House and Senate differ over budget provision making it harder for judges to waive fees for poor defendants

You can’t get blood from a stone — it’s one of those cliché proverbs that rings especially true when it comes to debt collection.

It’s also a concept that is currently before the North Carolina General Assembly as lawmakers crafting the state budget debate a budget provision that would make it extremely cumbersome for judges across the state to waive court fines or costs for indigent defendants.

The “fee waiver” provision first appeared in the Senate budget and was later adopted in an early version of the House budget. An amendment ultimately eliminated the provision, but lawmakers at a committee meeting yesterday speculated that there would be controversy over the measure when it comes time for the two chambers to agree on a final budget.

The provision mandates that no court may waive or remit all or part of any court fines or costs without providing 15 days’ notice and an opportunity to be heard to all government entities affected by the monetary collection.

That means that judges or clerks would have to either predict when someone is going to be convicted and sentenced or they have to set a second hearing and send out notices 15 days in advance to any government agency that gets a piece of the pie — this includes sheriff’s offices, the State Bureau of Investigations, the State Treasury, the school system and even legislators.

“I think to the judges that care about staying within the parameters of the Constitution, this will just clog up the courts; it will cost more money for them, and I think it will cost more money than money that they would actually get back from poor defendants,” said Cristina Becker, Criminal Justice Debt Fellow for the ACLU of North Carolina. “And then for the other judges who have basically just assumed the role of debt collector for the state will find this refreshing that there’s an even better reason or another reason to not waive court costs.”

Proponents of the provision claim they need to rein in judges who are waiving court costs and that too many fines and fees are being absolved.

Data released by the Administrative Office of the Courts (AOC), however, shows that only eight percent of criminal court costs, fees and fines were waived in 2016 by judges in District and Superior Courts across the state.

By comparison, in 54 percent of non-traffic criminal cases last year, the court found the defendant indigent and appointed them legal representation, according to a report from the Commission on Indigent Defense Services.

When asked about how much money was ordered by judges to be paid or waived in correlation to the AOC report, spokeswoman Sharon Gladwell said there was not any existing report with that information.

She also said there was no existing reports on how much in the way of court costs, fees and fines were outstanding or the demographics of defendants who have outstanding obligations.

Understanding fines and fees

When a crime or infraction is committed, fines are used by the court system as a punishment. The money collected from fines goes to the public schools.

Courts also impose fees and costs to cover administrative overhead, but that money does not go solely back into the court system.

District Court costs — which include traffic offenses and misdemeanors — add up to $178. That includes a $147.50 “General Court of Justice Fee,” of which the majority ($145.05) is used as a revenue stream to the state’s General Fund. The General Fund is what legislators use to pay for almost all state operations. Only $2.45 of the “General Court of Justice Fee” goes back toward helping poor defendants, or the State Bar Legal Aid Account.

That “General Court of Justice Fee” used to be $41 — at the rate it has increased through legislative changes, the fee will exceed $500 by 2024.

The rest of the court fees pay for facilities, telecommunications and law enforcement officer retirement, insurance and training.

There’s even a $10 fee for using improper equipment — for example, an individual ticketed for a brake light violation would pay $188 in fees plus the fine associated with that violation.

Superior Court costs pay for the same fees but add up to $198.

There are also “other criminal fees” which include daily jail fees, lab fees, supervision fees, expunction fees, community service fees and appointment of counsel fees for indigent defendants. These can add up to thousands of dollars and don’t include fines.

In 2011, the General Assembly applied court costs and fees to active prison sentence cases by default, where previously there had to be a judicial finding to do so.

“You’re basically paying into your own prosecution,” Becker said.

As the state has relied on revenue from the court fees over the past several years, legislators have continued to raise the fees.

“The trend nationally and statewide is that court costs have been increasing exponentially,” she said.

In 1999, the total cost for a felony could not exceed a little over $100, whereas now it can be thousands.

Becker said since the fines have been increased, over $700 million flows from the courts to the state, whereas over $400 million goes back from the state to the courts, and none of it goes to the counties the courts are housed in.

Mecklenburg County Chief District Court Judge Regan Miller described court costs and fees as they have increased as a user-pay system.

“The philosophy is that these people who have been convicted are users of the system and they should be required to pay for using the system,” he said.

Monetary waivers

When a defendant is found to be indigent, a judge may use his or her discretion to waive part or all of a court cost, fine or fee.

Miller described a typical situation in which a waiver would likely be issued:

A homeless person is arrested on a Friday evening and charged with three Class 3 misdemeanors: criminal trespass, soliciting and open container.

That person would appear before a magistrate and be issued a $500 secured bond, but serve the weekend in jail because he couldn’t pay it. When he appears before a judge on Monday, he would waive his right to an attorney and ask to plead guilty for a sentence of time served — three days in jail.

