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No Jail if Alleged Defendant Can’t Afford to Pay Fines

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On May 18, the Michigan Supreme Court held a public hearing on the proposed amendments of ten different Michigan Court Rules. After hearing from many speakers, the Supreme Court ultimately adopted the proposed changes this week.  These changes require that an ability-to-pay hearing be conducted before a person is sentenced to incarceration for nonpayment of fines, fees and costs.

Constitution Requires Determination of Ability to Pay

This decision complies with a 1983 U.S. Supreme Court case, which established that incarcerating an individual for failure to pay a fine without first determining whether the person CAN pay is unconstitutional.

Judges have struggled with how to determine whether someone can pay, because the above Supreme Court case does not specify.  The recent amendments will place requirements for how to determine whether someone can pay right in the court rules for judges and attorneys to reference, rather than forcing judges to come up with their own criteria.

Among the speakers at the May 18 hearing were the ACLU of Michigan and staff from Street Democracy. Street Democracy is an organization that represents homeless defendants in the metro-Detroit area. One of their attorneys told Michigan Lawyers Weekly, “Most of my clients spend between six to ten years living outside of society because of fines and costs they have absolutely no ability to pay….they desperately want to make amends for their past behavior but unfortunately they cannot do so with money.”  She said it can “take hours to convince them to walk into court” because they are afraid they will be thrown in jail because they cannot pay.

Homeless Over a Parking Ticket

Street Democracy brought several former clients to testify about their experiences with these fines. One of them told the Court he suffered a “vicious downward spiral” due to his inability to pay a traffic ticket.  When he arrived in court for the ticket, he walked out because the person before him was sentenced to jail for not paying a fine. This let to an arrest warrant, and he became homeless and unable to feed his family. After Street Democracy helped him clear his warrant, he was able to get his own apartment get back into the workforce.

“Pay or Stay”

The practice of jailing defendants who cannot pay is known as “pay or stay,” “fine or time” or “days or dollars.”  Without guidelines for an “ability to pay determination,” county jails quickly fill up with people in debt over fines. This forces people who are not a danger to society (and who in fact often want to contribute to society) to overcrowd our county jails.

Judges will now have criteria in place to decide who cannot pay versus who does not want to pay, and will be allowed to come up with alternative payment options.

Allowing defendants to make amends that are within their means so that they can move forward with their live, rather than face homelessness (or worse) seems like a simple solution.  These amendments are a “no brainer,” and I commend our high court on making this decision this week.

P.S. – To my regular readers, we did settle our Trial set for next Tuesday. Have a safe and Happy Memorial Day weekend and remember why we celebrate the day