Fine Schedules and Procedural Fairness

FUNDED BY A GRANT FROM THE TEXAS COURT OF CRIMINAL APPEALS

TEXAS MUNICIPAL COURTS EDUCATION CENTER

2210 HANCOCK DRIVE, AUSTIN, TEXAS 78756 TELEPHONE 512.320.8274 1.800.252.3718 FAX 512.435.6118

Presented by

Mark Goodner, Deputy Counsel and Director of Judicial Education, TMCEC

Fine schedules have utility but also have inherent limitations. Similar to writing prospective fine amounts on arrest warrants prior to a judgment, fine schedules can be misconstrued to mean that that there is no fine range or that judges are not willing to consider the full range of punishment. Due process requires trial judges to be neutral and detached in assessing punishment. Additionally, recent statutory changes require judges to inquire into a person’s ability to pay each time a defendant enters a plea in open court. This information can be used not only to determine methods of discharge, but also to assess an appropriate fine with the statutory fine range. In this session, participants will analyze the utility and limitations of fine schedules through the lens of procedural fairness. By the end of the session, participants will be able to: 1. Describe the utility of fine schedules for uncontested charges handled outside of the courtroom; 2. Discuss the drawbacks of over-reliance on fine schedules; and 3. Analyze current fine assessment procedures for adherence to the law as well as the central tenets of procedural fairness

TMCEC IS A PROJECT OF THE TEXAS MUNICIPAL COURTS ASSOCIATION 5/17/2019

Mark Goodner, Deputy Counsel and Director of Judicial Education, TMCEC

* Art. 4.14. JURISDICTION OF MUNICIPAL COURT. (a) A municipal court, including a municipal court of record, shall have exclusive original jurisdiction within the territorial limits of the municipality in all criminal cases that: * (b) The municipal court shall have concurrent jurisdiction with the justice court of a precinct in which the municipality is located in all criminal cases arising under state law that: * (1) arise within the territorial limits of the municipality and are punishable by fine only, as defined in Subsection (c) of this article; or * (2) arise under Chapter 106, Alcoholic Beverage Code, and do not include confinement as an authorized sanction. *

*Art. 45.041. JUDGMENT. (a) The judgment and sentence, in case of conviction in a criminal action before a justice of the peace or municipal court judge, shall be that the defendant pay the amount of the fine and costs to the state. *

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*Art. 27.14. PLEA OF GUILTY OR NOLO CONTENDERE IN MISDEMEANOR. *(c) In a misdemeanor case for which the maximum possible punishment is by fine only, payment of a fine or an amount accepted by the court constitutes a finding of guilty in open court as though a plea of nolo contendere had been entered by the defendant and constitutes a waiver of a jury trial in writing.

*Gives notice to defendants what amount is acceptable to the court *Perhaps it allows courts to have some consistency *Judge to judge *Case to case *Defendant to defendant *Anything else? *

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*Judges: Over-reliance could lead to no meaningful use of the fine range *Public misconception *No fine range *Judges not willing to consider the full range *Municipal Courts are only revenue centers. *Arbitrary refusal to consider the entire range of punishment or imposes * a predetermined punishment is not due process.

*When people in the justice system perceive the procedures used and interpersonal treatment they received as fair.

*Understanding - They understood the process and how decisions were made *Voice -The authority listened to them and considered their concerns *Respect - They were treated with dignity and respect *Neutrality - The authority figure was trustworthy and trying to be fair.

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*More likely to cooperate, be pleasant, and provide needed information *More likely to accept decisions and comply with court orders *More positive perceptions of the court system overall

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*Explain in understandable language what is about to go on *Use “listening” nonverbal behaviors *Acknowledge defendants’ needs and concerns *Be and appear neutral

*Overreliance can cause misunderstanding *Include a statement that fine schedules are only for those that do not wish to make a court appearance and/or contest the charge *Include information related to alternatives to full payment *Mention that all those who enter plea in open court will have ability to pay inquiry *

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*Voice is the ability for defendants to have input *Their side of the story *Circumstances around their actions *Financial status *Contrition *Control of the process *Let defendants know how they can speak to the judge *

*May allow for respect for their time *Show respect by reminding them of their rights regarding the charge *Trial *Pay assessment

*What is message about neutrality? *Possible incorrect misperceptions: *Court is a revenue center *Less concerned with justice than money *Accusation from police justifies money owed *Court is more tied to police than citizens *Court is rubber stamp for the city *

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*Resolving citations may be a main goal a court user *Court can increase the perception of neutrality and understanding by providing more upfront information about rights and options.

