The ACLU is intervening across the country in cases where the poor are jailed for failure to make court payments.
In October 2015, Harrison police pulled over Judith Snock and gave her a $138.50 speeding ticket.
Ms. Snock, 59, of Apollo, had recently broken her arm in a car accident and lost her job at a cement factory. She couldn’t pay the fine. Three months later, a constable arrested her and took her to a courtroom in Brackenridge.
Ms. Snock said District Judge Carolyn Bengel showed no concern for her financial circumstances. “I said, ‘I don’t have a job.’ I had a cast. She said, ‘You have one hour to pay the fine.’ ”
Ms. Snock could not come up with what she owed and spent the night in jail. She was released after her retired mother scraped together the money.
In January 2015, John J. Markus III, 38, of Plum, was caught driving without a license, registration, or a valid inspection, and fined almost $500.
Mr. Markus and his parents, with whom he lives, are all unemployed and on disability.
In February 2016, a constable arrested Mr. Markus and took him before District Judge Bengel. Like Ms. Snock, Mr. Markus said he was not offered a lawyer. He said the magistrate gave him two hours to pay.
When he couldn’t, he, too, was put in the Allegheny County Jail, where he spent five days.
Defendant gets SSI
Judge Bengel's finding of Mr. Markus's ability to pay
The court explained on a form that Mr. Markus had enough money to pay because he receives Supplemental Security Income — a program that provides funds to disabled individuals with little to no money.
“If they’re going to throw people who cannot afford to pay in jail, when they are not going to get the money anyway, with murderers, rapists, pedophiles…” said Mr. Markus. “I mean, really?”
Ms. Snock and Mr. Markus are among those swept up in what the American Civil Liberties Union describes as a troubling phenomenon: the resurgence of debtors’ prisons.
Some district judges and court officials argue that jailing people over unpaid fines is within the confines of the law, but the ACLU believes that such practices are illegal, harm those jailed and waste public dollars by arresting and imprisoning people who can’t pay.
“Nearly two centuries ago, the United States formally abolished the incarceration of people who failed to pay off debts. Yet, recent years have witnessed the rise of modern-day debtors’ prisons — the arrest and jailing of poor people for failure to pay legal debts they can never hope to afford, through criminal justice procedures that violate their most basic rights,” according to the ACLU.
Defendants convicted of crimes in Pennsylvania, even minor ones, often must pay a host of fines, costs and other fees.
When people don’t pay and fail to respond to a summons, a district judge — a member of the minor judiciary — can issue a warrant for their arrest.
U.S. Supreme Court and state court precedents forbid the government from locking up defendants too poor to pay. District judges are supposed to jail only defendants who can afford to pay but “willfully” do not.
“The Constitution is very clear, the law is very clear, you cannot be jailed for failing to pay when you can’t pay,” said David Harris, a professor at the University of Pittsburgh School of Law.
But data show that is not always what happens.
*When a case goes to Pittsburgh Municipal Court, the Allegheny County Common Pleas president judge is listed as the authority on the case even though the president judge did not preside. In the other cases, the defendant appears in a magisterial district court, and the associated district judge is cited. Source: Administrative Office of the Pennsylvania Courts; Research: Christopher Huffaker, Graphic: Ed Yozwick/Post-Gazette
People picked up on warrants for not paying court fees are brought before a district judge, who can hold an immediate payment determination hearing or postpone the proceeding.
If the hearing is delayed, the district judge can set an amount that must be paid as collateral in order to allow the defendant to go free; that is supposed to ensure that the defendant will return for the hearing. In many cases, that collateral equals the total payments owed. Defendants who do not pay can be jailed until the first business day after 72 hours have passed.
District judges must fill out a Determination of Collateral form indicating why collateral is necessary and why the defendant can afford to pay it.
She can’t pay, thus jail time.
An ability to pay determination by an Allegheny County district judge
A Pittsburgh Post-Gazette review of more than 4,500 cases covering everyone jailed in 2016 in Pennsylvania for failure to post collateral (about 2,500 individuals) shows that in fewer than one in five cases, district judges appear to meet the standard in explaining why payment can be made. They use statements such as “defendant has bank account” or “defendant has been working” or “gainfully employed.”
But in over 10 percent of cases involving more than 200 people, the district judges’ explanations for why a defendant can pay collateral seem to indicate just the opposite — that they don’t have the wherewithal. Among the rationales: “defendant has no income; “defendant is homeless unable to pay; and “defendant has been evicted.”
The data show the system for meting out jail stays over unpaid court fines is wildly inconsistent among the state’s 67 counties and varies from one district judge to another.
