Willful Blindness: Challenging Inadequate Ability to Pay Hearings Through Strategic Litigation and Legislative Reforms

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Jack Furness is a member of the Columbia Law School class of 2021.

In 2008, Harriet Cleveland, a mother of three living in Montgomery, Alabama, received a ticket for driving without insurance and without a license.[1] When she was unable to pay her court-imposed fines, a judge sentenced her to two years of probation with Judicial Correction Services (JCS), a for-profit company.[2] Under the terms of her probation, Cleveland was required to pay JCS two hundred dollars each month, with forty of those dollars going toward a “supervision” fee.[3] Over the next year, Cleveland did her best to keep up with the payments, regularly reporting to the JCS office to pay whatever money she had been able to put together that month.[4] Before long, however, she fell behind.[5] Often, she was barely able to gather enough money to cover the supervision fee.[6] She had lost her full-time job, and what began as several hundreds of dollars in tickets soon skyrocketed to $4,713 in debt, of which more than one thousand dollars was for private probation fees.[7] After more than two years of struggling to pay her legal fees, Cleveland owed more than she had initially, due in part to the District Attorney nearly doubling her fines because of her failure to pay, adding a 30% collection fee, a “warrant” fee, and other charges.[8]

On a Tuesday morning, while Cleveland was at home babysitting her two-year-old grandson, a police officer arrived and placed her under arrest.[9] She was sentenced to one month in prison for violating the terms of her probation.[10] At no point during her sentencing hearing did the judge inquire into Cleveland’s ability to pay, nor did he determine whether her nonpayment had been a choice or if she was truly unable to pay her fines and fees.[11]

Harriet Cleveland’s story is not unique. In America an estimated ten million people owe court-ordered economic sanctions, known as Legal Financial Obligations (LFOs), totaling more than fifty billion.[12] Many jurisdictions utilize “poverty penalties,” piling on additional late fees, fees for payment plans, and interest for individuals who are unable to keep up with their payments.[13] As in Harriet Cleveland’s case, these surcharges are often exorbitant.[14] For example, Alabama charges a 30% collection fee.[15] By contrast, under the state’s general usury laws, interest rates on private loans are capped at 8%.[16] Similarly in Florida, private collections agencies are permitted to add up to a 40% surcharge to the amount they collect from delinquent payments,[17] while in Illinois, for delinquent payments, an additional collection fee of 30% goes to the States’ Attorney to compensate for the costs of collection.[18] For those struggling to make their baseline payments, these surcharges are crushing.

Although Congress has never formally abolished imprisonment for debt at the federal level, in 1832 the practice was outlawed in the District of Columbia and the territories.[19] Many states soon followed suit,[20] but the practice of incarcerating individuals for failure to pay their debts has persisted in one form or another to present day, and has even seen a resurgence in recent years.[21] With the landmark case of Bearden v. Georgia, the Supreme Court held that a state may only revoke probation for failure to pay a fine upon a showing that the nonpayment was “willful.”[22] This is the standard used by courts today.[23] And yet in many instances—as exemplified by the case of Harriet Cleveland—courts fail to consider ability to pay when incarcerating individuals for willful nonpayment of LFOs.[24] Thus, while the ruling handed down by the Supreme Court in Bearden v. Georgia was clear on its face, the legal standard it spawned has been poorly enforced and, in many cases, completely ignored.[25]

Contributing to this problem is the fact that there often is little oversight of the judges who make—or fail to make—these ability to pay inquiries,[26] resulting in determinations that range from crude to macabre:

[A] public defender in Illinois observed that rather than evaluating a person’s assets and obligations, one judge simply asked everyone if they smoked. If they smoked and had paid nothing since the last court date, he found willful nonpayment and put them in jail without doing any further inquiry. Similarly, in Michigan, a public defender said that while incarceration for failure to pay is not common, she has observed judges make only cursory ability to pay inquiries, such as finding a person’s failure to pay willful because he had cable television.[27]

