Some of us have begun calling it the Chasm — it’s the chasm between the legal system and the poor. When the cops yell “stop”, young men do not make subtle legal distinctions between the civil and criminal justice systems. If they fear a warrant — and what might happen to them if they are arrested, and are given a “rough ride” Baltimore style, they do not ask if it is a criminal or civil system warrant.
In the past, our critique of the court system, from within and without, has been that it fails to provide access to a system that should and could provide access. What we are now starting to have to think about is how much the court system keeps people in poverty, or even drives them into it — and does so including through cases that are denominated “civil.”
Look at this reminder from a document prepared by an Michigan court Ability to Pay Workgroup.
In the three decades since the United States Supreme Court issued its decision in Bearden v Georgia, 461 US 660 (1983), judges have been required to address the issue of ability to pay before incarcerating a person for failure to pay court-ordered financial obligations.
Contrast it, please, with everything we are hearing from all over the country about the systems of fines, fine escalation, driving license loss, incarceration, failure to reduce child support obligation, etc, (Brennan Report), NYT article. DOJ Report. We should be ashamed that we are part of the problem not just because we are not part of the solution, but because we are actually making it much worse, with terrible implications for individuals and, as we now know, communities.
Here are some starting points:
The Michigan Workgroup document includes a variety of best practices, including when ability to pay should be assessed, how it should be assessed, possible rules and statutory changes, and payment plan calculators. Here is the list of appendices:
- Ability to Pay Checklists
- Statutory Requirements
- Court Rule Requirements
- Case Law Summary
- Ability to Pay Language
- Payment Plan Calculators
- Federal Poverty Guidelines Charts
- Means Test
- Payment Alternatives
- Incentives/Waivers
- Model Debt Inactivation Policy
- Possible Statutory Amendments
- Possible Court Rule Amendments
It is a wonderful document with which a state can start to develop their own policies — although I should emphasize that I am not specifically endorsing any specific content, only the thoroughness of the general approach, and the philosophy described in the quote above and below, which is the conclusion of the document.
The “ability to pay” must be determined and applied on an individual basis. Each judge, for each obligor brought before the court for failure to pay a court-ordered financial obligation, must review the required facts and circumstances and make an individual determination of the obligor’s ability and resources to pay the ordered monetary assessments and whether the obligor has made a good-faith effort to pay. Judges may have differing philosophies regarding ability to pay and may weigh facts in a given case differently. A judge’s discretion is tempered by the confines of the law and should be exercised with fairness and restraint. Ultimately, each decision is up to the individual judge.
While I suspect that the final sentence was added by way of compromise — and while I would add that for a judge to refuse to exercise discretion is an abuse of discretion — the fact is that final sentence does end up emphasizing that the judge will be held responsible for that decision, both legally and morally.
The Brennan Center has developed a Toolkit for one subset of this problem, the criminalization of debt. It includes five core recommendations for reform;
- conduct impact Analysis of Proposed and Existing fees
Such studies can show lawmakers that the imposition and enforcement of fees and fines has both financial and social costs, and that these laws fail to generate revenue.
- create and Enforce Exemptions for indigence
The most effective way to break the cycle of debt and poverty that criminal justice debt perpetuates is to create exemptions for indigent people and effectively enforce them.
- Eliminate Unnecessary interest, late fees, and collateral consequences
Where exemptions are not possible, other policies can reduce the onerous burden of debt. Eliminating interest and late fees makes debt more manageable. Collateral punishments, such as suspending driver’s licenses, only make it more difficult for people to obtain the employment necessary to make payments.
- End incarceration and Supervision for non-Willful failure to Pay
Criminal justice debt ensures that people who are no threat to public safety remain enmeshed in the system. Often people facing the possibility of re-incarceration or further supervision have no right to counsel. Such practices raise constitutional questions, are costly to states, and decrease public safety as court and criminal justice resources are diverted.
- focus on rehabilitation through Meaningful Workforce Development
Offering optional community service as a means for paying criminal justice debt has the potential to improve the long-term job prospects for those who enroll, improving rentry prospects and providing states with an alternative means to collect debt.
In a separate post, I will soon be discussing steps that state leaders can take to start this process, particularly using the access to justice commissions, or equivalent, and what resources can be created at the national level to make this happen.
Richard Zorza's Access to Justice Blog 
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