in for a penny: brennan center reports expose resurgence of debtors’ prisons

8/8/2019 In For a Penny: Brennan Center Reports Expose Resurgence Of Debtors Prisons

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A report by the

American Civil Liberties Union

OCTOBER 2010

IN FOR A PENNYThe Rise of Americas New Debtors Prisons


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IN FOR A PENNY

The Rise o Americas New Debtors Prisons

A report by the

American Civil Liberties Union

OCTOBER 2010

www.aclu.org


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IN FOR A PENNY

The Rise o Americas New Debtors Prisons

OCTOBER 2010

AMERICAN CIVIL LIBERTIES UNION125 Broad Street, 18th Fl.New York, NY 10004www.aclu.org

COVER PHOTOGRAPH:

Mary Tiedeman 2010


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TABLE OF CONTENTS

IN FOR A PENNY: The Rise o Americas New Debtors Prisons

5 EXECUTIVE SUMMARY5 Key Findings11 Recommendations

13 METHODOLOGY AND ACKNOWLEDGEMENTS

17 LOUISIANA17 I. LFOs in New Orleans25 II. Special Focus: New Orleans Broken Funding Scheme or Its Criminal

Justice System28 III. Recommendations

29 MICHIGAN

29 I. LFOs in Michigan38 II. Special Focus: Michigans Recent Shit Toward Aggressive Collections41 III. Recommendations

43 OHIO43 I. LFOs in Ohio52 II. Special Focus: Ohios Municipal & Mayors Courts and Pay-to-Stay Programs

54 III. Recommendations

55 GEORGIA55 I. LFOs in Georgia59 II. Special Focus: Georgias For-Prot Probation Companies64 III. Recommendations

65 WASHINGTON65 I. LFOs in Washington State69 II. Special Focus: Four Case Studies o Men and Women and Their Lietime Struggle

to Manage Their Legal Debts79 III. Recommendations

81 CONCLUSION


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IN FOR A PENNY: The Rise o Americas New Debtors Prisons | 5

EXECUTIVE SUMMARY

In October 1980, Danny Bearden was sentenced to three years o probation and ordered to pay$750 in nes and restitution or burglary and receiving stolen property, $200 o which was duealmost immediately. Mr. Bearden borrowed enough money rom his parents to make a partialpayment to the court, but soon ell behind when he was laid o rom his job about a monthater his conviction. Mr. Bearden, who was illiterate and had not attended school beyond theninth grade, was unable to nd work again. In June 1981, his probation was revoked becausehe had been unable to pay the $550 he still owed the court, and he was sentenced to serve theremainder o his probation term in prison. For two years, he languished behind bars. But in1983, the Supreme Court o the United States issued a decision that set him ree. The Courtruled that imprisoning a probationer who, through no ault o his own, had been unable topay his debts despite making bona de eorts to do so violated the Equal Protection Clause

o the Fourteenth Amendment. The Court held that sentencing courts must inquire into adeendants reasons or ailing to pay a ne or restitution beore sentencing him to serve timein prison; to imprison someone merely because o his poverty would be undamentally unair.1

Today, courts across the United States routinely disregard the protections and principles theSupreme Court established in Bearden v. Georgia over twenty years ago. In the wake o therecent scal crisis, states and counties now collect legal debts more aggressively rom menand women who have already served their criminal sentences, regardless o whether theyare able to pay these debts. In this report, In For A Penny: The Rise o Americas New DebtorsPrisons, the ACLU presents the results o its yearlong investigation into our modern-daydebtors prisons. The report shows how, day ater day, indigent deendants are imprisoned

or ailing to pay legal debts they can never hope to manage. In many cases, poor men andwomen end up jailed or threatened with jail though they have no lawyer representing them.These sentences are illegal, create hardships or men and women who already struggle withre-entering society ater being released rom prison or jail, and waste resources in an otenruitless eort to extract payments rom deendants who may be homeless, unemployed, orsimply too poor to pay.

Key Findings

The ACLU investigated the assessment and collection o legal nancial obligations (LFOs)ageneral term that includes all nes, ees, and costs associated with a criminal sentenceinve states: Louisiana, Michigan, Ohio, Georgia and Washington. The ollowing are the ACLUskey ndings on the damage debtors prisons do to our citizens, our local and state economies,and our criminal justice system:


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Debtors Prisons Come With Devastating Human Costs

Incarceration has a devastating eect on men and women whose only remaining crime is thatthey are poor. Upon release, they ace the daunting prospect o having to rebuild their lives yet

again. Even or those men and women with unpaid LFOs who do not end up back behind bars,their substantial legal debts pose a signicant, and at times insurmountable, barrier as theyattempt to re-enter society. They see their incomes reduced, their credit ratings worsen, theirprospects or housing and employment dim, and their chances o ending up back in jail orprison increase. Many must make hard choices each month as they attempt to balance theirneeds and those o their amilies with their LFOs. They also remain tethered to the criminal justice systemsometimes decades ater they complete their sentencesand live underconstant threat o being sent back to jail or prison, solely because they cannot pay what hasbecome an unmanageable legal debt. This report highlights the experiences o dozens o menand women who have been ensnared in the criminal justice system, some o whom ended upincarcerated, merely because they were too poor to manage their LFOs:

InLouisiana, the ACLU proles Sean Matthews, a homeless construction worker who was

assessed $498 in nes and costs when he was convicted o possession o marijuana in2007. He was arrested two years later ater ailing to pay his LFOs, and spent ve monthsin jail at a cost o more than $3,000 to the City o New Orleans. We also prole GregoryWhite, a homeless man who was arrested or stealing $39 worth o ood rom a localgrocery store. He was assessed $339 in nes and ees, which were later converted intoa community service sentence ater he was jailed because he could not pay his nes. Mr.White spent a total o 198 days in jail because he was unable to pay his LFOs and could notaord the bus are to complete his community service. In all, his incarceration cost the Cityover $3,500.

InMichigan, the ACLU proles Kawana Young, a single mother o two young sons, whowas arrested in March 2010 or ailing to pay LFOs connected with several minor tracoenses. Ms. Young was ordered to pay $300 or spend three days in jail or one o heroenses. She was unable to pay, having been recently laid o and unable to nd workagain, but the judge reused to allow her to pay on a payment schedule and remandedher back to jail or three days. Because she was sent back to jail, Ms. Young was chargeda booking ee and a daily ee or her room and board, LFOs she would not have incurredhad she been able to pay her $300 ne on the day she was sentenced. We also proleWalter Riepen. In late 2009, Mr. Riepen was sentenced to 30 days in jail and probation ora misdemeanor. Within days o his release, he received a letter rom a private collections

agency working or the state that contained a bill or $60 per day or his jail stay, or a totalo $1260. Mr. Riepens only income is a monthly social security disability payment, he hasno unds to pay down the $1260 or his room and board, and he lives under the threat obeing sent back to prison due to his unpaid LFOs.


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InOhio, the ACLU proles Howard Webb, whowas thrown in jail no ewer than our times overa six-year period or ailing to pay $2,882.36 inLFOs assessed or various criminal and trac

oenses. During these years, Mr. Webb, adishwasher earning $7 per hour, entered intoseveral payment plans, made some payments,signed up or community service, and alsowrote numerous letters to the court askingor early release so that he could keep hisemployment and make payments. The courtdenied all his requests, noting that it wouldonly release him i the court receives all themoney he owes. In all, Mr. Webb served 330days in jail. Had the judge ollowed state law

requiring that Mr. Webb be credited or $50 a day toward his LFO debt or each day he wasincarcerated, his time in jail would have covered $16,500 in nesmore than ve timeswhat he owed in LFOs. We also prole Yolanda Twitty, who was assessed $251 in nesand costs or unauthorized use o property, a ourth-degree misdemeanor that carries amaximum sentence o 30 days. Ms. Twitty was arrested our dierent times when she wasunable to pay her LFOs. She served a total o 35 days in jail without receiving any credittoward her debt, ve days longer than the maximum sentence she could have received orher underlying oense.

InGeorgia, the ACLU proles Beth, who was arrested and placed on probation at $40a month when she was a juvenile ater she stole some school supplies. Though Beth

suers rom mental illness and was under her mothers care, she was transerred tothe adult probation system when she turned seventeen. Her probation ocer reused tokeep Beths motherwho had paid her probation charges and made sure she kept all oher appointments and court appearancesinormed o Beths obligations. Beth missedseveral LFO payments and court appearances and was arrested or violating her probation.Without an attorney present, the judge ordered that Beth be jailed without determining ishe had the means to pay her probation ees. Beth was released only ater her mothercame up with enough money to get her out. Overall, Beth has been charged $4,000 plusprobation ees and had her social security disability income revoked or missing LFOpayments. We also prole Ora Lee Hurley, who was ound to be in violation o probationand sentenced to a jail diversion acility or a minimum o 120 days or until she paid back

a $705 ne rom a 1990 drug possession conviction. Ms. Hurley remained locked up eightmonths ater she completed her 120-day sentence solely because she was unable to payher ne.

