No Jail for Failure to Pay Fines and Costs

Attention District and Circuit Court Judges – whether you agree or not, you may not incarcerate a defendant for failure to pay fines and costs unless they had the ability to pay.

The practice of incarcerating defendants because they are indigent is OVER!

Judges frequently are so out of touch with “regular” people that they just don’t understand how a defendant may have the inability to pay court costs, fees, and other financial obligations at the time of sentencing. Judges order countless defendants in Michigan to either pay the costs and fees associated with their sentences or go to jail if they don’t pay. These sentences are called “pay or stay” or “fine or time.” Far too often, a defendant doesn’t have the requisite amount of necessary funds and finds him or herself in jail while a wealthier defendant goes free. These sentences are blatant, inexcusable, and vile violations of equal protection. Prosecutors supposedly have an ethical obligation to be “ministers of justice” and almost universally turn a blind eye to these injustices. The tables have turned, and the United States Supreme Court has ruled that an indigent defendant cannot be jailed for failure to pay fines and costs.

Nothing is unconstitutional about “pay or stay” sentences when the defendant has the financial ability to pay. However, the United States Supreme Court has long held that depriving a person of liberty for failure to pay a fine they cannot afford violates fundamental due process principles. Bearden v Georgia, 461 US 660, 672- 73; 103 S Ct 2064; 76 L Ed 2d 221 (1983).

A high unemployment rate and dire financial straits have resulted in many Michiganders serving jail time because of their inability to pay huge fines and costs on the day of sentencing. The result is devastating human costs and a waste of taxpayer money. Essentially, there is a two-tiered system of justice—one for the well-off who are set free and another for the less fortunate who face incarceration. In cases where a defendant violates felony probation because of failure to pay fines, costs, and fees because of their lack of financial wherewithal, that person will find themselves on a bus and headed to the Michigan Department of Corrections.

Defense Attorneys Must Fight for Their Clients!

Defense attorneys must challenge these “pay or stay” sentences when the judge does not correctly assess the defendant’s ability to pay. People v Jackson, 483 Mich 271, 287 (2009). For a sentence of incarceration based upon the failure to pay to be legal, the judge must make a good-faith determination that the defendant had the ability to pay but chose not to willfully.

Courts that engage in this type of economic discrimination directly violate the Michigan Constitution, which explicitly prohibits imprisonment for debt. Const 1963, art. 1, § 21 (“No person shall be imprisoned for debt . . .”). The Michigan Supreme Court has affirmed this mandate, finding that “a truly indigent defendant should never be required to pay “a court-ordered obligation.”

Defense Attorneys Have an Ethical Obligation to Protect Their Clients

Defense attorneys have an ethical obligation to argue that the Michigan Supreme Court has made clear that when the sentencing court is enforcing a payment obligation, a defendant is entitled to a comprehensive ability-to-pay assessment.

What is the “ability to pay assessment”? This is when a court determines whether a defendant is either indigent or can pay the fines and/or costs as imposed. For example, if a defendant owes $25,000.00 in restitution and is not indigent but cannot come up with the total balance owed, he cannot legally be incarcerated for his inability to pay even though he may be employed and technically not be indigent. The court should consider the defendant’s present employment, earning capacity, living expenses, outstanding debts and liabilities‚ public assistance, and other similar considerations. Often these elements have already been considered, and the judge has determined a defendant is indigent for appointing an attorney. It is hypocritical for the judge to decide that someone is indigent for appointed counsel and then make a contrary finding regarding the court collecting money.

Almost thirty years ago, the United States Supreme Court held that to deprive a person of his conditional freedom simply because he cannot pay a fine, through no fault of their own, is contrary to the fundamental fairness required by the Fourteenth Amendment. Bearden v Georgia, 461 US at 672-673. Today, the constitutional right against imprisonment for failure to pay a debt is well established under both the Thirteenth and Fourteenth Amendments (the Thirteenth Amendment prohibits conditions in which the victim is coerced by threat of legal sanction to work off a debt to a master. Under the Fourteenth Amendment, a State may not impose a fine as a sentence and then automatically convert it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full).

Criminal Defense Attorneys That Will Protect Your Rights!

If someone is in a situation where they have been jailed or imprisoned because of inability to pay, it is critical that a defense attorney fight to gain the client’s freedom by arguing that the “pay or stay” sentence is unconstitutional. If enough lawyers join the fight on behalf of their clients, courts will have no choice but to start doing the right thing or risk reversal by appellate courts. A defendant’s best hope of avoiding jail on a violation based on any allegation is to have an experienced, successful, and aggressive defense attorney by their side.

The attorneys with LEWIS & DICKSTEIN, P.L.L.C. are used to fighting for our clients even in the face of seemingly impossible odds. Any defendant charged in Michigan with a felony or misdemeanor deserves to be treated fairly and represented zealously.

At LEWIS & DICKSTEIN, P.L.L.C., we have passionately and zealously defended those charged with criminal offenses for decades. From cases that must go to trial to those cases where the priority is minimizing the consequences of a conviction, we will do whatever is necessary to help.

Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.