The lack of a clear procedure for the judges who must make willfulness determinations is problematic for many reasons, not the least of which are the ways in which this standard, when improperly applied, leads to a deprivation of liberty and disparately impacts poor, and often minority individuals.[28] This Note argues that the lack of a clear definition for the term “willful,” compounded by poor oversight of failure to pay determinations, has exacerbated the problems created by crippling LFO debt, increasing rates of recidivism and leading to more and larger criminal justice debts.[29] Even when courts do engage in meaningful willfulness determinations, they consume scarce judicial resources and may discriminate against indigent individuals and Black Americans—two groups that are historically overrepresented in and disadvantaged by the criminal justice system.[30] But as shown by recent cases at both the state and federal levels,[31] there is the possibility of a challenge for litigants hoping to bring civil rights claims against trial court judges who routinely circumvent Bearden.

Part I of this Note offers a history of LFOs and the willfulness standard in the United States, examining the major case law and concluding by discussing the dramatic increase in LFOs in recent years. Part II discusses why the lack of a clear standard is problematic and why the current system is inadequate to deal with the problem created by LFO burdens. Part III discusses two recent cases that offer a way forward for litigants. Finally, this Note concludes with a discussion of evidentiary shortcomings as both a problem and a potential solution, and argues for a more coherent and unified national standard in making willfulness determinations.

  1.   Sarah Stillman, Get Out of Jail, Inc., New Yorker (June 16, 2014), https://www.newyorker.com/magazine/2014/06/23/get-out-of-jail-inc (on file with the Columbia Human Rights Law Review).

  2.   Id.

  3.   Id.

  4.   Id.

  5.   Id.

  6.   Id.

  7.   Id.

  8.   Id.

  9.   Id.

  10.  Id.; see, e.g., Hum. Rts. Watch, Profiting from Probation: America’s “Offender-Funded” Probation Industry 1 (2014) (explaining how adherence to a payment plan is a common condition of probation and how failure to make court-ordered payments means that an individual is no longer complying with the terms of their probation).

  11.   Amended Complaint, ¶¶ 6, 18, 20–24, Cleveland v. City of Montgomery, No. 2:13-cv-00732-MEF-TFM, 2014 WL 6461900 (M.D. Ala. Nov. 17, 2014). Fines are monetary punishments for an infraction, misdemeanor, or felony, whereas fees are the administrative costs associated with court-related activities, such as court costs or expenses related to incarceration. Council Econ. Advisors, Fines, Fees, and Bail: Payments in the Criminal Justice System that Disproportionately Impact the Poor 1 (2015), https://obamawhitehouse.archives.gov/sites/default/files/page/files/1215_cea_fine_fee_bail_issue_brief.pdf [https://perma.cc/ZJ4W-9BKQ].

  12.   See Douglas N. Evans, John Jay Coll. Crim. Just., The Debt Penalty; Exposing the Financial Barriers to Offender Reintegration 3–4, 7 (2014) (explaining that the term “LFO” incorporates both fines and fees).

  13.   Alicia Bannon et al., Brennan Ctr. for Just., Criminal Justice Debt: A Barrier to Reentry 1 (2010).

  14.   See, e.g., Mack Finkel, Prison Pol’y Initiative, New Data: Low Incomes–but High Fees–for People on Probation (2019), https://www.prisonpolicy.org/blog/2019/04/09/probation_income/ [https://perma.cc/
    5ZJQ-ZXA5] (describing the high costs of probation and the toll that these costs have on low-income individuals); see also Rachel L. McLean & Michael D. Thompson, Council State Gov’t Just. Ctr., Repaying Debts 7–8 (2007) (“Nationally, two-third of people detained in jails report annual incomes under $12,000 prior to arrest.”).

  15.   Ala. Code § 12-17-225.4 (1975).

  16.   Id. at § 8-8-1.

  17.   Fla. Stat. § 28.246(6) (2020).

  18.   730 Ill. Comp. Stat. 5/5-9-3(e).

  19.   H.R. Rep. No. 732, at 14 (1832). The bill instructed the courts that they would not be permitted to “issue a capias ad satisfaciendum, or any other process . . . upon any judgment at law or final decree in chancery, for payment of money . . . and upon all such contracts and causes of action after judgment, imprisonment shall be totally and absolutely abolished.” Id. (emphasis added).