The Constitution is completely

ignored. I youre never exposed

to it, you think everythings okay.Thats where we were or a long

time, and then one day . . .

JANE RIEPEN, whose husbandwas charged $1260 or the costso his incarceration


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InWashington, the ACLU proles our men and women as they struggle to manage theirlegal debts. One o them is Nick, a 38-year-old Arican American man who has struggledwith drug addiction and mental health problems since he was a teenager. Nick accumulateda total o $3,178 in LFO debt to the state, or which he established a monthly payment plan.

Ater ailing to make two monthly payments totaling $60, Nick was incarcerated or twoweeks in the county jail at a cost to the county o approximately $1,720. We also proleLisa, whose legal debts have grown to over $60,000 due to the states interest penalty onunpaid LFOs. Though she has been crime-ree or nine years, Lisa has been arrested andincarcerated our times because o her unpaid LFOs, including two times when she wasnot provided with an attorney beore the judge ordered her to be jailed. On one occasion,she was jailed even though she told the judge that her lights had recently been turned oin her apartment because she did not have the money to pay her electricity bill. Lisa nowworks with current and ex-oenders in a re-entry program. Because she remains undercourt supervision or her LFOs, she was denied access several times to local detentionacilities to speak with her clients.

Debtors Prisons Waste Taxpayer Money and Resources

Imprisoning those who ail to pay nes and courtcosts is a relatively recent and growing phenomenon:States and counties, hard-pressed to nd revenueto shore up ailing budgets, see a ready source ounds in deendants who can be assessed LFOs thatmust be repaid on pain o imprisonment, and have

grown more aggressive in their collection eorts.Courts nationwide have assessed LFOs in ways thatclearly refect their increasing reliance on undingrom some o the poorest deendants who appearbeore them. For example, courts in rural Michigancounties are more aggressive in assessing andcollecting court costs and deender eeswhichgo directly into county coersthan nes, whichare deposited into a statewide und. Because manycourt and criminal justice systems are inadequatelyunded, judges view LFOs as a critical revenuestream. In New Orleans, or example, LFOs accountor almost two-thirds o the criminal courtsgeneral operating budget. One town in Ohio with apopulation o 60 collected more than $400,000 inone year in LFOs assessed in its mayors court, one

I mean $30 a month . . . its just

the act that its indenite. How

am I going to pay all that back?

I owe child support, I owe LFOs,

and I owe other bills. I cant

get a clean slate. I understand

I committed a crime, I did my

time. Okay. I understand that.

But, to come ater someone

rom 1991, 1992, 1997, thats

ridiculous. NICK, who was imprisoned or two

weeks or ailing to pay $60 worth o

nes


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o many largely unregulated trac and municipal ordinance courts in the state with a well-earned reputation or assessing exorbitant nes and ees to pad local budgets.

Although states and counties view LFOs as much-needed revenue, they do not systematically

gather and produce data showing that their eorts to collect unpaid legal debts actually makemoney. In act, incarcerating indigent deendants unable to pay their LFOs oten ends upcosting much more than states and counties can ever hope to recover. In one two-week periodthis May, 16 men in New Orleans were sentenced to serve jail time when they could not paytheir LFOs. I they served their complete sentences, their incarceration would cost the City oNew Orleans over $1,000 more than their total unpaid legal debts. In Washington, one manwas jailed or two weeks or missing $60 in LFO payments. In Ohio, a woman was held in jailor over a month or an unpaid legal debt o $250.

Incarcerating indigent men and women only diminishes their ability to repay their legal debts,and the disruption in their lives and the lives o their amilies and loved ones can lead to

increased public costs when they are orced to use social welare programs to survive. Evenwhen deendants are not incarcerated, the costs o collection eorts can make seeking unpaidLFOs cost-ineective, since issuing warrants, conducting hearings, and using collectionsagents and law enorcement ocials to locate and detain debtors all cost money.

Debtors Prisons Undermine Our Criminal Justice System

This new push or revenue has also undermined the integrity o the court system. The ormerchie judge o the New Orleans criminal court acknowledged that it creates an appearance

o impropriety when judges must rely in part on collecting LFOs rom poor deendants tokeep their courts running. Judges in that court were pressured by their colleagues to collectLFOs, and those who collected less than their air share were provided with ewer operatingunds. In Ohio, the late chie justice o the Ohio Supreme Court called or the elimination olocal mayors courts, recognizing the inherent confict in a system that permits the personresponsible or the scal well-being o a community to use judicial powers to produce incomethat supports th[at] well being. Additionally, Ohios state disciplinary counsel took theextraordinary step o disciplining one o its judges or repeatedly imprisoning poor deendantswho could not pay their LFOs despite their best eorts to do so.

The imposition o LFOsparticularly the pay-to-stay and booking ees charged once a

deendant is incarcerateddisproportionally aects racial and ethnic minorities, becausethey are disproportionally represented among the prisoner population. In 2007, 38% o thenations 1.5 million prison inmates were black and 21% were Hispanic,2 despite the act thatthese groups only represent 12% and 15% o the general population, respectively.3


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But racial disparities exist at every stage o our criminal justice system, not just in our prisonsand jails. The U.S. Court o Appeals or the Ninth Circuit recently recognized that in WashingtonState, the criminal justice system is inected with racial bias.4 The court ound that Arican-Americans and Latinos in the state were disproportionately arrested or drug possession and

delivery, ar more likely to be searched, and less likely to be released without bail than theirwhite counterparts.5 These same disparities extend to the assessment o LFOs: In Washington,Hispanic deendants generally receive higher LFOs than white deendants convicted o similaroenses, and persons convicted o drug oenses receive signicantly higher LFOs than thoseconvicted o violent crimes.

Debtors Prisons Create a Two-Tiered System o Justice

The courts newound vigor in assessing and collecting LFOs has done more than just tarnish

their reputation and integrity. It has created a two-tiered system o justice in which the poorestdeendants are punished more harshly than those with means. Although courts attempt tocollect LFOs rom indigent and afuent deendants alike, those who can aord to pay theirlegal debts avoid jail, complete their sentences, and can move on with their lives. Thoseunable to pay end up incarcerated or under continued court supervision. Perversely, they alsooten end up paying much more in nes and ees than deendants who can pay their LFOs.Poor deendants who are re-arrested and incarcerated or ailing to pay their LFOs ace addedcosts, such as warrant ees, as well as booking and jail pay-to-stay ees. Some states andcounties have particularly insidious penalties reserved or the poor: To make up or budgetshortalls, some counties in Georgia aggressively pursue nes and ees in their trac courts,and reer those deendants who cannot immediately pay to private probation supervision

companies, which charge monthly ees that oten double or triple the amount o money aprobationer would have paid had he or she been able to aord the ne. In Washington State,all unpaid legal debts are subject to 12% interest. Since most Washington deendants whohave been convicted o a elony cannot aord to pay their legal debts in ull, and must resort tomaking small periodic payments, this interest penalty can turn what starts as a modest neinto a lietime debt: a criminal deendant who is assessed the average LFO or a elony andwho makes a typical monthly payment on that LFO would still have a legal debt, and wouldremain ensnared in the criminal justice system and under threat o imprisonment, 30 yearsater his conviction.


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Recommendations

At the end o each state section, the ACLU has made recommendations to state and localocials to remedy the most serious abuses that have resulted rom debtors prisons in that

particular jurisdiction. These recommendations seek to ensure that the ollowing principlesare adhered to:

1. Deendants should not be incarcerated or ailing to pay nes, ees, and costs that theycannot aord, and must be aorded the same protections as civil judgment debtors.

2. Courts must consider a deendants ability to pay when determining whether to assessnes, ees, and costs, and when deciding whether a ailure to pay is willul.

3. States should repeal all laws that may result in poor deendants being punished moreseverely than deendants charged with the same oenses who have means. This

includes statutes authorizing courts to charge ees to indigent deendants who areappointed counsel, and statutes that impose penalties or interest on unpaid LFOs.

4. Consistent guidelines regarding determination o indigence and policies or assessingand collecting LFOs should be implemented in every jurisdiction to guard againstarbitrary or racially skewed discrepancies in punishment.

5. Judges and other court ocials should receive training in and comply with ederal andstate laws that prohibit incarceration o deendants who are too poor to pay LFOs andrequire a determination o ability to pay beore incarceration. Judges should appointcounsel to deendants at proceedings to determine whether to impose or modiy LFOs,

or whether to sanction deendants or nonpayment. Deendants should be given theopportunity to repay their debts through alternative methods such as communityservice.

6. All jurisdictions should collect and publish data regarding the assessment andcollection o LFOs, the costs o collections (including the cost o incarceration), andhow collected unds are distributed, broken down by race, type o crime, geographicallocation, and type o court.

7. Courts should be adequately unded so they do not have to rely on the collection oLFOs or a substantial portion o their operating budgets.

The ederal government also has a role to play to ensure that the constitutional guaranteesannounced in Bearden are consistently ollowed. Thereore, the ACLU calls on the U.S.Congress to hold oversight hearings on the rise in debtors prisons.


