For someone whose sentence included no jail time, Rob Miles sure has spent a lot of time behind bars.
Since May, the 26-year-old Charlotte man has been jailed on three separate occasions – once for eight days – because he fell behind paying off the $1,280 in restitution and court costs a judge handed down after Miles pleaded guilty to a misdemeanor last year.
He has plenty of company.
On any given day at the Mecklenburg County Jail, more than 300 people – 18 percent of the average daily inmate population – are locked up solely because they failed or can’t afford to pay fines or other monetary penalties attached to their criminal cases, according to county figures. Many, like Miles, are jailed repeatedly at taxpayer expense for outstanding court debts on minor offenses.
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Miles’ attorney, Assistant Public Defender Seth Bullard, says he has another client who owes $125 on his $380 court debt. As a result, he recently spent 40 hours in jail.
“It just goes to show you this type of thing happens every day,” Bullard says. “It’s a huge problem.”
Now, a group of Mecklenburg judges has quietly launched an effort to end what a leading expert calls “this spiral of incarceration.”
Working with Harvard Law School’s Criminal Justice Debt Initiative and relying on existing law, the county’s 21 members of the District Court bench will soon begin holding formal hearings to determine a defendant’s economic status before levying penalties. The new process could begin as early as next week.
“There’s nothing renegade about it. It’s black-letter law,” says District Court Judge Becky Tin. “What we see far too often is a defendant who has been arrested for not paying court costs. And you’re sitting on the bench, and you see them after they’ve been in jail for seven days because they do not have the money. This should never happen. It is our intent in Mecklenburg County that this will no longer happen.”
State law gives judges wide leeway in matching court penalties with a defendant’s ability to pay. But the county’s new effort runs counter to recent steps by the state legislature that make it much harder for the courts to waive or reduce fees.
Altogether, the fines and court costs generate $700 million for the state’s general fund – much of it fueled by General Assembly decisions to increase court fees by 400 percent over the past 20 years.
To protect the money – which supports schools, police, the courts and other state agencies – lawmakers have made it far more cumbersome for judges to use their discretion to waive or reduce the penalties for indigent defendants. For judges who do it anyway, the General Assembly requires that their names be published in an annual report known by some in the Mecklenburg courthouse as the “List of Shame.”
Regardless, Mecklenburg’s district judges appear ready to reclaim their traditionally larger role in making their courtrooms more fair for defendants of fewer means.
Court-imposed bonds, for example, can keep innocent people of limited means in custody for years before they go before a jury. But the lesser penalties routinely attached to minor offenses can have a similar impact on defendants and their families, says Mitali Nagrecha, director of Harvard’s National Criminal Justice Debt Initiative. With the help of a grant from the Arnold Foundation, the group has been working with Tin and fellow Mecklenburg District Judge Elizabeth Trosch to find alternatives to jail.
Any drop in the jail population offers a significant break to county taxpayers. A 2015 nationwide study by the nonprofit Vera Institute of Justice says jails spent about $50,000 a year per inmate, or about $140 a day. And there’s the added expenses of court and police time as well as the paper shuffle tied to each case.
Now before handing down financial punishments, they’ll start weighing such factors as the defendants’ monthly income and expenses, whether they’ve been recently homeless or in a treatment program, and if they can afford their own attorneys. Supporters hope a short list of questions from judges will keep hundreds of residents free from a system that one former longtime court official compares to a debtor’s prison.
“The goal is to keep people out of jail who don’t belong there,” says Tin. “In the end, we don’t want to saddle low-income defendants with unfair monetary obligations they aren’t able to meet, and that might cause them to go back to jail and never dig themselves out.”
About 54 percent of defendants statewide in non-traffic criminal cases across North Carolina were declared indigent last year.
One of them was Miles. He was arrested in May 2016 after breaking into the maintenance shed of a Steele Creek apartment complex and taking tools for pawning.
He pleaded guilty that August and received probation. The judge waived the standard $180 in court user fees. But Miles had to pay $1,200 in restitution, $60 for his public defender, and $20 so his case could be registered with the courthouse’s fines and collections department.