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*The fine schedule is not an indication of what you owe. If you have received a citation, you do not owe anything at this time. Defendants that do not wish to appear in court, may choose to send in the amount from the schedule with knowledge that it is an amount acceptable by the court. *If you enter a plea in open court, the judge must assess your ability to pay at the time of sentencing. *If you have an inability to pay a judgment in full, the judge may provide you with an alternative means of discharge such as a payment schedule or community service. *

10 Making Meaningful Use of the Fine Range Consideration of a defendant’s ability to pay is a matter of judicial discretion. Does the Constitution require that fi nes be custom tailored to avoid disproportionate burdens on low-income defendants? No. While there are positive aspects of custom tailored fi nes, the Constitution does not require a fi ne to be custom tailored to avoid disproportionate burdens on low-income defendants. In San Antonio Independent School District v. Rodriguez (1973), the U.S. Supreme Court, citing Tate v. Short, stated that it had “not held that fi nes must be structured to refl ect each person’s ability to pay in order to avoid disproportionate burdens. Sentencing judges may, and often do, consider the defendant’s ability to pay, but in such circumstances they are guided by sound judicial discretion rather than by constitutional mandate.”1 Other than in cases involving capital punishment, the 8th Amendment does not mandate individualized sentencing. The 8th Amendment, as distinguished from the Due Process Clause, imposes no apparent limitation on the discretion of the sentencing entity, be it judge or jury, including any requirement that punishment be informed by the particular circumstances of the offense and/or the offender.2 Some judges assess the amount of the fi ne based on circumstances of the case such as the type of crime, frequency, and fl agrancy, reserving consideration of ability to pay until deciding the method of discharging the fi ne. Some judges consider ability to pay at sentencing. Both are constitutionally permissible and within the bounds of judicial discretion. Day Fines: Fines Based on a Defendant’s Earnings One proposed alternative to reduce incarceration of individuals who are unable to pay legal fi nancial obligations is basing fi nes on a defendant’s earnings.3 During the late 1980s and early 1990s, American courts were introduced to “day fi nes” through a series of pilot programs directed by the Vera Institute. Day fi nes are an alternative to the traditional fi xed fi ne in the United States and are based on an offender’s fi nancial means. Typically, the day fi ne is calculated using a unit scale, where certain crimes are assigned a specifi c number or range of units.4 Each unit is then valued in a manner tailored to the particular offender, taking into account his or her fi nancial means through the consideration of net daily income, adjusted downward for factors like subsistence needs and familial responsibilities.5 To reach the total fi ne amount, the number of units is multiplied by the personalized unit value.6 The purpose of the day fi ne is to punish offenders proportionately, The 8th Amendment, balancing the offenders’ fi nancial means with the crimes committed, and in theory representing a single day of incarceration without salary. Day as distinguished from fi nes have been analyzed and applied in a multitude of scenarios: some the Due Process studies apply them to minor offenses already punishable by fi xed fi nes, Clause, imposes no some try to use day fi nes as an intermediate sanction to replace probation apparent limitation on or imprisonment, while others use day fi nes in combination with other the discretion of the sanctions. Notably, day fi nes are no longer being tested in the United sentencing entity, be it States and are only of novel issue because of the recent growing interest in judge or jury, including and concerns about alleged “debtors’ prisons” and criminal justice reform, any requirement that generally. punishment be informed by the particular Issues and Shortcomings of a Day Fine System circumstances of the Part of the reason that day fi nes are not already used in the United States offense and/or the (as opposed to Great Britain) is the fact that our country is founded on offender. common law, where punishment is suited to the crime rather than the criminal— “departure from these socially entrenched norms is not easy.”7 Procedural issues abound with the day fi ne system. One major obstacle to the day fi ne system is access to fi nancial information by the courts. If the defendant will not provide the information, how does the court get it? While a defendant desiring a low fi ne may be willing to disclose fi nancial information, a defendant facing a large fi ne due to income level may not. There are potential 5th Amendment and privacy concerns involved with forcing individuals to provide information that would incriminate them in a punitive sense.8 The IRS is not permitted to turn over tax information.9 Federal and state laws prohibit disclosure by fi nancial institutions without consent of the offender.10 If income is self-reported, this calls into question reliability and trustworthiness, jeopardizing the “just” and “equitable” purpose of day fi nes.11

