Incarceration of Minor Criminal Offenders for Nonpayment of Fines and Fees

A March 25, 2015 article by Knoxville News Sentinel reporter Jamie Satterfield pointed out the high percentage of inmates in local jails incarcerated for fines, costs, and fees; and likened it all to the “old debtors’ prison system. Titled “Old debtors prison system alive and well in modern East Tennessee,” she points out the high percentage of persons incarcerated in the Blount County jail and says our jails are “stuffed” not with dangerous felons but with many “small-time scofflaws” accused of violating probation by nonpayment of costs and fees associated with their minor criminal cases.[1] That article was not the first to point out the high percentage of jail inmates who are now behind bars for only nonpayment of fines and costs related to criminal prosecutions.[2]

As legislatures have tacked more and more costs on to the convicted, the system has often failed to separate out those who are able to pay from the indigent. This has taken place in spite of court decisions holding that it is unconstitutional to jail indigents for nonpayment unless it is willful or the defendant failed to make a bona fide effort to pay. Some have taken note and questioned the propriety of having such a high number of nonviolent minor offenders behind bars only for the nonpayment of the state-imposed financial obligations attached to the conviction especially since many truly indigent persons are inappropriately caught in the “debtor prison” net. Traditionally fines, costs, and restitution were assessed, but now added to that are the probation fee, incarceration costs and appointed lawyer cost recoupment.

Just last year, reacting to critical publicity about this problem, Colorado adopted a law requiring courts to conduct on-the-record indigency hearings before incarcerating debtors for failing to pay these criminal case related debts.[3] In February 2014 the Ohio Supreme Court, in a distributed “bench card,” reminded its trial judges that they must hold hearings in order to establish financial status and cannot jail indigent persons unable to pay fines and costs. Each trial judge in Ohio received a two-page bench card setting out a summary of the law regarding the collection of fines and costs. It reminded judges that “court costs, restitution and fees are civil, not criminal obligations and may be collected only by methods provided for the collection of civil judgments.” It also reminded judges that failure to follow constitutional standards in collecting fines “can result in disciplinary violations.”[4]

Additionally, there are presently pending federal class action lawsuits challenging the systemic incarceration of indigents for failing to pay fines and costs alleging there was no constitutionally required meaningful inquiry into the ability to pay or consideration of alternatives to incarceration.[5]

A New York Times opinion piece titled “Out of Debtors’ Prison, with Law as the Key,” appeared on March 27, 2015, with the lead: “Across the land, rich petty offenders pay fines while the poor go to jail. But that’s against the law.” A lengthy National Public Radio segment aired in 2014 under the title, “Supreme Court Ruling Not Enough to Prevent Debtors Prisons.” Both criticized the failure of the courts and court personnel for not strictly adhering to constitutional requirements when jailing indigents for failure to pay fines and fees.[6]

In the face of these critical observations this article addresses the constitutional and statutory framework that protects indigent criminal defendants from being jailed for nonpayment of costs, fines and restitution except when refusal to pay is willful or based on a lack of genuine effort.

In a series of cases between 1970 and 1983 the United States Supreme Court held that before an indigent may be incarcerated for failure to pay a fine or restitution it must be shown that the indigent has willfully refused to make such payment or has failed to make a bona fide effort to legally acquire the resources to pay. Absent willful refusal or lack of a bona fide effort the court should consider alternatives like reduction of the obligation, extension of time to pay or performance of public service work.[7]

‘In the third of the trilogy of cases, Bearden v. Georgia, the Supreme Court held, in reversing the jailing of a probated defendant for failure to pay restitution:

[I]n revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.[8]

Tennessee courts have unequivocally followed these Supreme Court cases and the legislature, in turn, modified prior statutes to insure that indigents would not be jailed, absent a finding of willfulness, for nonpayment of the imposed fines, and could not be jailed for failure to pay court costs, and other court imposed fees.

