temporarily not working, the Court shall ensure that the case record includes: 1) the evidence submitted by the defendant, and 2) written documentation of the Court’s findings, supporting evidence, and colloquy concerning ability to pay, efforts to secure resources, alternatives to incarceration, and the right to counsel.
Hearing Procedures and Standards
The Court must advise defendants of:
(1) all defendants’ right to an ability-to-pay hearing prior to jailing for nonpayment of fines, fees, state assessments, court costs, or restitution; (2) all defendants’ right to be represented by legal counsel for defense against possible incarceration for failure to pay LFOs; (3) indigent defendants’ right to court-appointed counsel at no cost to defend against possible incarceration in proceedings concerning nonpayment of LFOs; (4) that ability to pay, efforts to secure resources, and alternatives to incarceration are critical issues in a Compliance Hearing; (5) the type of information relevant to determining ability to pay; and (6) the potential penalties if a person is found to have willfully failed to pay an LFO.
The Court must provide defendants an opportunity to present evidence that the amount allegedly owed is not accurate or not in fact owed if the defendant believes the amount is not correct.
As part of determining whether the failure to pay was willful and whether incarceration can be imposed, the Court shall:
1. Inquire into, and make a determination on, ability to pay LFOs, by considering the totality of the circumstances, including the defendant’s income, assets, debts, other LFO obligations, and any other information the Court deems appropriate. The Court shall use the Affidavit of Indigence and the LFO Inability to Pay Guide to conduct this inquiry.
The Court shall find that a defendant is unable to pay LFOs when, in consideration of the totality of the circumstances, it finds that the payment of LFOs would impose substantial hardship on the defendant or the defendant’s dependents, including children and elderly parents. The Court shall make a rebuttable presumption that a person is unable to pay LFOs when:
a. the defendant’s annual income is at or below 125% of the federal poverty level for his or her household size according to the current Federal Poverty Level (“FPL”) chart; b. the defendant is homeless; c. the defendant is incarcerated; and/or d. the defendant resides in a mental health facility.
2. Inquire into, and make a determination on, the reasonableness of a defendant’s efforts to acquire resources to pay LFOs.
The Court shall take into account efforts to earn money, secure employment and borrow money, as well as any limitations on the defendant’s ability to engage in such efforts due to homelessness, health and mental health issues, temporary and permanent disabilities, limited access to public transportation, limitations on driving privileges, and other relevant factors.
3. If the Court determines that a defendant is unable to pay, the Court will consider and make a determination on the adequacy of alternatives to incarceration for nonpayment of fines or restitution, including:
a. Reduction of the amount of fines, fees, court costs, and restitution imposed; b. Waiver or Suspension of the fines, restitution, fees, and court costs imposed; c. Community Service credit toward the discharge of fines, fees, state assessments, court costs, or restitution owed to Biloxi. Biloxi Municipal Court Judges shall not impose a fee for those who participate in community service. Biloxi Municipal Court Judges will attempt to provide sufficient variety of opportunities for community service to accommodate individuals who have physical or mental limitations, who lack private transportation, who are responsible for caring for children or family members, or who are gainfully employed; d. Extension of the amount of time for payment of the fines, restitution, fees, state assessments, and court costs imposed; e. Completion of approved educational programs, job skills training, counseling and mental health services, and drug treatment programs as an alternative to, or in addition to, community service; and f. Imposing other disposition deemed just and appropriate, in the discretion of the Court, pursuant to applicable law.
Judges shall be guided by the Supreme Court’s recognition that the government’s “interest in punishment and deterrence can often be served fully by alternative means” to incarceration.7
The Court will document its actions and findings and evidence in the record supporting its findings. 3 EXHIBIT B BENCH CARD Biloxi Municipal Court Procedures for Legal Financial Obligations & Community Service
IMPOSITION AND COLLECTION OF LFOs (continued)
IMPOSING JAIL FOR FAILURE TO PAY
The Court may impose incarceration following a Compliance Hearing if it makes one of the following findings, supported by evidence:
(1) a defendant has willfully refused to pay the fine, fee, court cost, state assessment, or restitution when she/he has the means to pay; (2) a defendant has failed to make sufficient bona fide efforts to seek employment, borrow money, or otherwise secure resources in order to pay the fine; or (3) the defendant is unable to pay, despite making sufficient efforts to acquire the resources to pay, and alternative methods for achieving punishment or deterrence are not adequate.8
THIRD PARTY COLLECTIONS
The Court may send a case to collections by a third-party contractor if a defendant has failed to make LFO payments in accordance with a Payment Plan and the Court has determined, after holding a Compliance Hearing in accordance with the procedures described herein, that:
(1) the defendant has the ability to pay, but has refused to pay the fine, fee, court costs, restitution, or state assessment owed; or
(2) the defendant is unable to pay the LFO, but has failed to make sufficient bona fide efforts to seek employment, borrow money, or otherwise secure the resources in order to pay a fine, fee, court cost, state assessment, or restitution.
In any civil execution, attachment, and/or wage garnishment proceeding to collect unpaid LFOs, the defendant is entitled to the exemptions and exclusions found in Miss. Code Ann. § 85-3-1.
Collecting Fines, Fees, State Assessments, Court Costs, and Restitution
Permitted Methods of Collection Impermissible Methods of Collection Voluntary Payment Payment Plan Administered by Court Imposing Jail at Sentencing Community Service (except restitution owed to Issuance of Failure-to-Pay Warrants Upon Report of a party other than Biloxi) Nonpayment Execution of Civil Judgment Forfeiture of Confiscated Money Collection by Third Party Contractors Imposing “pay or stay” sentence following Compliance Hearing and Court determination as described above.
1 Bearden v. Georgia, 461 U.S. 670, 672 (1983) (“If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures to punishment other than imprisonment.”) (Emphasis added); Miss. Code Ann. §§ 21-23-7; 25-32-9; 63-1-53; 99-15-26; 99-37-11. 2 Miss. Code Ann. § 25-32-9. 3 Miss. Code Ann. §§ 21-23-7; 25-32-9 4 Miss. Code Ann. § 25-32-9. 5 Alabama v. Shelton, 535 U.S. 654, 658 (2002). 6 Bearden v. Georgia, 461 U.S. 660, 669–70 (1983) (“[W]hen determining initially whether the State’s penological interests require imposition of a term of imprisonment, the sentencing court can consider the entire background of the defendant, including his employment history and financial resources.”). 7 Bearden v. Georgia, 461 U.S. 670, 671–72 (1983). 8 Id. at 668–69.
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