Late in the last legislative session, the General Assembly moved to make it almost impossible for judges to waive an array of costs and fees imposed in criminal cases that poor defendants typically cannot pay. Such waivers are frequently constitutionally mandated. But our legislators detest them. So now courts are prevented from excusing fees without providing a 15-day notice to a long list of state agencies, giving them opportunity to object. Judges say the new rule is “designed to make the process so cumbersome” no one will issue waivers. If fees aren’t excused, and payment isn’t forthcoming, an array of additional sanctions, including incarceration, can be triggered. Shades of the debtors’ prison.
The no-waiver procedure might be written off as but another step, in the new North Carolina, to abuse and demean poor people. And that it is. But it is also a doubling down on an immensely troubling trend, potently employed over the last two decades in the Tar Heel State, that eviscerates equal protection of the law and taints the effective operation of the judiciary – the financing of the criminal justice system by a cascade of purported “user fees.”
As former judge, now legislator, Marcia Morey, puts it: “Every day, people all over North Carolina face a judge for a minor offense or a traffic infraction and they are ordered to pay hundreds of dollars they simply cannot afford.” Too often, non-payment isn’t willful, Morey says; rather, the defendant is unemployed or disabled or suffers from addiction or mental illness. They’re held “not because they are a danger to the community but because they are poor.”
Our list of fees is now among the nation’s most daunting. It can include a “general court of justice fee” (about $150-205), a court facilities fee, a $600 prosecution lab test and equipment fee, a bail fee, pre-trial release fee, home arrest monitoring fee, failure to appear fee, installment fee, community service fee, probation fee, jail fee, law enforcement retirement fee, sheriff’s supplemental fee, and, of course, a fee non-payment fee. Astonishingly, defendants who have been deemed indigent have to pay a fee to get a lawyer. It’s not uncommon in North Carolina for a criminal defendant to receive a suspended sentence for a minor offense and yet be assessed $1,000 or more in court-ordered financial obligations.
It is hard to encapsulate all that is wrong with this. We outlawed debtor’s prisons in the 19th century. The North Carolina constitution says: “there shall be no imprisonment for debt.” The due process and equal protection clauses of the 14th Amendment prohibit states from “punishing a person for his poverty.” Most states bar courts from using fees to raise revenue for government more broadly – converting them, impermissibly, into tax collectors. Our court fees go, largely, to the state’s general fund and the judges collect millions more than they expend.
The Supreme Court has repeatedly held that no person can be jailed because of his inability to pay a fine or fee. State courts, therefore, must inquire, through hearing, into a person’s ability to pay before inflicting incarceration. To understate, this does not occur uniformly in North Carolina. The legislature also demands the publication of an annual shaming report listing by judge and district the frequency of granted fee waivers. As one judge told me, “It’s part of the larger effort to intimidate judges.”
It is also Kafkaesque. We take relatively minor criminal infractions, minor enough that they typically don’t implicate jail time, then we charge the defendants fees we know they can’t pay. We penalize them for not paying and impose further charges and harsher sanctions for noncompliance. A defiance of logic at every turn. Knowing miscalculation, on stilts.
The oddness arises, in major part, from the decision to try to fund the judicial system by user fees from the most unlikely group of donors – criminal defendants who are largely indigent. As one public defender explained: “Clients enter the criminal justice circle of hell, every day somebody I deal with gets harsher treatment because he doesn’t have any money. It puts the poor in a tough place and keeps them there.”
All citizens have potent interest in a strong, fair, functioning justice system. Citizens ought to pay for it, like we do police, or the fire department, or, for that matter, the legislature. But, as Justice Black wrote 75 years ago: “There can be no equal justice where the kind of trial a person gets depends on the amount of money he has.”
Gene Nichol is Boyd Tinsley distinguished professor of law at the University of North Carolina.