Miles, who is chronically homeless, managed to pay $150 of that amount. But he repeatedly fell behind his later installments. He was jailed in May, again in August, then spent eight days behind bars in September – all for his failure to pay off his court-ordered penalties.
After getting Miles freed in September, Bullard says he persuaded a judge “to put everybody out of their misery” by converting Miles’ remaining debt to a civil lien. Now, Miles will pay compounding interest on what he owes the courts, Bullard says. But he can no longer be jailed for missing a payment.
Backers of the county’s plan hope that greater understanding of the defendants’ finances will bring the courts closer to economic fairness, with hundreds of residents avoiding jail – along with the risks incarceration poses to family, schooling and jobs.
Harvard’s Nagrecha says other counties have shown an interest in the Mecklenburg effort, and her group hopes to release a statewide version within the next six months.
“What’s difficult is there are so many paths ending in prison because people can’t afford a financial penalty,” she says. “We’re sort of unpacking what’s driving that.”
A significant part of the challenge in North Carolina is the fact that as part of a longstanding legislative effort to have the criminal-justice system pay for itself, court costs have been rising for years.
In District Court, where judges largely handle misdemeanors and traffic cases, defendants are expected to pay $178 in fees. In 1995, the total was $41. Indigent defendants can also be hit with a long list of discretionary “user fee” penalties – including a $600 prosecution lab test and equipment fee, a home-monitoring fee and law enforcement retirement fee, to name just a few – that can push the court tab for a single defendant into the thousands of dollars.
In a column Wednesday for the (Raleigh) News & Observer, UNC law professor Gene Nichol✔ called the system “Kafkaesque.”
“We take relatively minor criminal infractions ... then we charge the defendants fees we know they can’t pay,” Nichol wrote. “We penalize them for not paying and impose further chargers and harsher sanctions for noncompliance. A defiance of logic at every turn. Knowing miscalculation, on stilts.”
While judges have the power to waive some or all of the payments, they assess the full amounts with far greater frequency. Last year, according to the Administrative Office of Courts, the state’s Superior and District Court judges waived less than 8 percent of the total penalties and fees.
Legal observers say that figure can be traced directly to restrictions the Republican-led legislature has put in place to make it harder for judges to reduce or drop the fees.
In 2011, for example, lawmakers began requiring judges to issue a formal court order to justify waiving or changing court costs.
Three years ago, lawmakers mandated that the courts track each instance in which a judge altered a fee and to publish the findings – judge by judge – in an annual report.
“What purpose does it serve? To embarrass people, I guess,” says Richard Boner, a retired Mecklenburg superior court judge and registered Republican. “They can put my name on a list if they want to, but I wasn’t going to send people to jail if they were doing the best they could do, and for bad health or some other reason they couldn’t afford the payments. That’s no better than a debtor’s prison.”
In the latest legislative move, the 2017 state budget includes wording that bans judges from waiving fines or court costs without giving a 15-day mailed notice to every government agency that gets a share of the money. That mandate, which potentially could involve hundreds of Mecklenburg cases each day, goes into effect Dec. 1.
State Sen. Shirley Randleman, R-Wilkes told WRAL earlier this year that the schools and courts need the money. Asked if the measure will end waivers, Randleman said judges “need to seriously consider their actions.”
Randleman, a former clerk of court, recently told the Observer that she was unaware of Mecklenburg’s initiative to better match court costs with a defendant’s ability to pay. “However, I will definitely take a look at it,” she said in an email.
The Observer shared details of the judges’ plan with state Sen. Dan Bishop, co-chairman of the newly formed Senate Select Committee on Judicial Reform and Redistricting. The Mecklenburg Republican said he did not want to comment.
Tin says Mecklenburg’s new approach will abide by all existing legislative requirements. But it will also remind judges of their constitutional responsibilities to protect the legal rights of the poor. Asked if she expected pushback from lawmakers, Tin replied:
“If the legislature is committed to the rule of law, they will support this initiative in Mecklenburg County.”