(Frankfort May 14, 2015) Yesterday, May 13, 2015, the National Association for Public Defense (NAPD) issued a “Policy Statement on the Predatory Collection of Costs, Fines, and Fees in America’s Criminal Courts” (see attached), calling for an end to the assessment of excessive fines and fees to fund government operations. NAPD called upon the judiciary to embrace their responsibility to protect the poor from being jailed when they have an inability to pay the overwhelming and continuously expanding fines and fees and oppressive monetary bonds routinely set in criminal cases. You can read the NAPD Policy Statement in its entirety online at: http://www.publicdefenders.us/sites/default/files/NAPD_Statement_on_Predatory_Collection_Practices.pdf
The NAPD Statement stressed the need to end the current criminal justice monetary policy, which involves the collection of costs, fines, and fees in criminal courts across the United States that are predatory in nature and an economic failure. These predatory practices impact poor people in catastrophic and life-altering ways, and they are disproportionately levied against people of color.
In Ferguson MO, Thomas Harvey, Executive Director of the ArchCity Defenders and an NAPD member, referenced the distrust that develops when a community has the impression that police and courts in the region “engage in low level harassment that isn’t about public safety but instead about money and race. At the time of Mike Brown’s killing, there were over 600,000 warrants for arrest in the St. Louis region, which has roughly 1.2 million people. Most of these warrants are from unpaid fines for non-violent poverty offenses. These warrants, and jailings on the failure to pay fines, act as a barrier to employment and housing. What we are seeing is the connection between the cycle of poverty and the justice system in America.”
Joining in the statement, Janene McCabe, a public defender in Colorado and a member of NAPD stated, “Colorado struggles with the same problem, where municipal courts jail citizens when they do not pay their court ordered fees and fines. The cost to the taxpayers is great and the loss of liberty to citizens means the loss of jobs, housing, and stability. The legislature recognized the courts were spending far more time and money incarcerating people for unpaid fees than they would have collected and acted to change the law. Despite the change, requiring ability to pay hearings, the problem persists in some courts today.”
Calling for change now, Tim Young, Ohio Public Defender and Chair of NAPD said, “We depend on courts to be justice courts, not revenue courts. The presumption of innocence pretrial should not be reserved for people with money while the poor stay in jail, disproportionately impacting people of color; especially when there is no evidence that money bail has any correlation with the risk of reoffending or showing up in court. A fair and balanced system of pretrial release ought to be based on public safety, not on the person’s status as rich or poor. In Ohio and everywhere, jails are extremely expensive and should be used only to protect public safety, not to extort money from society’s most vulnerable.”
The NAPD Statement calls for an elimination of monetary bond. The Supreme Court has ruled, Incarcerating individuals solely because of their inability to pay for their release, whether through the payment of fines, fees, or a cash bond, violates the Equal Protection Clause of the Fourteenth Amendment. It wholly fails to consider the ability of the defendant to pay fines and undermines the constitutional protections against incarceration for costs and fees which are a civil debt. It is a system that favors the wealthy who can make bail over the poor person who cannot.”
Daniel T. Goyette, Chief Public Defender in Louisville and Jefferson County, said “While our state has been characterized as a ‘front-runner’ in progressive bail policy, having abolished bail bondsmen nearly 40 years ago and replaced them with a statewide pretrial services system, our jails are still over-populated by poor people of color, and the reasons have more to do with their socio-economic status than with public safety. That is a continuing concern in Louisville and elsewhere, one which has been exacerbated here by the recent suspension of the 24-hour judicial review process in Jefferson District Court.”
On the other hand, Goyette noted that Louisville Metro Corrections has implemented several innovative programs and taken a number of steps designed to reduce overall jail population. Additionally, as examples of what he termed “a more enlightened approach to corrections in Jefferson County,” he pointed to a recent decision by the Metro Corrections Director not to take people into custody over failure to pay fees, nor to hire a collection agency to recover them. “It makes no sense to incarcerate someone at a cost of $65 per day in order to recoup a lesser amount, particularly when there is no reasonable expectation that the person can afford to pay it in the first place,” Goyette said. “Fortunately, leadership in our jurisdiction recognizes the folly in that.”
Unfortunately, the leadership in other parts of the state often does not necessarily share that recognition or follow the logic of that approach. Ed Monahan, Kentucky Public Advocate, said “the judicial practices on fines and fees and pretrial release across our state are all over the place. Many judges routinely waive fines and costs for indigents and do not impose monetary bail. However, there are other judges, too many, who not only refuse to waive fines and costs, but impose money bail that poor people cannot pay. Fines should never be assessed against an indigent. Costs should not be assessed absent an ability to pay, and no poor person can be constitutionally jailed if unable to pay. A $200 cash bond is an unattainable amount of money for a poor person. Stuck in jail, too many lose their jobs, see their families go hungry, watch spouses leave them, or lose the homes in which they live. Meanwhile, a similarly charged but financially well-off person suffers none of these consequences. A fair and balanced system of pretrial release ought to be color-blind, especially when that color is green.”
Troubling practices in Kentucky include:
§ A poor elderly man whose assault 4th was diverted but whose court costs were not waived by the court, and so he was left to ask churches for help in putting food on his table;
§ A DUI defendant unable to pay $1,008 costs and fees, and was required to serve 20 days in jail in lieu of paying;
§ Defendants not released from jail until payment of a $40 arrest fee assessed by the Sheriff;
§ Poor people given “pay or stay” warrants and then jailed for failure to pay a $500 fine;
§ Defendants who fail to ask for more time to pay fines/fees and are jailed for 180 days or until the money is paid;
§ Defendants who are unable to pay for their $35/day home-incarceration bracelets, and are returned to jail;
§ Defendants revoked because they are unable to get transportation to their drug tests or are unable to pay for them;
§ Diversion programs which carry fees of $400;
§ Courts refusing to waive costs for clients with long prison sentences;
§ Courts setting cash bonds so high that defendants can never post them (often with the intention of ensuring continued incarceration) and then continuing their arraignment for days until the defendant is willing to plead to anything, often foregoing legitimate defenses in order to get out of jail.
Criminal justice costs – including resources required to fund court operations, prisons, prosecutor offices and the right to counsel – are an essential government obligation. Assessing exorbitant fines and fees to people whose contact with the criminal justice system might be as minor as a parking ticket without consideration of the ability to pay is predatory and unconscionable. Further, threatening their liberty for failure to pay is illegal, yet it is an endemic practice in courts across the country. We join with NAPD in calling for an immediate end to these practices in Kentucky and in other states.
 See Tate v. Short, 401 U.S. 395, 398 (1971); Williams v. Illinois, 399 U.S. 235, 240-41 (1970); Smith v. Bennett, 365 U.S. 708, 709 (1961).