Not paying a fine should not mean jail time

Scott Forsyth, The Daily Record Newswire

Is being poor a crime? Maybe in the 1700s and early 1800s, when not paying your debts could land you in a dingy workhouse or worse. But not in the enlightened 21st century, so we believe. Then comes word via the Department of Justice that the police and the courts contributed to the racial tension in Ferguson by fining residents excessively and jailing those who could not pay.

But that is the culture of Missouri, or at least of St. Louis County, you say. I counter, look at DeKalb County in Georgia and the very recent experience of Kevin Thompson.

Thompson is a black teenager, who was ticketed for driving with a suspended license. Last October, he pled guilty to the charge in Recorders Court, a division of DeKalb County's executive branch. The judge fined him $810. When he could not pay that day, the judge put him on "pay-only probation." He had 30 days to pay the fine.

DeKalb County relies heavily on the revenue generated by the Recorders Court. In 2013, the revenue was more than $30 million, whereas the cost of operating the court was $3.7 million. Wanting to improve its profit margin, the county outsourced the supervision of those placed on probation to a corporation by the name of Judicial Correction Services.

JCS did not charge the county for its services. Instead, the county allowed it to collect from probationers a monthly fee of $30, excepting only the "indigent."

Nobody asked if Thompson was indigent. The court just tacked JCS's fee onto his fine.

Thompson met with JCS weekly. Prior to the ticket, he worked part time for an auto shop. This work ceased, because he did not have a regular license and could not obtain a restricted use license. He could not get other work. He did not have any savings. He did borrow $85 from relatives, which he turned over to JCS.

When Thompson did not pay the balance of the fine and JCS's fees within 30 days, JCS petitioned the Recorders Court to revoke his probation. JCS advised him a public defender would represent him, if he wanted counsel, at a cost of $150. Not aware the statement about cost was inaccurate and not able to pay the $150, he signed the petition, waiving his right to counsel. In December, he appeared back in court.

Thirty years ago, the Supreme Court specified a procedure to be followed when government seeks to jail a person for not paying a fine. A court must inquire into the person's ability to pay, his efforts to secure resources to pay, and the adequacy of alternatives to incarceration, such as a reduction in the amount of the fine, an extension in the time to pay, and community service.

Jail is not an option unless the court finds the probationer willfully failed to pay the fine or did not make sufficient efforts to acquire resources to pay or the alternatives are inadequate. Depriving a person of his "freedom simply because, through no fault of his own, he cannot pay the fine" is "contrary to the fundamental fairness required by the Fourteenth Amendment," Bearden v. Georgia, 461 U.S. 660 (1983).

Did the judge of the Recorders Court conduct such an inquiry of Thompson and make the necessary findings? No. In a very brief colloquy, she heard him explain why he was not working and then sentenced him to nine days in jail.

It so happens the ACLU was investigating DeKalb County. It was suspicious the county was targeting the poor for revenue and using the threat of jail to force the poor to pay.

Responses to a FOIL request revealed the county, the Recorders Court, and JCS did not have any procedures in place to inform probationers properly of their right to counsel at revocation proceedings, to identify probationers truly too poor to pay their fines, and to educate the persons seeking collection about the availability of alternatives to incarceration. What looked like a money grab was, in fact, a money grab.

In January of this year, the ACLU filed a federal lawsuit on behalf of Thompson, naming DeKalb County, the chief judge of the Recorders Court, and JCS as defendants. Last month, the parties settled, Thompson v. DeKalb County, Georgia, No. 1:15-cv-00280 (N.D. GA. 2015).

The county will adopt a "bench card" that lays out the procedures judges must follow to comply with Bearden v. Georgia. Part of the bench card will be an explanation of probationers' right to counsel, which must be communicated to them when they appear in court. The county will train all court personnel on the subject. Finally, the county will pay the ACLU $70,000.

Ironically, after the ACLU commenced the lawsuit, the Georgia legislature abolished the Recorders Court in DeKalb County, effective July 1, 2015. Thereafter, all traffic offenses will be handled by a state court. A magistrate court will handle "all other actions."

The legislature's action will put a dent in the county's budget. Since JCS contracted directly with the Recorders Court, it too will lose a source of income.

Although the Recorders Court will disappear, the need to protect the rights of poor probationers remains. The settlement should provide a model for other courts in DeKalb County and elsewhere to follow.


Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to a chapter of the ACLU. He may be contacted at (585) 262-3400 or

Published: Fri, Apr 03, 2015