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METHODOLOGY AND ACKNOWLEDGEMENTS

In April 2009, Edwina Nowlin contacted the ACLU o Michigan ater she was jailed becauseshe ailed to comply with a court order to pay $104 per month in lodging ees to the detentionacility where her son was housed. At the time the court ordered her to make these payments,Ms. Nowlin was homeless and working part-time. Ms. Nowlin was released rom jail ater theACLU o Michigan agreed to represent her and led an emergency petition on her behal.

Following Ms. Nowlins release, the ACLU National Prison Project (NPP) and ACLU RacialJustice Program (RJP) launched an investigation to determine how widespread and commonher experience was across the county. In July 2009, the NPP and RJP sent out a survey queryto all state ACLU aliates asking them to provide any inormation they had on debtors prisonsin their state, including the names o public deenders or attorneys who had clients either

jailed or threatened with incarceration due to their ailure to pay LFOs. The NPP and RJP had asimilar query posted on a national listserv maintained by the National Legal Aid and DeenderAssociation.

In August-November 2009, the NPP and RJP reviewed the responses they had received to theirqueries, called each aliate that had not responded, and conducted ollow-up phone calls withdozens o attorneys, public deenders, and local advocates. Based on these responses, theNPP and RJP narrowed their investigation to a handul o states that would be the ocus o thisreport. The NPP and RJP also retained Alexes Harris, Ph.D., assistant proessor o sociology,University o Washington, to drat the Washington State section o this report, ocusing oncase studies and clinical interviews o men and women who had completed their criminal

sentences and were attempting to manage their legal debts ater their release.

From December 2009 to July 2010, the NPP and RJP, aided by ACLU aliate sta, lawstudents, volunteer attorneys, and law proessors, continued their investigation regardingLFO assessment, collection, and enorcement practices in the ve states covered in thisreport. This work included reviewing case dockets and pleadings rom local and state courtsin each state; and speaking with public deenders, judges, court administrators and sta,and personnel at local diversion, rehabilitation, and prisoner re-entry programs. We alsointerviewed current and ormer prisoners who were either jailed because o their ailure topay LFOs, or were attempting to manage their legal debts ater being released. In April 2010,NPP sta traveled to Louisiana to launch a court-watching program administered by two lawproessors at Tulane Law School that thereater had students, a proessor, and volunteerssit in on local court proceedings in Orleans Parish, Louisiana. The NPP and RJP also ledstate public records requests to gather inormation on LFO assessments, collections, andenorcement practices in Michigan and Louisiana.


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The principal authors o this report are Sarah Alexander, Litigation Fellow, ACLU NationalPrison Project; Yelena Konanova, Litigation Fellow, ACLU Racial Justice Program; andDeuel Ross, Karpatkin Fellow, ACLU Racial Justice Program. Alexes Harris, Ph.D., assistantproessor, Department o Sociology, University o Washington, is the principal author o the

Washington State section.

Vanita Gupta, director, ACLU Center or Justice, and Eric Balaban, senior sta counsel,NPP, directed the investigation and writing o this report, and were its primary editors. WillaTracosas o the ACLU National Oce is responsible or the reports design. This report wasalso reviewed at the NPP by David Fathi, director; Margaret Winter, associate director; andCarl Takei, sta counsel; and at the ACLU Center or Justice by Anjuli Verma, senior programstrategist; Rachel Bloom, state strategies coordinator; and Rebecca McCray, legal assistant.RJP Legal Intern Laura Jones helped conduct a thorough review o the report and RJP LegalAssistants Marika Plater and Salima Tongo provided exceptionally useul help on the project.The authors grateully acknowledge the ollowing persons or their invaluable help in the

research and writing o this report:

In the state o Georgia, we thank Marietta Conner; Chara Jackson Fisher, Legal Director,ACLU o Georgia; Sarah Geraghty, Southern Center or Human Rights; John Jack Long, Esq.;and Debbie Seagraves, Executive Director, ACLU o Georgia.

In the state o Louisiana, we thank Aaron Clark-Rizzio, Orleans Parish Public Deenders;Michael Bradley, Deputy DeenderCourt Operations, Orleans Parish Public Deenders;Desherick J. W. Boone, Paralegal, ACLU o Louisiana; Derwyn Bunton, Chie Deender, OrleansParish Public Deenders; Sam Dalton; Marjorie Esman, Executive Director, ACLU o Louisiana;Chris Flood, Deputy Chie Deender, Orleans Parish Public Deenders; Barry Gerharz, Prison

Litigation Fellow, ACLU o Louisiana; Colin Gilland; Mary Ham; Mary Howell; Cecil J. Hunt,Assistant to the Chie Deender, Orleans Parish Public Deenders; Allen James, ExecutiveDirector, Sae Streets/Strong Communities; Hon. Calvin Johnson, Chie Judge, Orleans ParishCriminal District Court (retired); Rob Kazik, Judicial Administrator, Orleans Parish CriminalDistrict Court; Carlotta Lepingwell, Orleans Parish Public Deenders; Katherine Mattes,Proessor and Interim Director, Criminal Litigation Clinic, Tulane University Law School;Pamela Metzger, Associate Proessor, Tulane University Law School; Jee Park, Orleans ParishPublic Deenders; Catherine Phillips; Kelly Sawyer; Katie Schwartzmann, Legal Director,ACLU o Louisiana; and Jon Wool, Director, New Orleans Oce, Vera Institute o Justice.

In the state o Michigan, we thank Miriam Aukerman o Legal Aid o Western Michigan; Rana

Elmir, Communications Director, ACLU o Michigan; Jennier Fiess; Sister Marietta Fritz oEmmaus House; Harold Gurewitz; Rachael Holmes o Legal Services o South Central Michigan;Donald Johnson o Legal Aid and Deender Association; Mary Lannoye; James Maceroni;Marcia M. McBrien, Public Inormation Ocer, Michigan Supreme Court; Jacqueline McCanno the State Appellate Deender Oce; Kary Moss, Executive Director, ACLU o Michigan; Jim


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ODonnell o the Legal Aid and Deender Association; Walter and Jane Riepen; Regina Roberts;Jessie Rossman, Sta Attorney, ACLU o Michigan; Laura Sager o the Michigan Campaign orJustice; Patricia Slomski; David Sutton; Michael Steinberg, Legal Director, ACLU o Michigan;Nycole Sykes o the Center or Civil Justice; Dawn Van Hoek o the State Appellate Deender

Oce; Anne Yantus o the State Appellate Deender Oce; and Kawana Young.

In the state o Ohio, or providing us with a wealth o inormation, thank you to Glen H. Dewar,the ormer Montgomery County Public Deender. Special thanks also go to Chris Beck o theGreene County Public Deender Oce; Steve Cockley; Carrie Davis, Sta Attorney, ACLU oOhio; Shakyra Diaz, Education Director, ACLU o Ohio; Ted Finnarn; Aaron Herron; Chris Link,Executive Director, ACLU o Ohio; Kay Locke o the Montgomery County Public Deender Oce;Robert Newman o Newman & Meeks, Co., L.P.A.; Patricia Rousseau o the Montgomery CountyPublic Deender Oce; David Singleton o the Ohio Justice Policy Center; Robert Tobik, theCuyahoga County Public Deender; Yeura Ventes, the Franklin County Public Deender; JamieWood, Court Administrator, Manseld Municipal Court; and Tim Young, the Ohio State Public

Deender.

In the state o Washington, we thank Katherine Beckett, Proessor o Sociology, University oWashington; Lisa Daugaard, Deputy Director, the Deender Association; Ari Kohn, President,Post-Prison Education Program; Vanessa Lee, Washington Appellate Project; Jennier Shaw,Deputy Director, ACLU o Washington; and Nancy Talner, Sta Attorney, ACLU o Washington.Most o all, we thank the men and women who shared their experiences with us or this report,all o whom struggle daily to manage their LFOs.


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LOUISIANA

Now, how can you describe a system where the City pays $23 a dayto the Sheri to house someone in the Jail or 30 days to collect $100

as anything other than crazy?

HON. CALVIN JOHNSON, ormer chie judge,Orleans Parish Criminal District Court

I. LFOs in New Orleans

New Orleans, the seat o Orleans Parish, is one o Louisianas most populous cities. It also hasthe highest incarceration rate o any major city in the United Statesthree times the nationalaverage in 2009.6 Orleans Parish Prison (OPP), the notorious New Orleans jail, holds men andwomen accused o every imaginable crimeas well as those whose only crime is that they aretoo poor to pay their legal debts.