Page 15 SPECIAL EDITION The Recorder Another risk of the day fi ne system is its effect on crime.12 If the punishment value decreases based on income, poorer individuals have a heightened incentive to commit the crime—they may experience a net monetary gain overall, or the crime may become more “worth it” from a non-monetary perspective if it is within their ability to pay a fi ne with ease.13 Raising the maximum fi ne amount only serves to punish high income offenders to a greater extent, leaving low income offenders at an advantage only by comparison; day fi nes’ only punitive value in this scenario would be in imposing extra punishment on offenders who are more well-off. A day fi ne system may be too costly. Costs include collection and enforcement systems, training for judges and other court personnel on how to calculate day fi nes (calculating the day fi ne is itself an obstacle14), and staff employment and time commitment required to track payments and follow up with those who default.15 Contrast this with the current system of only making this type of inquiry for indigent defendants instead of all defendants. The current system also gives the judge discretion to make the type of inquiry that best suits individuals and the court in each respective community, without having to resort to a strict calculation that applies across the state. Day fi nes do not necessarily improve compliance rates. The courts may still have to resort to jail, community service, and civil procedures to effectuate some sort of sanction.16 Meaningful Use of the Fine Range While day fi nes are not likely to grace the pages of Texas law books, courts are encouraged to make meaningful use of the fi ne range. Fine schedules have utility but also have inherent limitations. Similar to writing prospective fi ne amounts on arrest warrants prior to a judgment, fi ne schedules can be misconstrued to mean that there is no fi ne range or that judges are not willing to consider the full range of punishment. Due process requires trial judges to be neutral and detached in assessing punishment.17 A trial court denies a defendant due process when it arbitrarily refuses to consider the entire range of punishment or imposes a predetermined punishment.18 What factors the judge uses in considering the entire fi ne range and the weight given to such factors is purely a matter of judicial discretion, guided by the Canons of Judicial Conduct.

1. 411 U.S. 1, 21-22 (1973). Neither Williams nor Tate touch 7. Lance R. Hignite & Mark Kellar, Day Fines, The on the question whether equal protection is denied to persons Encyclopedia of Criminology and Criminal Justice (Jay S. with relatively less money on whom designated fi nes Albanese, 2014) at 1-2. impose heavier burdens. “In San Antonio School District v. 8. Gary M. Friedman, The West German Day Fine System: A Rodriguez, the Supreme Court expressly held that poverty Possibility for the United States?, 50. U. Chi. L. Rev. 281, is not a suspect classifi cation and that discrimination against 299-300 (1983). the poor should only receive rational basis review.” Erwin 9. Id. Chemerinsky, Constitutional Law: Principles and Policies 10. Edwin W. Zedlewski, Alternatives to Custodial Supervision: (3d ed. 2006) at 786. The Day Fine, p. 8 (National Institute of Justice, 2. The Court of Criminal Appeals has stated “aside from a few Washington, D.C. 2010). specifi c instances where the range of punishment depends 11. Id. at 9. upon the determination of discrete facts, ‘[d]eciding what 12. Friedman at 302. punishment to assess is a normative process, not intrinsically 13. Id. factbound.’ Indeed, we have described the sentencer’s 14. Zedlewski, pp. 3, 6-7. discretion to impose any punishment within the prescribed 15. Friedman at 302. range to be essentially ‘unfettered.’ Subject only to a very 16. Zedlewski, p. 8. limited, ‘exceedingly rare,’ and somewhat amorphous Eighth 17. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. Amendment gross-disproportionality review, a punishment 2006). See also, Jefferson v. State, 803 S.W.2d 470, 471-472 that falls within the legislatively prescribed range, and that (Tex. App.--Dallas 1991, pet. ref’d) (reversal of trial court is based upon the sentencer’s informed normative judgment, where the trial court told the defendant upon deferring his is unassailable on appeal.” Ex parte Chavez, 213 S.W.3d sentence that, if he violated his probation, the maximum 320, 323-324 n.20 (Tex. Crim. App. 2006) citing Harmelin v. sentence would be imposed, the court fi nding ta denial of Michigan, 501 U.S. 957, 995 (1991). due process of law because the trial court’s action effectively 3. Neil L. Sobol, Article: Charging the Poor: Criminal Justice excluded evidence relevant to punishment, it precluded Debt & Modern Day Debtors’ Prisons, 75 Md. L. Rev. 486, consideration of the full range of punishment prescribed by 524-532. law, and it deprived Jefferson of a fair and impartial tribunal 4. See, Bureau of Justice Assistance, How to Use Structured at the punishment hearing.) Fines (Day Fines) as an Intermediate Sanction, p. 16 (1996). 18. Id.; See McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. 5. Id. App. 1983) (Overruled in part on other grounds by De Leon 6. Id. v. Aguilar, 127 S.W.3d 1, 6 (Tex. Crim. App. 2004)).

