Douglas Levy, The Daily Record Newswire
When a defendant claims he or she is unable pay court fines or costs, how can a judge determine whether the defendant has made a good-faith attempt to do so?
Or whether the defendant should be incarcerated, sentenced to community service or given an opportunity to complete high school?
Hon. John A. Hallacy, chief judge of the 10th District Court in Calhoun County, led a nearly yearlong initiative to study what each jurisdiction would do — and learned that each has a different method.
“Michigan’s a large state with 83 counties, so what happens in Gogebic isn’t necessarily the same thing that happens in Wayne or Calhoun,” he said. “It’s really a broad issue that people have been dealing with for a long time. What tools are best?”
Now, the Ability to Pay Work Group has released its 133-page report, in hopes of bringing cohesion to each jurisdiction when it comes to “pay or stay” situations.
The 19-member group, created by the State Court Administrative Office, is comprised of judges, court administrators, a legal services attorney and an appellate defense lawyer. The report brings together:
• Tools to assist judges and their staff, including statutory requirements, court rules referencing ability to pay, case law summaries and payment plan calculators;
• Payment alternatives, such as community service, with best practices from select state courts;
• Recommendation of continuing education of judges and their staff on how to address the issues related to ability to pay; and
• Suggested statute and court rule amendments.
Alternative programs
Hallacy said the process involved inviting different courts that had alternatives to incarceration to meet with the group.
“There was a lot of reaching out and looking at different things, and at what SCAO already had, like a payment plan calculator,” he said. “What we did with the group is we had judges as well as administrator and collections staff who actually took these things and tested them hands-on, so that’s what took a while.
“We really wanted to see within our committee, ‘All right, here’s a tool. Let’s not just write this into the report, let’s actually use it and see whether or not it’s functional and maybe what the pros and cons are of it.’”
Hallacy said that the group went through a “restorative justice kind of thought process.”
“I think people and society in general says there needs to be a consequence, but really, the discussion of this and the whole issue is, what does that mean? Is it simply a monetary assessment that has to be paid? Or is there another way to repay the debt to society for whatever extent the violation was?”
He said that the 8th and 61st district courts and the 8th Circuit Court’s Family Division offered good examples of alternatives for defendants who demonstrated due diligence in attempting to comply, and those examples — from nonprofit agency work to earning a GED — were folded into the report.
“The question is ‘How much is it going to cost the court to run these alternative programs?’ The answer can be, ‘Nothing,’ if you develop it correctly and reach out to the right community partners,” Hallacy said.
“There are alternatives and it really does give the offender a way to pay their debt; maybe they’re disabled in some way but can still give back through community service. It’s a win-win for both sides when you look at it that way.”
‘A vicious cycle’
Valerie R. Newman of the State Appellate Defender Office, who is on the work group, said the pay-or-stay problem involves more than the judges.
“It’s prosecutors who recommend incarceration for failure to pay, it’s defense attorneys who are not objecting when these sentences are being imposed and not saying, ‘Wait, there’s this U.S. Supreme Court case [Bearden v. Georgia, 461 US 660 (1983)] that says you cannot do this unless somebody has a willful failure to pay,’” she said.
She added that the work group’s strongest recommendation is the need for education.
“There are way too many judges that are imposing these sentences, some almost as a matter of course,” Newman said. “And the consensus was, it’s not that judges are willfully ignoring the law, they’re just not aware of the process that should be taking place when someone comes in and says, ‘Look, I can’t pay.’”
As an example, she recalled a case in which her client had successfully completed all aspects of his probation except for payment. He didn’t have enough money to be able to afford a place to stay, so he stayed with friends.
He was sentenced to three months in prison. When Newman took his case on appeal, she got the sentencing judge’s transcript.
“The judge had said, ‘Well, I don’t know what to do with you. I have no choice but to send you to prison because I can’t extend your probation anymore and you’re not paying. So I’m going to make this the Department of Correction’s responsibility and not mine anymore.’”
She said an ability-to-pay hearing never took place, and the client represented himself, which she added is a major constitutional issue.
“And he had just gotten a job. He had been on the job one month before going into court. … He lost his job, he came out and was on parole, so it became harder for him to find a job because there’s a big difference between being on parole and on probation. It was disastrous for him. … It’s a vicious cycle that serves no purpose.”
Statute or court rule?
Now that the report is out, Hallacy said the next step is getting feedback from the judiciary and court-related associations, in addition to making educational presentations in conjunction with the SCAO and the Michigan Judicial Institute.
“From there we’ll get more direction and input from the judges themselves as well as the staff that deal with these collections issues,” he said. “That may help us focus on what, from the report, they say is their top concern and then pursue it from there.”
As for suggested court rule amendments, John Nevin, spokesman for the Supreme Court, said that “with respect to the Ability to Pay Work Group report, if a court rule is submitted, the Supreme Court will consider it.”
Newman said that the Legislature also could consider the statutes listed, “because they’re inconsistent in their language and some of them are just completely outdated and don’t really serve any purpose anymore. We can only send out the call that somebody else might want to take a look at this.”