Even before Bearden the Tennessee Court of Criminal Appeals in 1972 had ruled that it was illegal to jail an indigent for nonpayment of his fines and that the trial judge was correct (the states had appealed) for allowing the defendant to make installment payments.[9]

In State v. Dye,[10] the defendant’s probation was revoked when he failed to pay the costs and restitution that had been ordered as part of his probation. The Supreme Court of Tennessee citing Bearden held that a trial court would be justified in revoking the probation of a defendant “who neglects or willfully refuses to pay when he has the means to do so.” However in Dye the proof showed the defendant’s state of health and financial condition were such that it could not be said that he “willfully refused to pay or failed to make sufficient bona fide efforts legally to require the resources to pay.”[11]

The probation revocation was reversed and the case remanded for the trial court to amend the probation order to consider other reasonable alternatives to incarceration. Bearden and Dye have further been followed by the Court of Criminal Appeals. That court in two cases recently reversed probation revocations based on failure to pay restitution because the trial judge had failed to find that the defendant had the ability to pay, and that he willfully failed to pay. In order to revoke probation there must be a finding of “willful failure to pay.” Absent a finding of willfulness, the trial court must look to other alternatives like reasonable installment payments or community service.[12]

Even prior to Bearden and Dye the federal courts in Tennessee had stepped in to forbid the jailing of indigent defendants in criminal cases for nonpayment of court costs and jail fees. Unlike a fine, the imposition of which is part of the criminal sanction, the costs are considered “civil” debts.

A Tennessee federal court had long ago ruled that jailing indigents (or anyone for that matter) for nonpayment of court costs violates the 13th amendment prohibition against “involuntary servitude.”[13] That same court had previously ruled that the jailing of indigents to “work out” jail fees was unconstitutional.[14]

In light of these rulings the legislature acted, and a statute now forbids the imprisonment for failure to pay costs and other court fees.[15] Furthermore, since these costs are “civil” obligations it would be illegal to sentence a person to supervised work projects or community service in lieu of these costs.[16]

As to the nonpayment of fines, the legislature made several changes in the law.  The statute first requires the court to consider installment payments.[17]   Then if the fines are not paid the court must make further “inquiry,” consider other alternatives, and only incarcerate after “a finding by the court that the defendant has the present ability to pay the fine and willfully refuses to pay.”[18]   These statutes essentially codify the holdings in Bearden and Dye.[19]

Probation fees present another problem. They are assessed to persons placed on probation, and the payment of these fees is the condition of probation.[20] These fees, however, are to be waived in the case of “hardship.”[21] Tenn. Code Ann. section 40-28-202 in turn defines “hardship” to include income below the federal poverty level, high medical expenses, child support, etc. It would seem that this “hardship” provision is often ignored by the probation officers and, of course, no indigent person could be jailed for nonpayment absent compliance with Bearden and Dye. Furthermore, the legislature has mandated that revocation of probation for nonpayment of these fees must be “willful” in order to support a revocation.[22] Whether these fees are “civil,” like court costs, remains an open question.

On occasion, a court may find a criminal defendant unable to hire a lawyer but able to pay part of the cost associated with the appointed lawyer. The court may then order some payment toward reimbursement by installments.[23] Those payments, if not made, are subject to execution and may also be made a condition of a discharge from probation.[24] It would appear that this is a “civil” obligation and failure to comply could not result in incarceration.

This article gives the criminal practitioner an overview of this area of law and hopefully will breathe new life into Bearden and Dye and the accompanying statutes.[25] We Tennessee lawyers have an obligation to see that our state does not join those states running debtors’ prisons. The law is there; it is on the books. It is now up to us, the bench and bar, to use that law to prevent unconstitutional incarceration on the basis of poverty.