The judge, Miller said, would then question him about his situation: “Are you homeless? Yes. Do you have a job? No.”

At that point, the judge would likely sentence the defendant to 72 hours in jail, give him time served and remit the cost because the man would clearly not be able pay the money that would be owed.

“What this [provision] would do, it would require the judge to set a subsequent hearing 15 days later and give notice to seven or eight [entities],” Miller said. “It’s clear that the provision is designed to make the process so cumbersome that judges will elect to not waive costs and have, essentially, enforcement hearings to make sure he pays sometime in the future.”

Setting a second hearing not only takes time and resources on behalf of the court, but it also requires defendants to come back to court — they likely won’t show up or they will have to take time off from work to be there. If a defendant doesn’t show up, it could mean more jail time.

“It essentially makes the judges tax collectors,” Miller said. “I mean you call it cost, fees, whatever, but it’s essentially money that’s going to the government to operate the government, better known as a tax.”

Legislators in 2011 began an effort to chill judges’ use of waivers by requiring them to make a “written finding” of “just cause.” In 2012, judges were required to support that written order of just cause with “findings of fact and conclusions of law.”

In 2014, legislators passed a statute that requires the AOC to report to them how many court costs, fines and fees are waived by county and by judge. The 2017 report can be found here.

“After speaking to judges, they see the writing on the wall; they know they’re being watched and they know [legislators] are trying to tie their hands when it comes to waivers, and I think this just does it further,” Becker said of the budget provision.

She said it all boils down to state using court costs as a source of revenue.

“Not to mention, it’s fiscally irresponsible because you’re spending more money trying to get money from people who can’t pay than you would get in returns,” she added.

Nonpayment of fees can result in more fees, expunction disqualification, driver’s license suspension, a civil judgment (or a lien that collects annual interest), probation extension or revocation, among other things.

Tainting the system

Tom Maher, Executive Director of Indigent Defense Services, said the budget provision “is just not practical.”

“The court system doesn’t know ahead of time if someone is going to be convicted and sentenced that day,” he said.

The only way it could work, he said, is if a blanket notice was sent out in every case notifying agencies that a defendant could be convicted and that a fee could be imposed.

“I have no idea whether any of these government entities have the time, resources or energy to even

show up to these hearings,” Maher added.

It’s not clear what legislator is behind the budget provision, and the General Assembly fiscal analysts did not return a call seeking information about the measure.

Jeb Kelly wrote on behalf of Sen. Shirley Randleman (R-Stokes, Surry, Wilkes), who chairs the Joint Legislative Oversight Committee on Justice and Public Safety (JPS) and co-chairs the same Appropriation Committee, that she was aware of the provision.

He said the language in the provision was similar to that of Senate Bill 547, which Gov. Roy Cooper signed into law, requiring notification from the court to victim’s receiving restitution before remitting any obligations.

Kelly did not respond to follow-up questions.

Miller touched upon SB547 and said the bill was different from the budget provision because it only requires notification of two people: the district attorneys and victims of crimes.

“A private individual who is seeking to recover the damages that were caused would have a vested interest in appearing and objecting to the waiver of those fees or the reduction of them,” Miller said. He said when government entities begin showing up to court in an attempt to collect revenue from defendants, it has the potential to taint the system.

“What’s supposed to be a very impartial and fair system becomes one where there seems to be incentive for the authorities in the system to find you guilty and collect these fees and fines,” Miller said.

Maher said the budget provision would be a waste of time and resources, and that sometimes these indigent defendants have to make a choice to pay court costs or keep their lights on or feed their children, the latter usually being the case.

“Clearly it’s designed as a way to prevent judges from exercising their discretion,” Maher said.

“Judges are generally thoughtful; there’s an understanding that you can’t get blood from a stone.”

The House JPS Appropriations Committee voted to take the provision out of its budget but not without significant debate.

Opponents of the provision, which included Republicans and Democrats, said it would bring the court system to a grinding halt.

Several lawmakers agreed that they needed to find a way to rein in judges waiving court fines, costs and fees but that there was a better way than the budget provision.

The budget, sans the provision, is expected to be voted on this week, but there could be negotiations between the House and Senate that end up reinserting it into the final document.

If that happens, Miller expects it will lead to fewer waivers for indigent clients — less than the eight percent total currently waived for the 54 percent of defendants across North Carolina who are indigent.

“The intent of the bill is to reduce the waiver of these cost, fees, and it may actually have that effect,” he said. “It’s sort of the practicality of doing it that makes it seem impractical, but you know, systems adjust and we move forward.”

Becker says the budget provision may raise constitutional questions. She also contended that taxpayers should be concerned because they are paying into a system that isn’t working.

“If you want law and order; if you want a justice system that’s trustworthy, that has integrity, that you can trust to dispense justice, that’s not happening; that’s not where your money is going,” she said.