Gideon Alert: Saddling poor defendants with high court-imposed debt is bad public policy

BY David Carroll on Thursday, October 14, 2010 at 5:11 PM

On October 14th, 2010, the USA Today editorialized that the practice of imposing high court-ordered debts on the backs of clients as part of sentencing in criminal cases –- including forcing indigent defendants to pay for the cost of their appointed attorneys -– actually heightens the chance that people may re-offend and is unsound public policy.

Their position is supported by a new report from the Brennan Center for Justice.  Released October 4, 2010, Criminal Justice Debt: A Barrier to Reentry concludes that court debt significantly hobbles a person’s chances to reenter society successfully after a conviction. For example, many states suspend driving privileges for a person who misses making a payment on their court-imposed debt; “a practice that can make it impossible for people to work and that can lead to new convictions for driving with a suspended license.”  Worse, “[m]any states also use the threat of probation or parole revocation or incarceration for contempt as a debt-collection tool, and in some jurisdictions, individuals may also ‘choose’ to go to jail as a way to reduce their debt burdens.” These tactics violate the American Bar Association Criminal Justice Standards, Providing Defense Services 5-7.2, which unconditionally prohibit forcing an indigent defendant to pay for the cost of their attorney after the representation has been provided (with one exception, where the client committed fraud in establishing that they are indigent).  And, sending a defendant to jail to, in essence, work off the financial assessment they are unable to pay directly violates decisions of the United States Supreme Court.

In Williams v. Illinois, 399 U.S. 235 (1970), the Court considered a situation where a defendant was sentenced to prison for the maximum number of years and was also sentenced to pay money.  When the defendant was unable to pay the monetary portion of his sentence, he was sent to jail for additional time.  The Court held that a poor person unable to pay a fine could not be sentenced to a longer punishment than the maximum sentence simply because they are too poor to pay.  Then, in Tate v. Short, 401 U,S. 395 (1971), the Court considered a similar situation where the available punishment did not include incarceration and a defendant could only be sentenced to pay a fine.  In that case, the defendant had been unable to pay the fine, and was then sent to jail to satisfy the unpaid fine at the rate of $5 per day in jail.  The Court held that the law cannot limit punishment to a fine for those able to pay, but then convert that fine to imprisonment for the poor.  In a third case, Bearden v. Georgia, 461 U.S. 660 (1985), the Court considered the situation where a trial court held off imposing sentence on a defendant and instead ordered the defendant to various monetary assessments as a condition of probation.  If the defendant paid the assessments, then there would be no danger of going to jail, but if unable to pay, then the judge would determine the sentence.  When the defendant, through no fault of his own, was unable to pay, the judge sent him to prison.  The Court held that imprisoning an indigent defendant who tried and failed to pay as ordered violates equal protection guaranteed by the Fourteenth Amendment.

In all of these cases, the Supreme Court reasoned that legislatures establish the appropriate range of punishment for crimes, and then trial courts make a decision about the particular punishment that is appropriate to impose on a defendant at the time of sentencing.  If the trial judge made a decision to place the defendant on probation in the first instance, this “reflects a determination by the sentencing court that the State’s penological interests do not require imprisonment” of the defendant.  So when an indigent person has been placed on probation and ordered to pay money, later sending that person to jail because they are unable to pay that money -- through no reason other than poverty -- is unconstitutional.

But, as a new American Civil Liberties Union (ACLU) report makes clear, such practices are flourishing all across the country.  In for a Penny: The Rise of America’s New Debtors' Prisons recounts stories in state after state of people who are imprisoned for failing to pay court-imposed fees despite the constitutional prohibition.  For example, the ACLU report profiles a Louisiana homeless construction worker assessed $498 in fines and costs on the backside of his marijuana possession conviction in 2007. Arrested two years later for failure to pay, he “spent five months in jail at a cost of more than $3,000 to the City of New Orleans.”  Spending $3000 in a failed effort to collect $500 just is not sound public policy.