Facts showing ability to pay When defendants who fall behind on paying court costs are taken into custody, they are given the chance to post collateral and go free awaiting their payment determination hearing. If they can’t, a district judge can send them to jail for three days, but the jurists are required to cite on a Determination of Collateral form why they believe the defendant can pay. Only able-but-unwilling defendants can be jailed, according to the rules. In many cases, district judges appear not to address the question of ability to pay, or write facts that seem to prove the opposite. The Pittsburgh Post-Gazette sorted the facts given by the district judges into rough categories. Fact cited:
*Sometimes the meanings of the explanations given by the district judges are not clear.
The data was obtained by the ACLU of Pennsylvania through a Right-to-Know request to the Administrative Office of Pennsylvania Courts and was examined by the Post-Gazette in its raw form.
In most cases, district judges or their staff fill in only sparse information about the reason for jailing a defendant and write nothing supporting why they conclude a defendant can afford to put up collateral. Some statements that are supposed to explain ability to pay don’t seem to address the question of payment or finances at all. They might read “multiple citations” or “failure to respond.”
District Judge Bengel’s court had the most cases with jailings for “failure to post collateral” of Allegheny County’s magisterial district courts in 2016, according to the Post-Gazette’s analysis. District Judge Bengel’s office said that judicial rules prevented her from commenting.
Top counties in raw numbers Berks County is the overwhelming leader: Allegheny County is fifth.
Speaking for the Allegheny County district judges, Allegheny County Deputy Court Administrator Angharad Stock disputed the idea that jailing defendants for inability to post collateral violates the law, saying they may be held for 72 hours. She declined further comment.
District Judge Richard King, president of the Allegheny County Special Court Judges Association, said, “The question of whether they can pay at that moment is not relevant. It’s their ability to pay, not their ability to pay at the moment.” District Judge King said that if “their income situation has not changed” and “they agreed to a payment plan,” then they can be held for failure to post collateral. Only in the case of something like a lost job is jailing out of bounds, he said.
Cases resulting in jailings for payment failures Several southwestern Pennsylvania counties are among those where district judges jailed the most people in 2016 for failure to pay collateral in connection with unpaid court fines. Allegheny County is approximately in the middle of the pack, while Philadelphia has a distinct municipal court system, and thus is excluded from these data. Jailings per 100,000 population by county, 2016
Population based on 2010 U.S. Census
For determining ability to pay, District Judge King said that there are forms some judges borrow from other court procedures, including bail hearings and filing fee waivers, but there is no universal standard.
The ACLU has been taking up cases around the state where it believes the law is not being followed in regard to payment determination hearings. It also has reached out to judges and district judges in an effort to make systemic changes.
“[M]any judges on both the courts of Common Pleas and magisterial district courts fundamentally misunderstand what constitutes a defendant’s ability to pay,” Andrew Christy, an ACLU of Pennsylvania attorney wrote regarding payment determination hearings last year for a legal publication. A “lack of clear and uniform standards on what constitutes ability to pay” has been problematic and has driven the system to be unconstitutional, he wrote.
In many cases, the district judge offers rationales that the ACLU claims do not pass legal muster as to why a defendant should be able to post collateral. The explanations include that the defendant’s family can pay; that the defendant receives public benefits; or that they have spent money on other expenses, such as tattoos. “Has money for cigarettes, cell phone and to drink in bars,” read one form. “Has cell phone, smokes cigarettes and has an I pad [sic],” read another.
Repeatedly has money for alcohol.
An ability to pay determination by a Greene County district judge
“The payment of the fine money comes before cigarettes, alcohol, luxury items,” said District Judge King.
Receiving welfare should lead to a presumption of a lack of resources, not the opposite, said Mr. Christy.
And as for family resources, Wesley Oliver, director of Duquesne University School of Law’s criminal justice program said, “It seems to require your friends and family to pay, rather than looking at your ability. In a way, it’s almost like a punishment for having friends.”
Some district judges do not confine people in this way at all. Plum District Judge Linda Zucco said, “You can’t put someone in jail if they can’t pay; it’s if they won’t pay. We have to determine that at a payment determination hearing.”
“I usually say at the bench, ‘What’s your story?’” she added.
A systemic issue?
While the data examined by the Post-Gazette concerned the state’s minor judiciary system, people are also jailed over non-payment of fines and costs at the Common Pleas Court level.
One case, which the ACLU has said highlights due-process protection problems, involves a Cambria County man who spent 11 days in jail and was released following the ACLU’s intervention. Gregory Mauk fell behind on payments he owed due to pleading guilty in a 2010 theft case. He was given two payment deadlines over two months, but in that time he went to the hospital with pancreatitis and missed one of the deadlines.
By his next time before the judge, he was caught up.
But he was sent to jail anyway — along with 53 other people with outstanding fines.