The Louisiana state constitution does not specically prohibit imprisonment or debt, butdebtors prisons were abolished by statute in 18407 and Louisiana courts have since held that[a]n indigent deendant may not be subjected to imprisonment because he is unable to pay ane which is a part o his sentence, and have considered it error or a trial court to impose jailtime or ailure to pay court costs.8 In spite o this, all o the criminal courts o Orleans Parish

impose nes and ees regardless o a deendants ability to pay them. A court need only inquireinto a deendants reasons or nonpayment and consider alternatives to incarceration i thedeendant appears in court to assert his inability to pay.9 And in practice, such determinationsrarely occur.10 Even beore any nding o guilt or innocence, deendantsor their riends andamiliesmay already have posted bond and been assessed a $40 ee or the appointmento a public deender. Some deendants are told they must pay this ee beore counsel will beappointed.11 I convicted, deendants ace nes, court costs, and a host o ees that und theoperation o the justice system. The oce o the public deender, the courts general und, thelaw enorcement und, and other criminal justice unds all receive portions o the nes andees collected rom deendants.12

When deendants are unable to pay their nes, ees and costs, they may be incarcerated. Thecourt monitors a deendants payment progress by scheduling hearings at which the deendantmust appear to make payments, ask or an extension, or otherwise explain his situationto the court. Those who cannot aord to make timely payments according to the scheduledetermined by the court are assessed a late ee o $100, meaning that the poorest deendants


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may be aced with the highest debts overall.13 Deendants may also be held in contempt ornonpayment and sent to jail, typically or ve to thirty days, regardless o whether their ailureto pay is willul or solely because o their poverty. According to Derwyn Bunton, chie publicdeender or Orleans Parish, this is the most common way or someone to be reincarcerated

or his or her inability to pay; it happens every day.14

Payment o LFOs is also requently madea condition o a deendants probation, without any inquiry into whether he has the resourcesto pay, and nonpayment (especially o supervision ees assessed by the probation department)can result in a violation that sends the deendant back to jail or prison to serve his or her ullterm.15

Deendants may also be required to participate in diversion or treatment programs as acondition o probation. These programs come with very high costson the order o $600 permonthwhich many deendants can never hope to pay.16 When a deendant can no longer paythe required ees, he is dropped rom the programand because he can no longer attend,he is deemed to have violated the terms o his supervision and may ace jail time. As Chie

Deender Bunton puts it, the deendant is sent back to jail not because he started usingdrugs or alcohol in violation o the treatment program, but because he could not aord thetreatment itsel.17 When people are dropped rom these programs or nonpayment, thedebt they have accumulated participating in the programs remains, leaving them with legalnancial obligations even greater than those they might have incurred had they simply pledguilty and been sentenced to jail.18

The assessment and collection o LFOs rom indigent deendants may have a racially disparateimpact in New Orleans. Post-Katrina, New Orleans continues to be one o the poorestmetropolitan areas in the country, with 23% o its population living below the poverty line in2008.19 Historically, that poverty has been concentrated in residentially segregated Arican

American communities; those communities havein turn been disproportionately incarcerated.20Unortunately, the Orleans Parish Sheri hasreused to release data that would make it possibleto assess exactly how many New Orleanians areincarcerated or their debts each year, let alonehow many o them are people o color.

The City o New Orleans pays

$22.39 per day to the Sheri

or each detainee housed in the

Orleans Parish Prison. Thus, the

ve months Sean Matthews spent

incarcerated there waiting to see

a judge cost the City $3,201.77more than six times the $498

legal debt he owed.


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The Cost o Collections in Orleans Parish Criminal Court

Sean Matthews, a temporary construction worker who lives with various amily and riendsbecause he has no home o his own, was arrested on February 9, 2007, and pled guilty to

possession o marijuana on September 13.21 He was assessed a $300 ee or the JudicialExpense Fund, $148 in court costs, and a $50 ee or the Law Enorcement Fund. He wasunable to pay his nes and ees, and was arrested two years later on September 1, 2009.22

When he was taken into custody, no one could tell Mr. Matthews when he would be brought tocourt; ater a couple o weeks, he simply stopped asking. He was unable to get in touch withhis amily rom jail, although he did once manage to reach his uncle, who didnt care andhung up on him.23 Finally, on January 21, 2010, ater spending almost ve months in jail, Mr.Matthews was brought to court, where the judge waived his nes and ees and ordered hisrelease.24

The City o New Orleans pays $22.39 per day to the Sheri or each detainee housed in the

Orleans Parish Prison.25 Thus, the time Mr. Matthews spent incarcerated at Orleans ParishPrison (OPP) waiting to see a judge cost the City $3,201.77more than six times the $498legal debt the court eventually waived. Additionally, the indirect costs associated with Mr.Matthewss caseincluding the costs incurred by law enorcement in carrying out his arrests,the costs incurred by the court in conducting hearings and stang the collections oce, andcertain additional reimbursement payments the City makes to the Sheri26drive the totalcost even higher.

Mr. Matthewss story is by no means unique: courts routinely incarcerate deendants who areunable to pay, and in the process rack up costs completely out o proportion to the amountsthey hope to gain in LFOs, i they are ever paid. Javon Perrymon was arrested or possession

o marijuana on February 13, 2009.27 He entered a guilty plea in the Magistrate section o theCriminal District Court on April 28, 2009, and was sentenced to six months o probation. Hewas also assessed a $250 ee or the Judicial Expense Fund, a $50 ee or the Law EnorcementFund, and $148 in court costs. He was unable to pay the $448 he owed to the court, and anarrest warrant was issued against him on January 13, 2010. Mr. Perrymon was arrested onMarch 10.28 During Mr. Perrymons status hearing on March 23, his public deender arguedthat because he had no money with which to pay, he should be released rom jailbut thecommissioner presiding over the hearing responded that someone in Mr. Perrymons amilyshould be able to make a payment. Mr. Perrymons attorney called his clients amily membersand his girlriend, but no one was able to pay. Mr. Perrymon was sent back to jail.29

When Mr. Perrymon was brought to court again on March 30, he once again tried to explain tothe court that he had no way to pay his debt. The judge ordered Mr. Perrymon returned to jailor another week. When Mr. Perrymons attorney inormed the commissioner that he intendedto appeal the decision, the commissioner called him up to the bench and inormed him that heintended to release Mr. Perrymon sometime during the next weekbeore the appeal could


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20 | OCTOBER 2010

reasonably be ledand that he was simply imposing jail time as a way to show Mr. Perrymonthat ailure to pay was a serious oense.30 Mr. Perrymon was released on April 6, 2010, andtold to make a payment and come back to court on April 13.31 The City o New Orleans hasthus paid the Sheri $626.92 to incarcerate Mr. Perrymon to punish him or being unable to

pay $448 in nes and ees.

Mr. Perrymons experience is typical o deendants in magistrate court, which handles variousmisdemeanor oenses: nes and ees o around $500 are routinely imposed without a hearingto determine the deendants ability to pay.32 When indigent deendants are unable to keep tothe scheduled payment plan, they are arrested and oten sentenced to spend a certain numbero days in jail, or made to wait until a riend or amily member can raise enough money to payor their release. But deendants amilies are rarely in a better position to pay, and eortsto collect outstanding nes and ees rom them are no less costly than attempts to exact themoney rom deendants themselves.

Many deendants keep up payments or a periodo time. But the specter o jail time or missingpayments always looms over them. Leroy Sorden, ayoung man who helps his unemployed mother careor his six younger siblings, pled guilty to possessiono crack cocaine on April 22, 2009. He received asuspended sentence o two years, ollowed by twoyears o probation, and was assessed a $1,000 ee tothe Judicial Expense Fund. He made a $100 paymenta month ater his guilty plea, but was unable tomake his next scheduled payment because he was

unemployed and relied on ood stamps to eedhis amily, with whom he lived in a two-bedroomapartment rented with housing assistance. He wassubsequently arrested on August 27 or ailure topay his ee. He waited in jail until he was brought

to court on October 8, where he explained to the judge that he could not pay because he wasunemployed. Ater being released, Mr. Sorden ound a job working as a security guard onenight a week, and used the $150 he earned to help support his amily, buy necessities, andpay o his legal nancial obligations. The debt cut into [his] lie and let him with very littleincome, but he made regular payments, appeared in court to ask or an extension when heneeded one, and once borrowed $25 rom his grandmother in Mississippi to ensure he could

meet his obligations. Yet more than a year ater his original sentencing, Mr. Sorden still owesaround $600.33

The costs to the City to jail poor deendants who cannot pay modest legal debts are compoundedby the time and resources expended by courts and law enorcement to track down deendants

Leroy Sorden spent over

a month in jail ater he

could not make a $100 LFO

payment. At the time he

was jailed, Mr. Sorden was

unemployed and was using

ood stamps to eed himsel,

his mother, and six siblings.