  20.   Matthew J. Baker et al., Debtor’s Prison in America: An Economic Analysis, 84 J. Econ. Behavior & Org. 216, 219 (2012); see also Devon King, Comment, Toward an Institutional Challenge of Imprisonment for Legal Financial Obligation Nonpayment in Washington State, 90 Wash. L. Rev. 1349, 1356–57 (explaining that imprisonment for debt is currently prohibited by forty-one state constitutions).

  21.   See, e.g., ACLU, In for a Penny: The Rise of America’s New Debtor’s Prisons 5–8 (2010) (describing how states and counties have sought to rectify budget shortcomings through increased court-related financial penalties) [hereinafter In for a Penny]; see also Myesha Braden et al., Laws. Comm. for C.R. Under L., Too Poor to Pay: How Arkansas’ Offender-Funded Justice System Drives Poverty & Mass Incarceration (2019) (discussing Arkansas’s growing incarceration rate from 2004–2014, despite an overall drop in crime rates during the same period).

  22.   Bearden v. Georgia, 461 U.S. 660, 672–73 (1983); see also infra Section II.A (discussing the meaning of “willful” as used in Bearden v. Georgia).

  23.   See Jaclyn Kurin, Indebted to Injustice: The Meaning of “Willfulness” in a Georgia v. Bearden Ability to Pay Hearing, 27 Geo. Mason U. C. R. L.J. 265, 276–77 (2017) (discussing the legacy of Bearden v. Georgia).

  24.   Bannon et al., supra note 13, at 21.

  25.   See infra Section II.B.

  26.   See, e.g., Sharon Brett & Mitali Nagrecha, Crim. Just. Pol’y Program, Harv. L. Sch., Proportionate Financial Sanctions: Policy Prescriptions for Judicial Reform 9, 13–14 (2019), available at http://cjpp.law.harvard.edu/assets/Proportionate-Financial-Sanctions_layout_FINAL.pdf [https://perma.cc/H2M9-MCGC] (explaining how most current state laws defer to judges’ discretion in determining ability to pay); see also Theresa Zhen & Brandon Greene, E. Bay Cmty. L. Ctr., Pay or Prey: How the Alameda County Criminal Justice System Extracts Wealth from Marginalized Communities 2 (2018), available at https://ebclc.org/wp-content/uploads/2018/10/EBCLC_CrimeJustice_WP_Fnl.pdf [https://perma.cc/
    AG7Q-K3KY] (noting how, despite state law allowing for ability to pay hearings, the procedure is routinely ignored resulting in an average LFO burden of $6,000 for county probationers).

  27.   Bannon et al., supra note 13, at 21–22.

  28.   U.S. Comm’n on C. R., Targeted Fines and Fees Against Low-Income Communities of Color: Civil Rights and Constitutional Implications 19–22 (2017) (describing how the excessive collection of fines and fees can disproportionately harm communities of color); see also Tamar R. Birckhead, The New Peonage, 72 Wash. & Lee L. Rev. 1595, 1668–69 (2015) (concluding that Bearden’s willfulness standard leaves trial court judges with “unfettered discretion to determine which defendants qualify for relief and which do not.”).

  29.   See infra Section II.C (discussing the challenges inherent in making willfulness determinations).

  30.   Id.

  31.   Complaint at 6–7, Fuentes v. Benton Cnty., No. 15-2-02976-1 (Wa. Super. Ct. Oct. 7, 2015), available at https://www.aclu.org/sites/default/files/
    field_document/fuentes_v._benton_county_-_complaint.pdf [https://perma.cc/
    SW4B-HUWG] [hereinafter Fuentes Complaint]; Cain v. City of New Orleans, 281 F. Supp. 3d 624, 628 (E.D. La. 2017), aff’d sub nom. Cain v. White, 937 F.3d 446 (5th Cir. 2019); see also infra Sections III.A–B (discussing recent litigation challenging inadequate ability to pay determinations in violation of Bearden).

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