Schmidt Law Services Blog

Lisa Schmidt

Michigan Debtor's Prisons – A Very Real Problem

Marie Diamond of 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.

14 Responses

    1. Healthcare is not a constitutionally gruaanteed right. Should it be? That’s the debate. If it is, then why isn’t food constitutionally gruaanteed? Water? Money? Housing? A car and a job? 12 trips a year to a vacation destination? Obviously I’ve taken it to an extreme, but that’s exactly where it will go when we talk about things in the vein you mention constitutionality and Americans’ rights. When we start talking about it like it’s a guarantee, we bring into question what else should be, and then from there, we essentially move into more of a nanny state.

      1. Look at it this way. The Sheriff’s have to get paid for the time they spend serving YOUR dfdeneants. is $60.00 ou tof the fees you charge back to your clients really hurting your profit? I think not.

    2. One problem with the lrwaeys/doctors analogy:If the government pays for your doctor, your doctor is still not being paid by the sponsors of the disease that infects you.When the government pays for your lawyer, your lawyer is being paid by the government that seeks to convict you. There is a systemic bias against providing the accused with a zealous defense.Not to say a good PDs office cannot overcome that systemic bias. It can. Unfortunately, good PDs offices, adequately funded, staffed, etc., are the exception and not the rule. I am all for good PDs offices. Until those who presently qualify are uniformly getting the best defense, I don’t want to further burden PDs.

  1. Criminal law exists to mark icesoty’s abhorrence of certain types of behaviour. Because the State carries out prosecutions, where a wrongful action has been committed, the victim can secure redress regardless of personal circumstances. By this I mean that if you are a poor person who has been the victim of crime, you are able to make a complaint against the person who has committed the offence notwithstanding your lack of funds. My expectation is that such a person would receive the same treatment as a wealthy or powerful person who had been the victim of crime and that if a wealthy or powerful person was believed to have committed the crime, that person would stand trial and, if convicted, be sentenced in the same way as would a person in humbler circumstances. Of course, this doesn’t always happen, as we have noted a number of powerful politicians recently getting away with offences for which ordinary people would be prosecuted, but that is the theory. It would be a bad thing for the system if people could bribe their way out of trouble or, as happens in Italy, people could pay a fine to avoid serving a prison sentence. This may be a means of raising revenue, but it seems unfair to say the least of it.

    1. There is a somewhat siialmr issue concerning trial I find odd. Why is a hung jury not the same as an acquittal? The burden is supposed to be on the state. If the state fails to convince a unanimous jury (ignoring that non-unanimity is allowed in a couple states) the state should be considered to have lost the case not get a do over.I would even go for one juror not being a bar to conviction if two jurors were enough for outright acquittal.I’ve asked a couple law professors this question and the best answer I’ve been given is it’s just always been that way. rather than anything with logical consistency.

      1. Schmidt Law Services

        Good question. I really don’t have an answer for you, but I can see your point. If a criminal conviction requires a unanimous jury, then anything less should be an acquittal, rather than a chance to prove it again. Good luck in your search for an answer.

  2. I don’t think that a $60 flat fee is necessarily uareasonnble. In fact, my process server charges a $65 flat fee to serve people.What I find uareasonnble is that the Sheriff’s office is terrible to try to deal with, impossible to communicate with, and rarely can accomplish even simple service of process.I object to the fact that we have to use the Cook County Sheriff in the first place. Whenever possible I always have a special process server appointed so that I don’t have to deal with the sheriff and I know that service will be accomplished.

    1. There is Medicaid. As far as court appointed larwyes are concerned, I served jury duty 3 times and saw a few of them. None of them wanted the job and they all performed hurriedly and badly, and provided about the same service as Medicaid does, i.e. merely adequate or even less.

      1. How do you implement it? Given the fact that our scoeity can’t even seem to properly fund and leave to manage themselves the defender’s offices for the indigent, what’s to say that this is possible? I’m sure the government would love to gut the private defense bar to nothing and then overwhelm the publicly appointed defense bar with caseloads far beyond their funding.Nice idea in theory, but there would have to be an entirely independent body to implement it, which there never would be.I’ll have some more thoughts on this later. Tired right now.

    2. Other systemic ieiquitnes that I am hard-pressed to solve:1) Bonding out of jail. If I were arrested on all but the most heinous of crimes, I’d be at the mercy of the local jail’s processing time to get out, but little else. I could probably make bail. Also, I work a salaried job with sick/vacation/personal days available. So unless I’m accused of a homicidal rampage, I’m likely to be able to salvage my job post-arrest. Not so with many of the working poor, who may or may not be able to come up with enough for a bond or bondsman, and regardless, may be hourly employees whose unexcused appearance for any length time threatens their continued employment.2) Fines post-conviction. Currently, the system assesses fines using a what is the offense worth calculus. Again, while I would hate to give a chunk of my disposable income to the Court and DPS after a DWI conviction, I would not have to choose between my surcharge and my electricity bill. Some people do, hence the endless suspension-surcharge cycle. (Some European countries are actually assessing traffic fines, for example, based on the income level of the person committing the offense.)Is it fair that the non-indigent accused (including the entirely innocent) have to cover their defense costs? Perhaps not, but a) the Belief in a Just World is so strong among Americans you’d never see popular support for public funding of defense for everybody, b) it’s just one of many ieiquitnes that exist in the system, and c) I’d prefer to select my own counsel, thanks. Given a choice between a system where everybody gets free counsel from the wheel or whatever method their county uses, and choosing and paying out of your own pocket if you can, I think many people would choose to pay. People tend to think they get what they pay for, so paid counsel is better, and I’d want a defense attorney I’ve judged to be competent on my own standards, not the Senate Bill 7 standards of my local judiciary.

  3. Thanks for your ideas. One thing we’ve noticed is that often banks in addition to financial institutions know the dimensions and spending habits of consumers and also understand that the majority of people max away their own credit cards around the holiday seasons. They prudently take advantage of this particular fact and then start flooding your inbox and also snail-mail box together with hundreds of Zero APR credit card offers shortly after the holiday season ends. Knowing that in case you are like 98% of all American open public, you’ll jump at the possible opportunity to consolidate credit card debt and switch balances for 0 annual percentage rates credit cards.

  4. Thanks for your write-up. One other thing is individual American states have their very own laws that will affect homeowners, which makes it quite difficult for the our lawmakers to come up with a different set of recommendations concerning foreclosures on people. The problem is that a state possesses own laws which may have impact in an adverse manner in terms of foreclosure guidelines.

  5. On the subject of astmyemry- why deny the government the joy of asset forfeiture? If you use your car to assist in the violation of our state’s inane drug laws you can lose said vehicle. But when an officer pulls you over without RS/PC, that violates our constitution and should be met with the same reward. Think how the system would change if citizen’s could forfeit government assets, the contraband from crimes against our Constitution. This would make LEO/DAs instant experts in the 4th Amendment as ignorance of the law is no excuse . Forget to read Gant? Tough cookies, you’re losing that shiny new cop car. Really, is there any downside to this idea? We could use these assets to help fund the universal defense fund.

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