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who have missed payments. Oten, deendants are dragged back into court or ailing to paynes and ees they incurred rom minor oenses they committed many years ago. Jacob Joneswas arrested on February 1, 2002, or possession o marijuana, and posted a $500 bond. Heailed to appear or arraignment, and was arrested againmore than seven years lateron

August 12, 2009. He pled guilty to the possession charge on August 24 and was sentenced to90 days at Orleans Parish Prison and six months o probation. He was assessed a $100 ne,$148 in court costs, and a $50 ee or the Law Enorcement Fund. On September 21, 2009, heappeared without counsel or his status hearing, and asked or an extension on his paymentsuntil October 19, which was granted. He was arrested on October 24 ater he ailed to appearor his hearing. Ater spending 31 days in jail (at a cost o $694.09 to the City) Mr. Jones wasbrought to court on November 23, again without counsel. The presiding commissioner toldhim that he would be released i he made a payment on the $298 he owed in nes and ees.34

Mr. Joness girlriend came to court and tried to make a $60 payment, but the commissionerreused it, saying it was not enough. Mr. Jones was sent back to jail, and was only releasedwhen his girlriend was eventually able to make a $100 payment. Mr. Jones had paid o all o

his nes and ees as o March 25, 2010, but his contribution will not cover even hal o what theCity spent trying to collect them.35

The costs to the courts and the City to pursue and incarcerate poor deendants unable topay their legal debts also pales in comparison to the human cost borne by the deendantsthemselves. Because they are able to make only small payments toward their nes and ees,many o these men and women can remain ensnared in the criminal justice system or years,and they may nd themselves back in jail when their legal debts become unmanageable. ToreyTobias was trapped in the system or almost six years ater pleading guilty to possessiono marijuana in October 2004. He was assessed $748 in nes and ees, and made regularpayments o between $24 and $50 to the court through 2005, lowering his total debt to $434.

When he ell behind on his payments in 2006, the court issued a warrant or his arrest. He wasarrested in November 2008 and released 18 days later when he made another partial payment.He ell behind again in January 2009. A year later, in January 2010, he was arrested and spentanother ten days in jail. He was released when the court decided to waive his remaining $434in nes and ees.36 In all, the City paid the Sheri $626.92 over ve years to incarcerate Mr.Tobias or his unpaid LFOs.

Judges need not impose nes and ees upon deendants who have no means to pay, particularlysince they have the discretion to convert these costs to a community service requirement. Butas Chie Deender Bunton explained, many judges mechanically impose nes and ees withoutregard to the individual circumstances o the deendant: I recall having one client who was

assessed a $400 ne or a marijuana oense. When she argued that she couldnt pay the ne,the judge could not come up with an alternative penalty: The court just short-circuited. It wasso hard or the judge to even consider an alternative to assessing ees and nes that she justreset the sentencing hearing or a week later, and said she would speak to her colleagues.37


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22 | OCTOBER 2010

Even when community service requirements are imposed in place o nes and ees, indigentdeendants can have diculty meeting those requirements due to cost. Gregory White, onesuch deendant, lost contact with his amily in Hurricane Katrina and has since worked oddjobs cutting grass and washing dishes, occasionally receiving ood rom people he knows.Three

years ago, he was evicted rom the apartment he ound with the help o a non-prot groupthat assists the homeless, and moved into an abandoned house in Algiers, a neighborhoodin New Orleans.38 On October 18, 2009, he was arrested or stealing $39 worth o ood rom aSav-A-Lot. He was unable to pay his $3,000 bond, and spent almost eight weeks in jail beorehe was brought to court and entered a guilty plea on December 10. He was assessed a $200ee or the Judicial Expense Fund, a $100 ee or the Indigent Transcript Fund, and $39.92 inrestitution or the ood he stole.39 He did not tell anyone at the court that he would be unableto pay, because I just wanted to get out o this hellhole [OPP].

Mr. White was arrested again on January 25, 2010, or squatting in an abandoned house, theonly place that he could nd to stay. His public deender had not been able to get in touch

with him to oer assistance in procuring social services, because Mr. White did not have aphone.40 When he was brought to court on January 29, the judge converted his nes and eesto 100 hours o community service.Mr. White was released rom jail that evening, but thecommunity service oce was closed. He returned to the Algiers section o New Orleans, andnever returned to the courthouse or the community service oce because he did not haveenough money to pay the bus are.Mr. White was arrested again on March 14, and brought tocourt our days later.When Mr. Whites public deender argued that his probation should not berevoked because he had no money to pay bus are and thus could not complete his communityservice, the judge called her to the sidebar, removed her rom representation, and demandedanother attorney agree to represent him. Mr. White reports that he was then told that he wouldonly serve our days i he waived the hearing and admitted to the allegations. When he did so,

however, his probation was revoked and he was returned to prison, where he was scheduledto remain until June 20, 2010.41 By the time Mr. White was released, he would have spent 198days in jail, at a cost o over $3,500 to the Citymore than ten times the $339.92 it hoped toextract rom a homeless man who stole less than $40 worth o ood.

Fines or Time in Orleans Parish Municipal Court

Deendants in municipal courtgenerally charged with low-level public order oensesareroutinely assessed LFOs upon conviction and given a 30-day suspended sentence regardless

o their ability to pay (although there is a presumption o indigence i a particular deendantis currently incarcerated).42 Judges sometimes allow deendants to do community serviceas an alternative to paying the ne, but municipal court records show that such alternativesentences are not regularly imposed. A possible explanation or this comes rom municipalcourt personnel, who said that the court puts the burden on the deendant to propose a


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community service sentence, and typically determines a deendants nancial status bymaking quick judgments based on his home address and physical appearance.43 I a deendantails to pay his nes within the time set by the court (usually thirty days, but municipal courtrecords show that payment deadlines are sometimes as short as two days rom the hearing),

a warrant issues or his arrest. Once arrested, the deendant is returned to court; i he is stillunable to pay the ne, he is usually sentenced to spend a ew days in jailalthough in somecases a judge will require the ull thirty days to satisy the suspended sentence.44

Judge Calvin Johnson, who retired in January 2008 ater seventeen years on the bench inCriminal District Court (including two years as Chie Judge), recalled that deendants receivednes or time sentences every day in municipal court.45 He also noted that the nes ortime practices in Orleans Parish municipal court may cost the City more than it collects.Judge Johnson said that during his two-decade tenure on the Orleans Parish criminal bench,deendants regularly were sentenced by the municipal judges to pay $100 in nes, or serve 30days in jail. As Judge Johnson explains, 30 days or $100that was something I heard every

day. Now, how can you describe a system where the City pays $23 a day to the Sheri to housesomeone in the Jail or 30 days to collect $100 as anything other than crazy?46

In addition to being costly, such nes or time sentences are illegal. The U.S. Court oAppeals or the Fith Circuit, which includes Louisiana, has held that courts may not impose asentence requiring a deendant to choose between either paying a ne orthwith or servingtime in jail; there is no justication or imposing such a sentence, as both the states interestin collecting nes and in rehabilitating oenders and deterring uture criminal activity may besatised instead by other methods o ne collection, such as an installment plan.47 In 2007, acomplaint was led in ederal court on behal o indigent deendants appearing in municipalcourt in Orleans Parish.48 Certain judges in the municipal court at that time requently imposed

nes or time sentences that required deendants either to make immediate payment onnes assessed upon their conviction, or to be incarcerated.49 The lead plainti in the case,Percy Dear, who suers rom epilepsy, schizophrenia and bipolar disorder, was arrested andcharged with begging in February o 2007. He pled guilty and was sentenced to pay $200immediately or to spend twenty days in the Orleans Parish Prison. When he was unable to pay,he was incarcerated.50 The complaint alleged that such nes or time alternative sentencingcreated a system in which indigent deendants would always be orced to accept jail time, whilethe wealthy would be able to avoid imprisonment.51 The plaintis dismissed their lawsuit inOctober o 2007 ater negotiations with the municipal court resulted in an agreement to put astop to nes or time sentencing.52

To assess whether the courts are still adhering to the Dearsettlement, Katherine Mattes,director o the Criminal Litigation Clinic at Tulane University Law School, went to observethe courts proceedings during the second week o April 2010, along with Colin Gilland, acontributor to this report. Proessor Mattes explains what she saw: As soon as we opened thedoor, we heard the judge sentence a deendant to $150 or 30 days in jail. We then sat down,


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24 | OCTOBER 2010

and the baili came up to us and asked us what we were doing there. We told him we wereobserving what was happening in court that day. The baili then went directly to speak withthe judge, and on that day we did not see another deendant get a nes or time sentence.

