Marie Diamond of ThinkProgress.org posted an article today, December 13, 2011, The Return Of Debtor’s Prisons: Thousands Of Americans Jailed For Not Paying Their Bills. Ms. Diamond’s article draws attention to the significant constitutional issue of courts sending indigent defendants to jail for failure to pay their financial obligations. The article relies heavily on two reports: A brief story by Susie An of NPR news aired yesterday, December 12, 2011, and a very lengthy report by the ACLU originally published on October 4, 2010. Unfortunately, Ms. Diamond fails to note an important distinction between her two sources: criminal versus civil sanctions.
The NPR story, Unpaid Bills Land Some Debtors Behind Bars, lands squarely in the civil arena. Creditors on behalf of financial institutions sue indigent defendants to collect on their debts. Then when the defendants fail to appear in court, bench warrants are issued and the defendants can be arrested. This is an issue of sloppy litigation and court administration. A first step in any civil litigation is service of process on the defendant. Except in special circumstances, this means someone is supposed to physically hand the defendant a copy of the Summons and Complaint. (This is to ensure that the defendant has actual notice that a suit has been brought against him or her and has an opportunity to respond to the allegations in the complaint.) But according to Ms. An, this simply isn’t happening. Instead, the creditors appear to be sending out notices to address that may or may not still be valid without any confirmation of receipt, and then when the defendant fails to arrive at the hearing because he or she never actually received the notice, a bench warrant is issued. It should be the creditor’s obligation to ensure proper service of process on the correct defendant (and not the underemployed son of a long-deceased defendant as I recently witnessed), but it should also be the responsibility of the court to verify that proper service has been made before taking the extreme step of issuing a warrant for the defendant’s arrest and subsequent incarceration.
Of greater concern are the criminal court circumstances described in the ACLU report, In For a Penny: The Rise of America’s New Debtors’ Prisons. The report describes in detail how indigent defendants in the criminal systems of 4 states, including Michigan, suffer severely increased penalties for the same crimes when compared to more their well-to-do counterparts, due solely to their inability to pay the fines, costs, fees, and restitution payments (fines and costs) ordered by the courts. (It should be noted, due to the length of the article, I have not read the portions on Ohio or Washington at the time of this writing.) These fines and costs are ordered summarily without consideration of the defendant’s ability to pay. This is true even if the defendant has a court-appointed attorney or has been charged with crimes related to lack of funds, such as begging or failure to pay child support. Courts regularly disregard the mandate of the United States Supreme Court that they must inquire as to the reasons behind a defendant’s failure to pay fines and costs before sentencing him or her to prison and that they not impose prison sentences based solely on a person’s poverty. Bearden v. Georgia, 461 U.S. 660 (1983). Why do they do that? 1) Because the courts have very busy dockets and full evidentiary hearings take a great deal of time. 2) Because the courts keep a considerable portion of the fines and costs paid by the defendants.
I was recently observing the 36th District Court in Wayne County, Michigan, where a defendant was present for a pretrial on a misdemeanor offense. He had more than $2,000 in unpaid fines and costs. The defendant attempted to explain his financial circumstances and the need for time to pay the outstanding balance, but the judge cut him off saying something to the effect of, “And I wish the city had money for its budgets, but it doesn’t because we have so much outstanding money owed to the court.” The court then required the defendant to make a substantial payment forthwith and threatened jail time if the payment was not made. This example demonstrates the very important message set out by the ACLU. The indigent defendants of this state are being imprisoned solely on their inability to pay court-ordered fines and costs. This is a direct violation of Bearden. What is worse, the State Court Administrative Office (SCAO) specifically endorsed such behavior as “best practices” for increasing court revenue. As a member of the State Bar of Michigan and a public defender, I urge SCAO if it has not done so already, to reconsider this matter in light of Bearden and the ACLU report, and to instruct the trial courts to make inquiries into service of process and the defendants’ abilities to pay before ordering bench warrants or unmanageable fines and costs.