Page 16 SPECIAL EDITION The Recorder The Four Elements of Procedural Fairness By: Judge Mark Goodner Deputy Counsel and Director of Judicial Education Texas Municipal Courts Education Center

Examples of injustice in the criminal justice system have received a lot of publicity lately. Making a Murderer, a 10 episode documentary series that premiered on Netflix in December of 2015 is perhaps the latest example of a high-profile case that is used to show alleged police and prosecutor misconduct of a defendant accused of rape and, later, murder. It is a fascinating series that I encourage everyone to watch. While we may never know whether or not Steven Avery (the defendant in Making a Murderer) is guilty of murder, most can probable agree there is at least a compelling perception of injustice or a lack of fairness in the way the cases in the series were handled. Similarly, other documentaries and podcasts such as Serial, The Central Park Five, and the Paradise Lost series regarding the West Memphis Three have captured the world’s attention and turned a light on issues of justice and fairness in the criminal justice system. In these stories, the stakes are high and people’s lives hang in the balance.

Felony investigations, trials, and adjudications are not the only ones that may reveal violations of fairness, however. The municipal and justice courts of Texas only deal with fine-only misdemeanors. If someone is not treated fairly in these venues, they don’t face prison sentences or the death penalty, but fairness, of course, is still the foundation of our work. Everyone that comes through our courts should experience procedural fairness.Vo

Procedural fairness can be explained as whether or not people experiencing the justice system perceive the procedures (and their treatment) as fair. This aspect of “perception” triggers judicial ethics in my mind, as we must avoid impropriety as well as the perception of impropriety in our courts, under our Canons of Judicial Conduct. Often, it is easy to know that we are acting properly under the law in our courts, but it can be difficult to deal with perceptions of impropriety–yet, we must. Likewise, we can’t disregard the perception of the court user when evaluating our procedural fairness.

The four key components of procedural fairness that all judges and court personnel should keep in mind to ensure procedural fairness are as follows: (1) Understanding

• Is there an understanding of court and the process? • Have we provided explanations and clear written information?

(2) Voice

• Are the court users being heard? • Are we listening and do we strive to understand the situations, emotions, and needs of our court users?

(3) Respect

• Are all court users being treated with respect and dignity? • Are we remaining actively mindful of the individual case?

(4) Neutrality

• Are we providing a neutral forum? • Are we providing equal treatment–do we treat defending parties the same way we treat prosecuting parties?

Procedural fairness should be exhibited (and embraced) by all members of the court staff, and by keeping the four aspects of procedural fairness above in mind, our courts will be doing well.

Court staff have more contact with court users and experience a one on one exchange of information. If the court and the court staff have dealt with users fairly, then those users are more likely to cooperate, be pleasant, provide information, accept decisions, comply with orders, and leave with a positive perception of the court system.

How fair is your court? How can you improve procedural fairness in your court?

