What happens when the courts criminalize poverty

North Carolina’s aggressive collection of court fees from indigent defendants traps many in a cycle of debt and incarceration.
North Carolina’s aggressive collection of court fees from indigent defendants traps many in a cycle of debt and incarceration.

Over the past two decades, North Carolina has created one of the country’s most robust and extensive schedules of “user fees” to help pay for the criminal justice system. Since almost all criminal defendants are indigent, the fees work a formidable set of hardships for most litigants. Huge numbers become trapped in a cycle of poverty. Increased debts and ancillary punishments – probation extensions, license revocations, and sometimes even incarceration – often result. Constitutional rights are routinely sacrificed. And a Kafkaesque bureaucratic scheme develops whereby the criminal courts, meant to benefit us all, are purportedly sustained through exactions from the least plausible set of economic actors — impoverished, heavily-sanctioned, often-unemployed and prospect-less defendants.

North Carolina has joined its impressive list of judicial user fees with what is likely the nation’s most aggressive enforcement scheme. Both the federal constitution and North Carolina law frequently require, or at least allow, that most fees and costs be waived in instances where their imposition would criminalize litigants for their poverty or effectively abrogate constitutionally protected liberties. Since 2011, the General Assembly has worked steadily to restrain this traditional judicial authority. Though waiver occurs in only a tiny percentage of cases – under 5 percent statewide – legislators have moved repeatedly to close the door even further. The result is a set of intrusions that marries two of our lawmakers’ favorite pastimes – bullying the courts and punishing poverty.

The push to curtail waiver was initiated by a procedural requirement – mandating that judges issue a “written finding of just cause” before granting relief. The next year, 2012, the requirement was expanded to include fully elucidated “findings of fact and conclusions of law.” Well enough, I suppose. But in 2014, legislators doubled-down, mandating an administrative report listing, for every judge and judicial district, the number of waivers granted. We’re apparently the only state demanding such a published roster. Judges call it the “shaming report.”

In 2017, the legislature piled on. It amended the court fees law to prohibit any waiver unless “notice and opportunity to be heard” were presented to all government entities potentially receiving court fee funds. The notice must proceed by first class mail, to a massive number of agencies, at least 15 days before any granted waiver. It, too, is a first-in-the-nation hurdle — eating up time, money and requiring secondary hearings. State judges believe the goal is to “make the process so burdensome (we) simply won’t bother.”

The “shaming” report and purposeless notice requirement unconstitutionally interfere with the independence and integrity of N.C. tribunals. It’s impermissible to grant courts the authority to decide waiver issues — especially ones of constitutional import — and then place a legislatively-crafted thumb on the scales of the determinations. Federal courts have held such coercive schemes to be unacceptable moves to intimidate a co-equal branch of government. Last month, the American Bar Association passed a formal resolution declaring “no law or rule should limit a judge’s ability to waive or reduce any fee when payment would cause substantial hardship.”

Our General Assembly tells judges: you have the power to issue waivers in cases of potent economic hardship, but if you use it, we’ll punish you by making you step through massive procedural hurdles and your name will be published on a blacklist. If, on the other hand, you deny a requested waiver, we’ll smile, nod our approval, and let you be. We’re holding down the scales for a reason. We don’t want judges to grant waivers. Wise up, your honor, or pay the cost.

It is bad enough to, yet again, interfere with the independence of the N.C. judiciary. It’s even worse to abuse your power to force judges to further criminalize poverty.

Gene Nichol is the Boyd Tinsley Distinguished Professor of Law at the UNC-Chapel Hill.