Attorneys from the ACLU argued last month before the state Superior Court that the judge had violated Mr. Mauk’s constitutional rights by not affording him a hearing, an attorney or bail.
Mr. Mauk wasn’t keeping up with his monthly payments, which had been lowered by $100 to $150, argued Scott Lilly, chief deputy for the appellate division of the Cambria County District Attorney’s office.
“The record demonstrates Mr. Mauk’s experience is not unique: On the same day that Mr. Mauk was sentenced, the court ordered fifty-three other people imprisoned for failure to pay, none of whom were afforded their procedural due process rights,” Mr. Mauk’s attorneys wrote in a brief.
“This is a systemic issue,” said Sara Rose, a senior attorney with the ACLU, speaking before a three-judge panel in Downtown Pittsburgh.
In the magisterial district courts, the same lack of counsel abounds, although it’s less clear these cases face the same due-process requirements. Only a small fraction of cases have any lawyer listed on their docket.
Experts disagree on whether the law calls for an attorney’s representation in these situations.
“I don’t think [not providing an attorney] is a good idea, but under the law the only time the Constitution says you’re entitled to have an attorney paid for by the state is when you are facing criminal charges,” Mr. Harris said.
Mr. Oliver said the courts have not ruled on this specifically, but if there is a possibility of jail time and “there’s a role counsel could meaningfully play, there’s an absolute right.”
Jailed over truancy fines
In October, the ACLU intervened in a Fayette County case on behalf of a woman jailed over unpaid truancy fines.
Shana Gardner, 36, was convicted of two violations of a school attendance law because of her 15-year-old son’s truancy and owed $581.40, according to court documents.
After not being able to keep up with the payments, she went before Masontown District Judge Dan Shimshock in October 2017 to request a reduced payment plan. She was told there was a bench warrant out for her because of non-payment and that she would need to pay $540 immediately or go to jail, court documents state.
“Had the court inquired, it would have learned that Ms. Gardner is unemployed and living as a guest in her grandmother’s mobile home. Her driver’s license is suspended, and she cannot look for or obtain work without it. She subsists on food stamps…and receives Medicaid, facts that by themselves ‘invite the presumption of indigence,’ ” an ACLU attorney wrote in a court petition arguing that her jailing was unconstitutional.
In response to the ACLU’s petition, Fayette County President Judge John Wagner released Ms. Gardner from jail and agreed to allow the civil liberties group to train the county’s district judges last December. He also ordered people to be released from jail if they weren’t there for a mandatory sentence.
A July 2017 report from the state’s Interbranch Commission for Gender, Racial and Ethnic Fairness suggests the burden would be lessened on poor defendants — and the judicial system — if courts waived or reduced fees and fines for those without means to pay and allowed a community service option. The report also advocated creating an easy reference card for judges and district judges that would standardize how such cases are handled.
“Pennsylvania currently has no standardized process to help judges make that [ability to pay] determination, which in practice leads to arbitrary decisions about whether a defendant is able to pay, that are not always related to the defendant’s actual means,” the report noted.
In Butler County, Common Pleas Court judges sometimes allow people to work off court costs and fines via community service, at a rate of $10 an hour, said Ryan Helsel, an assistant public defender there.
“[Y]ou’ve got to realize, some of these people, are really, really behind the eight ball when it comes to getting a job,” Mr. Helsel said. “They’ve got no driver’s license oftentimes. They’ve got a criminal record. Some of them are on Megan’s Law, which is a total scarlet letter. It’s not easy for them just to go up to a store and say, ‘Hey can I get a job from you?’ ”
District Judge King said there are pressures on district judges to collect fines. “We get audited by the auditor general’s office, and if warrants are not issued in a timely manner to collect fines, and acted upon, that is reported in a written finding that is put out to the public.”
And the rules prevent them from assigning community service instead of fines for traffic violations, he said. “I’m passing the ball to the legislature.”
The state’s Criminal Procedural Rules Committee, an advisory arm to the Supreme Court, has proposed new rules for incarceration for failure to pay in summary cases for poor defendants and is taking public comment about the proposal until Feb. 23.
Meanwhile, the threat of jail for unpaid fines will continue to weigh on defendants across the commonwealth.
Mr. Markus said he had been recently warned by District Judge David Sosovicka in Cheswick that he was “not going to give him any more time.”
The district judge declined to comment.
Ira Trageser, 49, of Crafton, has been jailed several times over unpaid fines and costs. He works as painter. But with irregular jobs, he has struggled with old debts and lives with his parents.
Being in jail — even for a short amount of time — burdened his family and disrupted his life.
“My parents depend on me to be there to help with my mother,” Mr. Trageser said. “It just turns my whole life upside down.”