PROCEDURAL FAIRNESS/PROCEDURAL JUSTICE A BENCH CARD FOR TRIAL JUDGES

WHAT IS PROCEDURAL FAIRNESS OR PROCEDURAL JUSTICE? When we speak of Procedural Fairness or Procedural Justice (two terms for the same concept), we refer to the perceived fairness of court proceedings. Those who come in contact with the court form perceptions of fairness from the proceedings, from the surroundings, and from the treatment people get. Research has shown that higher perceptions of procedural fairness lead to better acceptance of court decisions, a more positive view of individual courts and the justice system, and greater compliance with court orders. Researchers sometimes identify the elements of procedural fairness differently, but these are the ones most commonly noted: VOICE: the ability of litigants to participate in the case by expressing their own viewpoints. NEUTRALITY: the consistent application of legal principles by unbiased decision makers who are transparent about how decisions are made. RESPECT: that individuals were treated with courtesy and respect, which includes respect for people’s rights. TRUST: that decision makers are perceived as sincere and caring, trying to do the right thing. UNDERSTANDING: that court participants are able to understand court procedures, court decisions, and how decisions are made. HELPFULNESS: that litigants perceive court actors as interested in their personal situation to the extent that the law allows.

MEASURING FAIRNESS WHY IS IT IMPORTANT? “Measurements . . . define what we mean by performance.” Several rigorous evaluations have shown that both acceptance of —Peter Drucker court decisions and overall approval of the court system are much more closely connected to perceptions of procedural fairness than There are tools to help you measure fairness in your court. You can to outcome favorability (Did I win?) or outcome fairness (Did the then see if you can improve over time. right party win?). Studies also show increased compliance with The Center for Court Innovation has Measuring Perceptions of Fairness: court orders when participants experience procedural fairness. An Evaluation Toolkit, available at http://goo.gl/TVu42A. WHY DO PEOPLE ACCEPT COURT DECISIONS? The National Center for State Courts has its CourTools, which includes an Access and Fairness survey in both English and Spanish, available at www.courtools.org. The Utah Judicial Performance Evaluation Commission has a Courtroom Observation Report, which can be used by courtroom observers to give qualitative feedback, available at http://goo.gl/1bWAVk.

KEEP IN MIND: • This may be the most important contact with the court system the parties will ever have. • Filling out forms on the bench may be important, but eye contact Source: Survey of court users in Oakland and Los Angeles, California, and engagement with the parties are critical. reported generally in TOM R. TYLER & YUEN J. HUO,TRUST IN THE LAW (2002). • Trust is not a given. But it can be gained in each hearing through adherence to procedural-fairness principles. FOR MORE INFORMATION • People make assumptions when they lack knowledge. Explain things. ProceduralFairness.org • Listening is a key skill. Decision acceptance is greater if it’s ProceduralFairnessGuide.org clear you listened—note their key points when ruling. Center for Court Innovation (www.courtinnovation.org) • Like others, judges can be affected by perceptions, assumptions, National Center for State Courts (www.ncsc.org) and stereotypes—in other words, implicit biases. Be aware.

This bench card is jointly produced by the American Judges Association, the Center for Court Innovation, the National Center for State Courts, and the National Judicial College. BENCH CARD ON PROCEDURAL FAIRNESS PRACTICAL TIPS FOR COURTROOM PROCEEDINGS

INTRODUCE YOURSELF. Introduce yourself at the beginning of in plain language. Ask litigants to describe in their own words what they proceedings, making eye contact with litigants and other audience understood so any necessary clarifications can be made. members. Court staff can recite the basic rules and format of the court proceedings at the beginning of each court session. Written procedures MAKE EYE CONTACT. Eye contact from an authority figure is perceived as can be posted in the courtroom to reinforce understanding. a sign of respect. Try to make eye contact when speaking and listening. Consider other body language that might demonstrate that you are GREET ALL PARTIES NEUTRALLY. Address litigants and attorneys by name listening and engaged. Be conscious of court users’ body language too, and make eye contact. Show neutrality by treating all lawyers respectfully looking for signs of nervousness or frustration. Be aware that court users and without favoritism. This includes minimizing the use of jokes or other who avoid making eye contact with you may be from a culture where eye communication that could be misinterpreted by court users. contact with authority figures is perceived to be disrespectful.