As Proessor Mattes observed, it appears that there has been some backsliding in municipalcourt practices since Dearwas dismissed.53 In March 2010, at least 32 deendants received anes-or-time ultimatum in municipal court ater rst receiving a suspended sentence andbeing ordered to pay a ne.Most o these deendants received ultimatums to serve 10 daysor pay between $100 and $200 and nes. During the week o May 17, 2010, the court orderedseven deendants to pay a ne or serve jail time. Six were incarcerated. The nes assessedagainst these six men totaled $1,100, but their combined sentencesa total o 65 days injailwill cost the City $1,455. From May 24 to May 28, 2010, nine deendants were given suchsentences, ordered to pay a total o $1800 in nes or spend a total o 138 days in jail. Seven wereincarcerated. I they served their ull sentences, the cost to the City would come to $2,373.34.54

One o these men was Walter,55 who has worked collecting garbage, cleaning barges andcutting grass or the past six years. He was arrested in March 2010, at a bar on RampartStreet, or disturbing the peace and trespass.56 His cousin, who had brought him to the bar,had previously been banned rom that bar or disorderly behavior. When the bartender sawWalters cousin, he called the policeand although the bartender inormed the ocers thatWalter was not causing any trouble, they arrested Walter along with his cousin. A ew dayslater, he was brought beore the municipal court and sentenced to pay $150 or spend 10days in jail (at a cost to the city o $223.90). He told the court he had no money, and so he wasincarcerated. He lost his job and his apartment, leaving his girlriend homeless. By the timehe was released, his girlriend had moved to Texas to live with her mother. Walter believes hecould have paid the ne in 30 days i he had been allowed to pay in installments.57

This is not the rst time Walter has been orced to choose between paying nes he cannotaord and being incarcerated. In November 2009, he was arrested ater he got into a streetght, and was ordered to pay $300 or spend 30 days in jail. He was arrested again in March2010 or public drunkenness at a bar on Bourbon Street, and told to pay $200 in nes. BecauseWalter has been in and out o jail, he has had diculty holding down a job that would allowhim to pay his debt. He has made attempts to pay, however, by borrowing money rom hismother to try to meet his obligations. Walter believes he has spent close to a year in jail overthe course o his lie because o his inability to pay nes and ees.58


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II. Special Focus:New Orleans Broken Funding Scheme or Its Criminal Justice System

Courts in Orleans Parish could not unction without the nes and ees they collect rom

deendants. As Proessor Pamela Metzger o the Tulane University Law School stated, thejustice system simply cannot aord to have ewer crimes.59 Judge Johnson explained thatthe courts reliance on collections is the result o a deective system o unding: The courtsare unded improperly. I courts were unded correctly, this would not be an issue. Courts tryto maintain themselves on the backs o the people who use them, which are the poor people.This is just not right.60

When courts attempt to extract their unding rom deendants in the orm o nes and ees, theburden alls most heavily on those who can least aord it. The poor are captive to a system thatpunishes poverty with incarceration and can perpetuate recidivism by adding another barrierto re-entry into society or those men and women who ace legal debts they cannot meet. As

Chie DeenderBunton said: People start o moving backwards. Saddling the indigent withdebt puts them in a position o having to do some other bad thing to get the money to keeprom going to jail or the rst bad thing they did. 61 Judge Johnson added, They have a elonyconviction and they cant get a job, but they need the money or they will go to jail, so theyconsider committing another crime.62

Without nes and ees collected rom deendants, however, the criminal justice system inOrleans Parish would simply cease to unction. For scal year 2009, the Orleans ParishCriminal District Court projected just over $4 million in revenues or the courts generalundand collected $1,470,191 rom deendants over the course o the year.63 Although someo this money is routed to other unds and agencies, it is clear that collections rom deendants

provide essential nancial support to the Orleans Parish criminal court system. In act, therate o collections seems to have accelerated recently: A public records request to the JudicialAdministrator o the Criminal District Court o Orleans Parish revealed that rom March 1-142010, the court collected a total o $111,522.75 in nes, ees and costs. Over a one-year period,this would translate into $2.67 million in revenue, or about two-thirds o the courts annualgeneral und budget.

This broken unding system or criminal courts in Orleans Parish creates improper incentivesor judges to impose and aggressively collect nes and ees. The Judicial Expense Fund,rom which district court sections pay or courtroom improvements such as carpeting andmicrophone systems, is unded mostly by collections o nes and ees.64 Judges ace pressurerom their colleagues to assess and collect more nes and ees. Judge Johnson reported thatduring his time on the bench, poor courtssections which collect little rom deendantsdid not have the same amenities as sections that assess nes and ees sucient to satisytheir needs.65 Chie Deender Bunton has seen many cases sped through to conclusion sothat courts can collect nes and ees as quickly as possible: Court operations are volume-


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26 | OCTOBER 2010

dependent. They want to push as many people through as possible in order to gain economieso scale, which creates untoward incentives. The court needs a lot o trac ees, and it needscases to proceed quickly so it can get the money. Its no accident that trac and municipalcourt are the biggest revenue sourcesthey process people aster.66 The pursuit o revenue,

he explained, can overshadow what should be the courts undamental purpose. Fundingthrough nes and ees puts a premium on speed at the expense o accuracy, or even airnessand justice, because nes and ees can only be assessed and collected ater the case isresolved. Judges ace pressure to clear cases o the docket and collect nes and ees quickly.They dont want to be the slow judge.67

Judge Johnson, who was reluctant throughout hiscareer on the bench to assess nes and ees againstindigent deendants, acknowledged that there iscertainly an appearance o impropriety whenjudges are orced to take into account the nancial

needs o their own courtrooms in determining how topunish a deendant or his or her crime. Its wrong.Using your own needs to determine what happens toa deendant is wrong. Or, at least, having a systemwhere you could be infuenced is wrong in itsel. Itsnot the way a justice system should run.68 JudgeJohnson also believes the unding system oendsbasic notions o airness: It is wrong to use peoplewho come into the system to pay or the systemitsel even when some people havent done anythingwrong, Judge Johnson said, explaining one o the

problems with oisting the cost o justice onto thosewho come beore the court. You have to remembera lot o people who came beore me were innocent.Not all o them, or even most o them, but many

were.69 However, even deendants who were cleared o their charges may have neverthelessbeen orced to pay the $40 ee or the appointment o their public deender.70 Judge Johnsonscriticism echoes guidance rom the American Bar Association and the Conerence o StateCourt Administrators; both organizations call or states to provide adequate budgets or theircourt systems that do not depend on revenue rom ees and nes.71 These principles shouldapply even in times o scal crisis: [T]he bottom line remains that the executive and legislativebranches are constitutionally obligated to adequately und the judicial branch.72

The courts are not the sole beneciaries o the nes and ees that fow into their coers. Feesdirected to the oce o the public deender and to law enorcement are routinely chargedalongside statutory nes and court costs, because judges are well aware that such ees arenecessary to keep the system afoat.73 Indigent deendants are charged nes and ees at

This is a system that at the

ront end appoints you a lawyer

because you are too poor to

hire one, then at the back end

ignores what it has done and

puts a ne on you, knowing

you cannot pay it . . . It is just a

waste, and one caused because

we do not und our courts like

we should.

The Hon. CALVIN JOHNSON


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every step o the process; the Orleans Public Deender, or example, receives about a thirdo its annual $6 million budget in ees charged to deendants who must rely on appointedcounsel because they cannot aord their own lawyers; the oce could not operate i such eeswere not collected.74 Chie Deender Bunton recognized that there is a value to ensuring that

deendants make some investment in their representation. But i you cant aord a lawyer,he acknowledged, you cant aord a lawyer.75 This is a system that at the ront end appointsyou a lawyer because you are too poor to hire one, then at the back end ignores what it hasdone and puts a ne on you, knowing that you cannot pay it, Judge Johnson said, notingthat some 80 percent o the deendants who came beore him were indigent. How is that asensible justice system? It is just a waste, and one caused because we do not und our courtslike we should.76

The Orleans Parish Criminal Sheri is almost certainly one o the biggest beneciaries oNew Orleans debtors prisons, though the amount o money he has collected or jailingdebtors is unknown. In April 2010, the ACLU o Louisiana sent a public records request to the

Sheri asking how many prisoners were being held at OPP or ailing to pay LFOs.77 His oceresponded that it was unable to produce the requested records.78 Despite the Sheris lacko transparency, however, publicly available inormation shows that the City o New Orleanspaid the Sheri $26.7 million in 2009 or in-custody charges, plus several million dollars inother reimbursements, to incarcerate men and women charged with or convicted o municipaloenses, and those charged with state crimes.79 Thus, even i debtors constitute only a smallportion o the OPP population, the City certainly is spending signicant unds each year toimprison them.

There is also no publicly available account o how much the courts collect rom deendants, orhow those unds are spent. In April 2007, Sae Streets/Strong Communities, a local organization

that assists ex-oenders and seeks to reorm the criminal justice system in Orleans Parish,led a public records request to then-Chie Judge Raymond Bigelow, asking the OrleansParish criminal court to reveal the extent to which the Judicial Expense Fund was unded bycollections rom deendants and how those unds had been used. The judge reused to revealhow the money had been spent, but did later amend the handling o the Judicial Expense Fundso that collections and expenditures were centrally administered. Judges attempts to reormthe unding system and to increase the amount o money the courts receive rom the City andstate government have allen short. Judge Johnson and others have advocated or increasedtransparency in the way unds are collected and distributed: What should happen with allnes money is that it goes back to the state. Then the courts have to get in line and justiy tothe state what unds they need to operate. It should be all above boardthe money collected

and going in, and the money going back out to the courts or them to operate.80

We should get away rom the idea that the criminal justice system is or-prot, or that itsgoing to und itsel when it is aimed at and used by the poorest people, Chie DeenderBunton said. There should be real incentives to have some visionto nd ways to mitigate


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28 | OCTOBER 2010

the eects o the system on the community.81 For now, deendants are incarcerated every daybecause o their inability to pay, and the City continues to throw money away by incarceratingmen and women who will never be able to pay their debts. While this sel-deeating undingsystem remains in place, indigent deendants remain trapped in a vicious cycle o nes and

imprisonment; the cycle will not stop until the courts can look elsewhere or their nances.Meaningul reorm is urgently needed to ensure that no one is imprisoned or poverty, and thecourts no longer eel compelled to wring their unding out o those who are among the leastable to pay.