Notes

1. “Old debtors prison system alive and well in modern East Tennessee,” by Jamie Satterfield, Knoxville News Sentinel, March 25, 2015, http://knoxblogs.com/lady-justice-unmasked/2015/03/25/old-debtors-prison-system-alive-and-well-in-modern-east-tennessee/
2. See, e.g., “Increasing number going to jail for not paying fines,” by Casey Smith and Cary Aspinwall, Tulsa World, Nov. 3, 2013, http://www.tulsaworld.com/news/local/increasing-number-going-to-jail-for-not-paying-fines/article_8b8d2229-c7ad-5e7f-aea2-baeb13390880.html.
3. Note, “Criminal Procedure–Indigency Tests–Colorado Requires On-The-Record Indigency Proceedings Prior to Incarceration for Failure to Pay Fines”, 128 Harvard Law Review 1312 (Feb. 2015)
4. “Collection of Fines and Court Costs in Adult Trial Courts,” The Supreme Court of Ohio, https://www.supremecourt.ohio.gov/Publications/JCS/finesCourtCosts.pdf.
5. See, e.g., Cleveland v. City of Montgomery, 2014 WL 6461900 (M.D. Ala. 2014); Ray v. Judicial Corrections Services, 2013 WL 5428395 (N.D. Ala. 2013); DeLuna v. Hidalgo County, 853 F. Supp. 2d 623 (S.D. Tex. 2012). See also Powers v. Hamilton County Public Defender Commission, 501 F.3d 592 (6th Cir. 2007) (a civil rights suit could go forward against Public Defender’s for failure to request indigency hearings for person incarcerated for failure to pay fines).
6. “Supreme Court Ruling Not Enough to Prevent Debtor’s Prisons,” The New York Times, March 27, 2015, http:// opinionator.blogs.nytimes.com/2015/03/27 and http://www.npr.org/2014/05/21/ 313118629/ supreme-court-ruling-not-enough-to-prevent-debtors-prisons.
7. Williams v. Illinois, 399 U.S. 235, 90 S. Ct. 2018 (1970); Tate v. Short, 401 U.S. 395, 91 S. Ct. 688 (1971); and Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064 (1983).
8. Bearden v. Georgia, 461 U.S. at 673; 103 S. Ct. at 2073.
9. State v. Walding, 477 S.W.2d 251 (Tenn. Crim. App. 1972).
10. State v. Dye, 715 S.W.2d 36 (Tenn. 1986).
11. Id. at 40­-41.
12. Other appellate decisions had previously shown faithful adherence to Bearden and Dye. Poole v. City of Chattanooga, 2000 WL 310564 *3-5 (Tenn. App. March 27, 2000) and State v. Coleman, 675 S.W.2d 206 (Tenn. Crim. App. 1984). State v. Pierce, 2014 UL 5141658 (Tenn. Crim. App. Oct. 14, 2014); State v. Bradley, 2011 WL 2682183 (Tenn. Crim. App. July 11, 2011).
13. Anderson v. Ellington, 300 F. Supp. 789 (M.D. Tenn. 1969).
14. Dillehay v. White, 264 F. Supp. 164 (M.D. Tenn. 1966).
15. Tenn. Code Ann. § 40-24-105(a).
16. Tennessee Attorney General Opinion 99-233, 1999 WL 1327582 (Tenn. A.G. 1999); State v. Lamb, 837 N.E.2d 833, 837-839 (Ohio App. 2005).
17. Tenn. Code Ann. § 40 24 101.
18. Tenn. Code Ann.. §§ 40 24 104(a) and 105(a).
19. See Tennessee Attorney General Opinion 06 135, 2006 WL 2929088 (Tenn. A.G. 2006) (no jailing for nonpayment of costs; no jailing for nonpayment of fines absent finding of willfulness).
20. Tenn. Code Ann. § 40 28 201(c).
21. Tenn. Code Ann. § 40 28 201(a)(4).
22. Tenn. Code Ann. § 40 35 303(i)(3).
23. Tenn. Code Ann. § 40 14 202(e).
24. Id.
25. This article has addressed the issue of incarceration of indigents for nonpayment of fines, costs, restitution and related fees. Beyond its scope is the nonincarceration remedy of revocation of driver’s licenses for failure to pay fines, costs, and litigation taxes. Tenn. Code Ann. § 40 24 105(b). Nor does this article address the problems that indigents face in making bond when they cannot afford an electronic monitoring system; or fees for alcohol safety school; or for the needed interlock devices. See Tenn. Code Ann. § 40 11 152(h) (GPS systems condition for bail and indigent may perform community service in lieu of paying the costs); Tenn. Code Ann. § 55 10 402(j)(1) (some provision for indigent to attend ordered alcohol treatment); Tenn. Code Ann. § 55 10 409(b)(2)(C) and Tenn. Code Ann. § 55 10 419 (some provision for indigents to procure interlock device).

WALTER KURTZ is a 1972 graduate of Vanderbilt Law School. He was prior director of Nashville Legal Aid (1973-76); Nashville Public Defender (1978-82); Davidson County Circuit judge (1982-2008); and senior judge (2008-2013).