ADDRESS ANY TIMING CONCERNS. If you will be particularly busy, ASK OPEN-ENDED QUESTIONS. Find opportunities to invite the defendant acknowledge this and outline strategies for making things run smoothly. to tell his/her side of the story, whether directly or via defense counsel. This can help relax the audience and make the process seem more Use open-ended questions to invite more than a simple “yes” or “no” transparent and respectful. response. Warn litigants that you may need to interrupt them to keep the Example: “I apologize if I seem rushed. Each case is important to me, and court proceeding moving forward. we will work together to get through today’s calendar as quickly as Example: “Mr. Smith: I’ve explained what is expected of you, but it’s possible, while giving each case the time it needs.” important to me that you understand. What questions do you have?”

EXPLAIN EXTRANEOUS FACTORS. If there are factors that will affect your EXPLAIN SIDEBARS. Sidebars are an example of a court procedure that conduct or mood, consider adjusting your behavior accordingly. When can seem alienating to litigants. Before lawyers approach the bench, appropriate, explain the issue to the audience. This can humanize the explain that sidebars are brief discussions that do not go on the record experience and avoid court users’ making an incorrect assumption. and encourage lawyers to summarize the conversation for their clients Example: “I am getting over the flu. I’m not contagious, but please excuse afterward. me if I look sleepy or uncomfortable.” STAY ON TASK. Avoid reading or completing paperwork while a case is EXPLAIN THE COURT PROCESS AND HOW DECISIONS ARE MADE. being heard. If you do need to divert your attention briefly, pause and The purpose of each appearance should be explained in plain language. explain this to the audience. Take breaks as needed to stay focused. Tell the defendant if and when she will have an opportunity to speak and Example: “I am going to take notes on my computer while you’re talking. I ask questions. Judges and attorneys should demonstrate neutrality by will be listening to you as I type.” explaining in plain language what factors will be considered before a decision is made. PERSONALIZE SCRIPTED LANGUAGE. Scripts can be helpful to outline Example: “Ms. Smith: I’m going to ask the prosecutor some questions first, key points and help convey required information efficiently. Wherever then I’ll ask your lawyer some questions. After that, you’ll have a chance to possible, scripts should be personalized–reading verbatim can minimize ask questions of me or your attorney before I make my decision.” the intended importance of the message. Consider asking defendants to paraphrase what they understood the scripted language to mean to USE PLAIN LANGUAGE. Minimize legal jargon or acronyms so that ensure the proper meaning was conveyed. defendants can follow the conversation. If necessary, explain legal jargon Adapted from EMILY GOLD LAGRATTA,PROCEDURAL JUSTICE:PRACTICAL TIPS FOR COURTS (2015).

FOR ADDITIONAL READING

EMILY GOLD LAGRATTA,PROCEDURAL JUSTICE:PRACTICAL TIPS FOR COURTS (2015), available at https://goo.gl/YbuC3K.

Kevin Burke & Steve Leben, Procedural Fairness: A Key Ingredient in Public Satisfaction, 44 CT. REV. 4 (2007-2008) (an AJA White Paper), available at http://goo.gl/afCYT.

Pamela Casey, Kevin Burke & Steve Leben, Minding the Court: Enhancing the Decision-Making Process, 49 CT.REV. 76 (2013) (an AJA White Paper), available at http://goo.gl/RrFw8Y.

Brian MacKenzie, The Judge Is the Key Component: The Importance of Procedural Fairness in Drug-Treatment Court, 52 CT. REV. 8 (2016) (an AJA White Paper), available at http://goo.gl/XA75N3.

David B. Rottman, Procedural Fairness as a Court Reform Agenda, 44 CT. REV. 32 (2007-2008), available at https://goo.gl/sXRTW7.

Tom R. Tyler, Procedural Justice and the Courts, 44 CT. REV. 26 (2007-2008), available at https://goo.gl/UHPkxY.

This bench card is jointly produced by the American Judges Association, the Center for Court Innovation, the National Center for State Courts, and the National Judicial College.