III. Recommendations

1. In accordance with the ABAs recommendations and the standards adopted bythe Conerence o State Court Administrators, adequately und the criminal courts

and aliated agencies rom general revenue so that they can carry out their basicunctions without relying on money collected rom the payment o LFOs.82 Additionally,to eliminate judicial incentives to assess high nes and ees against deendants, LFOrevenue should be paid into the citys general budget, not earmarked or the courts.Treatment and diversion programs should also be unded independently o ees paidby deendants, and no one should be dropped rom a diversion program because he orshe is unable to pay.

2. Determine deendants ability to pay beore any assessment o nes, ees or costs.This determination should be consistent with other determinations o indigence(such as that conducted by the oce o the public deender to determine whether a

deendant will receive appointed counsel) and should ensure that indigent deendantsare not assessed nes, ees, or costs. Alternatives to nancial accountability, such ascommunity service requirements, should be oered consistently to all deendants whoare unable to pay.

3. Collect and publish data regarding the amount o nes, ees, and costs collected romdeendants, the allocation o those unds, and expenditures unded by such collections.

4. Collect and analyze data pertaining to the cost o LFO collections (including the costs oincarceration, collections agents, law enorcement costs, court administrative costs,and other costs incurred in LFO collection) in order to determine whether current

collection methods are cost-eective.

5. End the practice o incarcerating individuals who are too poor to pay their legal debts.Courts should oer community service as an alternative to LFOs, but should ensurethat deendants oered community service have the nancial means to complete thisservice.


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MICHIGAN

A commitment to improve court collections will improve thecredibility and integrity o the court and, at the same time, increase

revenue or the recipients o these unds.

STATE COURT ADMINISTRATIVE OFFICE, Trial Court Collections Standards

and Guidelines Manual (July 2007)

I. LFOs in Michigan

Michigan, a state hit harder than most by the recession, is trying to nd operating unds inthe most unlikely o places: the pockets o poor people who have been convicted o crimes.Though the Michigan Constitution orbids debtors prisons83 and state laws explicitly prohibitthe jailing o individuals who cannot pay court nes and ees because they are too poor, judgesroutinely threaten to jail and requently do jail poor people who cannot pay. As in many states,the courts do not actually assess an individuals indigence and instead use jail and the threato jail to squeeze the poor deendant and his or her amily or as much money as possible. And,though data rom the state and urther study are necessary, communities o color in Michiganmay be disproportionately burdened by debtors prisons because those communities aredisproportionately poor84 and overrepresented in the states prisons and jails.85

Consider the case o Kawana Young o Washtenaw County, a 25-year-old single mother otwo boys, a 6-year-old and a 9-year-old. Ms. Young never had been in trouble beore 2005.That year, she was ticketed because she orgot her license at home. Over the next severalyears, Ms. Young received several more trac tickets or oenses like driving with loud musicand an expired tag. Although many individuals could have paid these tickets and moved onwith their lives, Ms. Young couldnt aord the nes and ees. She has had a hard time ndingemployment in the last ew years and was repeatedly laid o rom work. To ulll her LFOobligation, Ms. Young perormed community service at an elderly living center. Then, the daybeore her LFO payments were due, her probation ocer told her that her community servicetime would not count because the center was not nonprot.

In March 2010, Ms. Young was driving home with her children when she was stopped by thepolice who told her she had three outstanding warrants or ailure to pay. Ater making sureher children were taken care o, she cooperated with the police and accompanied them to thestation. She spent the night in jail, awaiting her day in court. When she was brought beore ajudge the ollowing day, the judge told her that she had to pay $300 or serve 3 days in jailon just


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30 | OCTOBER 2010

one o her warrants. I have every intention o payingbut I just dont have that kind o money right now,she told the judge. She wanted to go on a paymentplan, but the judge reused. Ms. Young was sent to

jail or three days because she was too poor to paythe ees. The jail also charged her a booking ee anda daily pay-to-stay ee. Ms. Young was then orderedto pay $400 on her second warrant in May 2010 inWayne County, also on a trac oense. In all, she hasbeen sent to jail ve times due to nonpayment. Shehas recently requested an extension rom the judgebecause she is starting a new job and needs a littlemore time to make her payments. She is also tryingto catch up on rent and make sure her children have

ood and other necessities. I just need a chance to do right, said Ms. Young. It doesnt make

sense to jail people when they cant pay because they denitely cant pay while theyre in jail.86

Deendants are hit with a variety o nes and ees upon conviction. They are required to payrestitution to the victim, $60 into a crime victims rights und, and $60 o minimum statecosts per elony count.87 The court usually then assesses additional court costs, nes, attorneyees, monthly probation or parole oversight charges, and the cost o any emergency responsenecessitated by the crime.88 A 20 percent late payment ee is imposed on the entire amountnot paid within 56 days o the due date.89

Patricia Slomski, an attorney in southeastern Michigan, notes that many o the ees that landpoor individuals in jail are baseless. In so-called rocket-docket courtrooms in Wayne County,

where judges try to sentence as many deendants as quickly as possible, the assessmento lawyer ees have no relationship toand are oten much higher thanthe actual cost orepresentation. Ms. Slomski notes that in her experience, deendants have been charged$400 to $500 in counsel ees when the attorney was actually paid $75. No one cares about adeendants ability to pay, she says, because an indigence hearing takes time, and contestedhearings are cost-prohibitive.90

Some deendants who end up incarcerated due to unpaid LFOs are also assessed a $12 jailentry ee, $60 per day or jail room and board, and reimbursement to the correctional acilityor medical and other services.91 Most troublingly, some jails use these ees as an excuseto unilaterally and unjustiably extend individual sentences. Sister Marietta Fritzwho runs

the Saginaw Emmaus House, which helps incarcerated women with re-entrynotes that theSaginaw County Jail tells the prisoners they have to pay the $12 administrative ee to getout o jail. Sr. Fritz has paid that ee or at least one indigent woman out o her own pocket,deciding not to test the jails willingness to break the law and imprison the woman becauseshe was indigent. Sr. Fritz has also seen women charged almost $10,000 in tether ees

I just need a chance to do

right. It doesnt make sense to

jail people when they cant paybecause they denitely cant

pay while theyre in jail.

KAWANA YOUNG, who was jailedve times or ailing to pay LFOs onseveral trac oenses.


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parole supervision ees charged by the Michigan Department o Corrections at approximately$95 per week or two years. Nonpayment o these ees is reported to credit bureaus, therebydecreasing the released prisoners chance o nding a job and a place to livepositioning hernot or reintegration into society, but or re-entry into the criminal justice system.92

Because there is no statute that authorizes a credit against legal debt or every day that adeendant is incarcerated,93 many indigent deendants who are incarcerated rack up higherand higher debts without making a dent in their LFOs. For example, in late 2009, Walter Riepenwas sentenced to 30 days in jail and probation. At sentencing, the judge assessed nes andcosts, but said in open court that Mr. Riepen could do community service instead o paying hislegal debt because he was indigent. The probation ocer, however, inormed Mr. Riepen thathe was not permitted to do community service to work o his $180 in court costs and $240 inprobation supervision ees. The ocer told him that i he did not pay the debt in ull, he wouldbe in violation o his probation and would go back to jail.

Beore he was released rom jail, Mr. Riepen was asked by ocials to sign a orm notingthat he owed the jail money or room and board. Because he was ound indigent at his trialand was appointed an attorney, he reused to sign it. Within days o his release, he receiveda letter rom RDK Collection Services, containing a bill or $60 per day or his jail stay, or atotal o $1260. Mr. Riepens only income is a social security disability payment. Mr. Riepen wasinormed i he did not pay this bill, he would be sent back to jail.94

Mr. Riepen began a payment plan to pay $20 a month$10 or the probation costs, and $10 orthe court costs. Though these amounts are modest, Mr. Riepen has had diculty making thesepayments on his xed income while also carrying out his community service responsibilitiesunder his sentence. In February 2010, the week he made the $20 payment, he could not

perorm his community service because he did not have any money or gas. He has no undsto pay down the $1260 or his room and board. The Constitution is completely ignored, notesJane Riepen, Mr. Riepens wie. I youre never exposed to it, you think everythings okay.Thats where we were or a long time, and then one day . . . .95

Michigan courts impose the ull amount o ees and nes possible at sentencing,96 andrequently make payment a condition o probation.97 The entire amount must be paid at thetime the ees are assessed, unless the court allows a payment plan or good cause. 98 Mostproblematically, a deendant cannot even bring up his indigence at the time a judge imposesLFOs because he is not entitled to an ability-to-pay assessment until the imposition o theee is enorced.99 Though the Michigan Supreme Court has stated that a truly indigent

deendant [should] never be required to pay ees,100 in practice, it is the deendants burdenboth to raise the issue o indigence and to prove it. As a result, deendants without attorneys(a requent occurrence at post-sentencing review hearings) are at a distinct disadvantage andare particularly likely to succumb to the threat o jail.


