Court fees pose undue burden on poor

Reform needed for our state’s system of Legal Financial Obligations

Debtors’ prisons were abolished in 1842, yet people in Washington and around the country continue to be jailed for failing to keep up on payments for court-imposed fees. Others remain trapped for life in spiraling debt. Washington’s system of Legal Financial Obligations is destructive, advocates say, and the Legislature has an opportunity to change it.

Legal Financial Obligations (LFOs) are charged to defendants in addition to jail time to compensate victims and finance legal or administrative services. A 2014 report by the ACLU of Washington and Columbia Legal Services (CLS) found that Superior Courts in Washington can impose up to 20 different types of fees. Some LFOs—such as victim restitution and a DNA database fee—are required by state law. Others are discretionary, and include fees for requesting a jury trial, using a public defender, or even an annual $100 “collection fee.”

LFOs accrue interest at a rate of 12 percent. The high interest rates and the annual collection fees have the effect of exacting a harsher penalty on people living in poverty, who pay more over a longer period of time than people with the means to pay off their fees at once. In some cases, a person can make steady payments for life without ever paying down their debt.

The Blazina decision

State law requires judges to look at a defendant’s individual circumstances and ability to pay before imposing discretionary LFOs, but this determination has not been consistently applied. The 2014 ACLU/CLS report cited that discretionary LFOs were “routinely” imposed on poverty-stricken defendants in the four counties they investigated, including Thurston County.

The State Supreme Court brought this issue to the forefront last March when it announced its decision in State of Washington v. Blazina. The case involved two Pierce County defendants that were given LFOs far exceeding their capacity to pay. The decision called out the trial court’s responsibility to conduct an individualized assessment to verify ability to pay before imposing discretionary fees.

Efforts have been underway to inform clients and attorneys about defendants’ rights and the standard for determining ability to pay. Nick Allen, a staff attorney in the Institutions Project at Columbia Legal Services, points to a workgroup held by the Washington State Office of Public Defense and the CLE courses it has led throughout the state as signs of progress.

Judge Carol Murphy, Presiding Judge for Thurston County Superior Court, said in an email that she estimates that discretionary fees have been ordered less frequently in recent years in Thurston County as a result of “increased awareness by the parties, attorneys, and judges.”

Still, Allen notes discrepancies in the way the law is enforced throughout the state. “It’s not necessarily being followed everywhere,” he said.

Debtors’ prisons

Preventing courts from imposing LFOs on indigent defendants is only half the battle. The other challenge is ensuring people are not jailed for inability to pay.

Federal law states that a person can only be incarcerated for “willfully” refusing to pay, but there is no standard on how “willfully” is defined. Allen has seen people arrested over perceived signs of financial means that do not take into account an objective measure of a person’s economic status, citing cigarettes or a nice wristwatch as justification for incarceration. Others have been jailed for failing to contact a clerk.

Statistics on imprisonment over nonpayment vary from county to county, but nowhere in Washington locks up more indebted prisoners than Benton County, where one in five inmates is behind bars because of legal debts.

The ACLU filed suit against the county in October alleging that it “jails, threatens to jail, or forces manual labor” on people who are unable to pay. While the situation in Benton County is particularly severe, it is emblematic of a larger problem across the state.

Trapped for life

Incarceration for indebtedness is only the most visible way that LFOs imprison offenders after they’ve done their time. The more insidious damage comes from mounting debt that can follow an offender for life.

LFOs begin accruing interest at a rate of 12 percent on the date of the order, so debts can balloon substantially by the time the inmate is released from jail. Re-entry is challenging, and economic hardship can linger. The ACLU/CLS report noted that as many as three in five newly-released offenders are unable to find work one year out of prison. In this situation, even the basics can be out of reach.

“It might not sound like much to the average person out there,” Allen said. “But $25 a month, for a lot of these folks, is unpayable.”

The debt keeps growing, and the threat of incarceration for nonpayment looms.

People relying on public assistance are almost categorically indigent, but the 2014 ACLU/CLS report found that many people in Thurston County are routinely required to apply these benefits toward paying down their debt.

Offenders are not the only ones to pay the price. The report also found that in many counties, annual collection fees are often skimmed off the top rather than paid down after restitution, delaying compensation for victims.

The way out

Washington has a ready-made roadmap to end this cycle. House Bill 1390, which was introduced last year, would eliminate interest for non-discretionary LFOs, prioritize payment to victims over court and legal fees, and establish clear guidelines for what constitutes willful nonpayment and ability to pay.

This bipartisan legislation passed out of the House with a vote of 94-4, but it was amended in the Senate to weaken many of the House provisions and remove the courts’ responsibility to make an individual assessment of the defendant’s ability to pay before imposing LFOs.

The amendment, which was explicitly retroactive, would have nullified the Supreme Court’s Blazina decision. This scenario was unacceptable to advocates, who say an individualized examination of ability to pay is the underpinning of any semblance of fairness in our system of LFOs.

“The principle of the Blazina case…should be strengthened, not reversed,” Sam Merrill, former Clerk of the Friends Committee on Washington Public Policy (FCWPP), said in an email.

Merrill has been active in advocating on this issue with the Olympia-based Justice Not Jails, a group of Friends (Quakers), Unitarian-Universalists, and other concerned individuals aiming to reform our justice system. People interested in supporting this effort can work with Justice Not Jails to take part.

Like Merrill, Allen was frustrated by the changes the Senate made to the bill last year. Despite the challenges, he is optimistic about the prospects for the coming session:

“The 94-4 passage on the House side shows that this is not a partisan issue—there’s bipartisan support. We’re seeing that what the Supreme Court said in Blazina is true, and that is that we have a broken LFO system…Legislators want to fix that broken LFO system, and there’s no better time than now to do this.”

Michaela Williams is a former legislative staffer. She lives in Olympia, WA.

Editor’s note: According to the Tri-City Herald, on December 1, Benton County Commissioners voted to eliminate credit for jail or work crews to pay off debt. ACLU’s lawsuit continues though because there are people still in jail and warrants are still being written for “outstanding obligations.”