Are debtors’ prisons returning?

Consider this question. Your neighbor is dirt poor. He is on probation. As part of his sentence he must pay a fine in installments. He makes the first installment and then loses his job. He cannot pay the next installments and duly informs his probation officer. May a court sentence him to prison for not paying the fine?

Actually those were the facts of Beardon v. Georgia, 461 U.S. 660 (1983). The Supreme Court basically answered no.

A sentencing court “must inquire into the reasons for (a defendant’s) failure to pay.” If a defendant “willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay,” the court may so act. But first it “must consider alternative measures of punishment.”

Not to engage in this analysis and to deprive a defendant of his liberty “simply because, through no fault of his own, he cannot pay the fine” is “fundamentally unfair” in violation of the 14th Amendment.

Thirty-five years after Beardon we still have a problem with courts setting excessive fines, tacking fees onto unpaid fines and jailing people if they do not pay in full. As has been documented by the media and justice reform groups, these practices disproportionally impact the poor and minorities.

On March 14, 2016, the Justice Department under President Barack Obama sent a letter to the leaders of the state courts, urging them to revise practices that effectively create debtors’ prisons. The letter outlined the social costs: escalating debt, job losses, incarceration of people who are not a threat to society and erosion of faith in the judicial system.

The letter set forth seven “basic constitutional principles” “grounded in the rights to due process and equal protection” to guide local courts in the enforcement of fines. The first two principles come straight from Beardon—the need for an indigency determination and a consideration of alternatives.

Just before Christmas, Attorney General Jeff Sessions rescinded the letter. He cited it as an example of “the long-standing abuse of issuing rules by simply publishing a letter or posting a web page.”

The statement of Sessions is a head-scratcher. There are no new “rules” in the letter. To suggest otherwise reveals a lack of understanding of constitutional law. On the other hand, he and President Donald Trump are not interested in the plight of the poor and minorities, and rescinding the letter is further proof of their disinterest.

The story about states punishing the poor harder than the nonpoor for not paying fines would not be complete without a mention of driver’s licenses.

Like 38 other states, New York suspends a driver’s license if a defendant charged with a traffic infraction does not respond to the charge or if a defendant does not pay a fine following a guilty plea or a conviction. Vehicle & Traffic Law § 510(4-a).

The local court involved notifies the MVB that a defendant has not responded or has not paid. MVB then sends to the defendant a notice of intent to suspend his license. It “recommends” the defendant contact the local court seven days before the effective date of the suspension.

The statute and the notice are silent on what the defendant’s options are if a fine is at issue and he cannot afford to pay it in full. Local court websites are equally silent.

The silence and the threat of suspension may be changing. In a case of first impression, a district court ruled last month that Michigan’s suspension scheme violated the procedural due process rights of the indigent. Fowler v. Johnson, No. 17-cv-11441 (E.D. Mich., December 14, 2017).

Tracking Beardon, the district court stated a defendant facing a suspension for nonpayment of a fine is entitled to a hearing on his ability to pay. The court conducting the hearing must consider alternatives to immediate payment in full, such as a reduction in the amount of the fine and a payment plan. The notice of suspension must inform the defendant of the right to a hearing. The district court suggested the website of the local courts should also make the disclosures.

New York’s suspension scheme is a little better than Michigan’s. Unlike Michigan’s traffic tickets, most New York traffic tickets warn the defendant that the failure to respond or the failure to pay a fine will result in a license suspension. The DMV gives a defendant more time to respond to a notice of intent to suspend, about 30 days versus 14 days.

On the other hand, just like in Michigan, DMV tacks on an additional “scofflaw” fee to the original fine—making payment more difficult for the poor. Also, like Michigan, nowhere in the Motor Vehicle & Traffic Law, the notice of intent to suspend, the DMV website or local court websites is mention of a right to an indigency hearing. Whether such hearings occur in fact is anybody’s guess, but most likely not.

Unfortunately, in our courts the poor have received and continue to receive less justice than the better off. For every step to correct the imbalance, such as the decision out of Michigan, there is a step backwards, such as the rescission of the 2016 guidance on the enforcement of fines.

Scott Forsyth is a partner at Forsyth & Forsyth and serves as legal counsel to the local chapter of the NYCLU but the views expressed herein are his own. He may be contacted at (585) 262-3400 or [email protected]