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32 | OCTOBER 2010

Attorneys, however, are no guarantee that indigent individuals will be heard as to their poverty.In 2003, Regina Roberts, a 49-year-old single grandmother in Kent County, was receiving oodstamps and working as a resident care aide. Ms. Roberts suers rom lung disease, bipolardisorder, and depression, but was trying to make ends meet by working and taking college

courses at Davenport University. When the time came to get her ood stamps recertied, sheasked her caseworker or help lling out the orms. The caseworker didnt correctly reporther income and Ms. Roberts was charged several years later with welare raud. She had acourt-appointed attorney at the hearing who told her not to say anything. Ms. Roberts didntknow what to do or say, and elt out o her head and shocked, ater being told that she aced10 years in prison. She never got to share her side o the story about the caseworker or herindigence. As a result, Ms. Roberts was convicted o welare raud and sentenced to 2 yearso probation, $2,760 in probation supervision ees (later reduced to $600), $720 in costs andees, and $3,181 in restitution.

Ms. Roberts has no income other than disability

paymentsshe was injured on the job and then laidoand is now waiting or a lung transplant. Still,despite having to pay signicant medical expenses,she was making small but regular payments to paydown her debt. The probation ocer, however, wasdissatised with the sacrices Ms. Roberts made,and asked the court to extend Ms. Roberts probationor another two years. Ms. Roberts had complied ortwo years with all conditions o her probation, save orpaying the entire amount o over $4,500 in LFOsbuther probation was extended or another two years,

thus perpetuating the threat o jail. She was nallydischarged in July 2009, but still owes over $2,865 in

restitution and ees, in addition to outstanding supervision ees. She had to return to court inSeptember 2010 or a hearing to show cause as to why she should not be held in contemptor ailure to pay. This is a nightmare, she says. Ive been passed through the cracks andsuering all my lie, but this just makes me sick.101

Similarly, the involvement o attorneys did not prevent Selesa Likine rom being convictedor ailure to pay child support that she could not aord. At the time o her trial, Ms. Likinewas a divorced mother o three who was unemployed and living with her mother. Ms. Likinehad paid some, but not all, o the child support she owed or the period o February 2005

to March 2008 because she suered rom severe mental illness and had almost no incomeduring that time. She was considered totally disabled by the Social Security Administrationater being diagnosed with schizoaective disorder and major depressive disorder, and hadbeen unemployed since September 2005 ater a lengthy hospitalization. The Family Divisionhad erroneously imputed to her an income o $5,000 per month, resulting in required child

This is a nightmare. Ive been

passed through the cracks

and suering all my lie, but

this just makes me sick.

REGINA ROBERTS, who wasassessed almost $7000 in LFOseven though she was indigent andreceiving disability payments.


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support payments o $1,131 per month. In act, Ms. Likine never earned more than $19,000per year, was unable to work during the period in which she ell behind in her payments,and subsisted on payments o $603 per month rom the Social Security Administration aterJanuary 2006.

Ater Ms. Likine was unsuccessul in getting the Family Division to modiy her child supportpayments, the state led elony charges against her. The Oakland County Circuit Court barredMs. Likine rom raising the issue o her inability to pay. Deprived o the chance to explainher circumstances to the jurywhich had explicitly asked whether she was employed duringthe time she was obligated to pay the child supportMs. Likine aces the prospect o beingrequired to pay more than $40,000; her court case is pending.102

Likewise, Louis Kalman o Lenawee County spentover three years in prison when he could not aordto pay $24,873 in child support or one o his children.

Mr. Kalman was in trouble with the law rom a youngage and spent most o his sons childhood behindbars on other charges. Nonetheless, he worked whenhe could and paid as much as possible, in amountsranging rom $4.82 to $300. It was oten less than therequired amount o $75 per week, because even at thetime o trial, he was earning only $200 per week, witha weekly rental payment o $100. Ater he pled guiltyto ailure to pay child support, his attorney explainedto the court that her clientone o the states manyworking poorwas doing everything in his power

to ulll his obligations, and that to sentence him toprison or his eorts would be undamentally unjust.She presented a letter rom his previous employerstating that he might be employed there again uponrelease. Mr. Kalmans signicant other shared withthe court that Mr. Kalman was also at that timeresponsible or taking care o his elderly and ailingather. Mr. Kalman himsel asked or the opportunityto try and go back to these jobs that [he] was trying toget hammered down or ull time so that he could ulll his responsibility to his children andhis ather. Moreover, the mother o Mr. Kalmans child asked the court not to put Mr. Kalman

in prison because simply as a practical matter it means she gets no money. The court ignoredthese arguments, however, sentencing Mr. Kalman to two to our years in prison, noting thatMr. Kalman was a deadbeat dad who has not made any reasonable eort to pay. The courtthen specically ordered that child support payments continue to accrue while Mr. Kalmanwas in prison, thus ensuring that the cycle o jail and inability to pay will continue.103

I do know that I have a

responsibility to [my children].I also eel that I have a

responsibility to my ather. Im

asking this Court to give me

the opportunity to try and go

back to these jobs that I was

trying to get hammered down

or ull-time.

LOUIS KALMAN, who wasimprisoned or more than threeyears or ailure to pay childsupport, even though the childsmother asked or him to beallowed to continue working.


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34 | OCTOBER 2010

The Fallacy o Willul Reusal to Pay

Beore a court attempts to enorce any payments due, Michigan law requires it to determinean indigent deendants ability to pay by taking cognizance o the individuals resources,

the other demands on his own and amilys nances, and the hardships he or his amily willendure i repayment is required.104 Under United States Supreme Court law, a court mayonly consider revoking probation i a deendant willully reused to pay or ailed to makesucient bona de eorts legally to acquire the resources to pay. 105 However, according topublic deender Anne Yantus, judges sometimes dont believe deendants who say they areindigent and have not been able to obtain the necessary unds106

The State Court Administrative Oce (SCAO) recently ormalized a previously unwritten rulethat all deendants must pay the minimum state costs, the crime victims rights assessment,and restitution, and should not be allowed to perorm community service in lieu o thosepayments.107 According to the SCAO, these assessments cannot be waived, even i the

deendant is indigent and cannot pay any amount o money. No Michigan law provides suchan exception to the option o community service; as detailed below, this interpretation isresponsible or a great share o the heavy burden borne by indigent deendants who truly have

MY NAME IS DAVID SUTTONand I am a long-timeresident o southeastern Michigan. I have a Ph.D. rom the University

o Michigan but at the time I was frst assessed ees and fnes, I had

no assets and my only income was a $262 monthly social security

disability check I received ater suering severe and permanent

injuries in a car crash that prevented me rom working. In 2003,

I was convicted in a Wayne County court o attempted insurance

raud and sentenced to probation or one year. The judge knew I was

indigent because I had appointed counsel. At sentencing, I reiterated

that I had no unds, but he nonetheless assessed over $1,300 in ees

and costs against me. My appointed attorneywhose legal ees

composed over $800 o my outstanding debtsaid nothing more than

a sentence regarding this matter on my behal.

Ater the judge applied my bond to the Crime Victim Rights Act assessment and the minimum state costs, I

still owed more money than I could possibly pay. I asked or community service and or a hearing, but my pleas

ell on dea ears. Though my year o probation passed without incident, the judge decided to extend it. I fled a

David Sutton (let) and his lawyer, MichaelSteinberg. (Image courtesy o the ACLU oMichigan.)


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no unds with which to pay legal debt. In order to ampliy the threat o jail, courts requentlyextend individuals probation on the ground o nonpayment o these ees or costs, even thoughno state statutes specically authorize courts to extend probation on this ground.108

Jail, Threats o Jail, and the Devastating Eect on FamiliesIn its zeal to collect unds, at least one Michigan court has gone so ar as to jail a mother whoseonly crime was that she was too poor to pay or her sons incarceration at a juvenile hall. InDecember 2008, Edwina Nowlins 16-year-old son was sentenced to the Bay Pines Center;Ms. Nowlin was ordered to pay $104 per month or his incarceration. At the time o this order,Ms. Nowlin was homeless and working part-time with a riend ater getting laid o rom herjob. She told the court that she was unable to pay the ordered amount. The judge ound herin contempt or ailing to pay and jailed her. While she was serving this sentence at the Delta

County Jail, she was released or one day to work. She then picked up her $178.53 paycheckrom work, hopeul that she now could pay the $104 to get out o jail. Upon her return to thejail that evening, however, the sheri orced her to sign over her check to the jail to cover $120

petition asking or remission o the required payment, but I never received a hearing. For the next three years

all passing without incidentI was still not allowed to peror

in for a penny: brennan center reports expose resurgence of debtors’ prisons

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