NLADA has similarly documented a number of jurisdictions that impose excessive fees on the back-end of cases, jail people for failure to pay court-imposed debts, and/or chill the right to counsel with the threat of having to pay for public defense services.  In Louisiana, our 2004 report In Defense of Public Access to Justice determined that courts in Avoyelles Parish were regularly imposing the following fees on defendants, in addition to any fine and restitution: partial reimbursement for defense attorney ($125) and partial reimbursement for the costs of prosecution ($125); for the Sheriff ($17.50); for the Clerk of Courts ($7.50); for the District Attorney ($10.00-$20.00 depending on case severity); for the Louisiana Commission on Law Enforcement ($6.00); for the District Court ($10.00); for the Judicial Administrator ($2.00); for the Police Jury ($2.50); for the Coroner ($10.00); for the Central Louisiana Criminal Detention ($7.50); for the 12th Judicial District Juvenile Detention Center ($2.00); and, for the North Louisiana Criminalistics Lab ($10.00-$50.00 depending on case severity); a total of $335 - $385 assessed from every defendant, no matter how poor, in addition to fines and restitution.

In 2010, NLADA published Effective Assistance of Counsel, an assessment of public defense services in Lafayette Parish, Louisiana.  That report documented how indigent clients found or pled guilty are regularly assessed an excessively large amount of fees to be paid as a condition of probation, including the cost of their defense, and that failure to pay the fees results in the revocation of their probation and jail time to be served at further taxpayer’ expense. And our reports on Michigan and Idaho recount how signs placed in courthouses telling people that public defense is not free encourage (or more likely actually compel) people to forego their constitutional right to counsel rather than incur costs they cannot afford.  After all, these are indigent defendants.

Despite all of this, a spokesperson for the National District Attorneys Association (NDAA) wrote an opposing view to the USA Today editorial.  “When the citizens are asked to bear the cost of providing a lawyer for anyone who can't afford one, it is not unreasonable to ask those found guilty to pay at least part of that cost.  . . .  We should never expect the justice system to be a revenue center for local or state governments, but that doesn’t mean that those who violate the law should get a free ride.”

First, when states tell indigent people that public defense is not free, this falls on both the innocent and the guilty.  An innocent but indigent person may never receive a lawyer, may never have their day in court to demonstrate their innocence, because they know they do not have any money to pay for a lawyer and so they simply plead guilty to a crime they did not commit.    Second, there is no “free ride” for any person convicted of any crime.  They will be sentenced to jail or prison if the judge finds that sentence to be appropriate and necessary; they will be placed on probation with many conditions and limitations on their liberty, if the judge finds that sentence to be appropriate; and they will be fined and ordered to pay restitution, if the judge finds that sentence to be appropriate.  The question is what will happen to an indigent person who is unable to pay monetary assessments, if they have done their best and still cannot pay.

Nearly three decades ago, the United States Supreme Court made the following wise observations.  (1) “Revoking the probation of someone who, through no fault of his own, is unable to [pay] will not make [payment] suddenly forthcoming.”  (2) Sending a person to jail for inability to pay when a court has already determined that a jail sentence is not a necessary punishment for the crime “would be little more than punishing a person for his poverty.”      (3)  To the extent that the state is concerned about not allowing people to merely ignore the rules – “scofflaw” concerns – “the sentencing court could extend the time for making payments, or reduce the fine, or direct that the probationer perform some form of labor or public service in lieu of the fine” to enforce the law.  These remain sound observations today.  Before an indigent person is ordered to make payments for the cost of their own representation, a court should determine whether there is a reasonable prospect that the defendant can make reasonably prompt payments and in what amount.  Any order for an indigent person to contribute to the cost of their own defense should be made at the time of appointment, based on what they can reasonably pay, and should not impose a long-term financial debt.   And no person should ever be sent to jail for inability to pay fines or fees where they have made a good faith effort to pay.

The unilateral imposition of fees on all who come before the court in need of counsel, without considering who has the ability to pay, and the blanket incarceration of those who cannot pay, are simply unconstitutional.  Hopefully, prosecutors will uphold the law they are duty-bound to protect and stop these practices.