In 2015, public outcry erupted on the issue of district judges jailing convicted defendants who could not pay their fines; the outcry was first manifest in Eastpointe, then throughout the district courts across the state. We emphasize that could not pay is distinct from did not pay.

38th District Judge Carl Gerds III of Eastpointe attracted headlines last summer, building a reputation for jailing folks convicted of minor offenses when they failed to pay their court-imposed fines. In doing so, he also attracted the attention of the ACLU who filed a complaint for superintending control against Gerds in the Macomb Circuit Court to put a stop to the practice.

The ACLU cited an example where a single mother who violated an ordinance by failing to obtain a dog license allegedly was warned by Judge Gerds that she would face a jail term if she did not pay the $435 fine by her sentencing hearing. The applicable court rule requires convicted misdemeanants and ordinance violators to pay the fines imposed at the time of sentencing, unless good cause is demonstrated.

In Judge Gerds' courtroom, however, a sign reads: "FINES AND COSTS ARE DUE AT SENTENCING: NO PAYMENT PLANS."  It was the "no payment plans" part of the sign that is troublesome. The law suit, assigned to Macomb Circuit Judge Maceroni, is scheduled for a review next week.

Meanwhile, the Michigan Supreme Court has proposed a rule change that would prohibit the incarceration of a person for failure to pay fines and costs unless the person, upon examination, is found to have the means to pay without manifest hardship but has not made a good-faith effort to comply with the court's order.  The proposed rule change directs a court to consider the following factors to determine a manifest hardship:

• the defendant's employment status and history; 
• the defendant's ability to be employed and to earn a wage;
• the willfulness of a defendant's failure to pay; 
• the defendant's financial resources; and
• the defendant's living expenses, including food, clothing, shelter, and child support obligations.

In addition to these factors, Hazel Park District Judge Charles Goedert has suggested that the willfulness determination take into account a defendant's prior track record of failures to appear and failures to pay fines. He also suggests the liberal judicial use of community service to defray the fines when a defendant does not have an ability to pay.

In the background of all this is the sometimes not-so-subtle pressure district judges are under to collect the imposed fines. The operating budget of the court depends on revenues generated from those fines and costs.

We have seen that in communities like Pontiac and Detroit, where a high percentage of violators never pay their fines and costs, the local district courts go broke. Vigilance from the bench relative to the collection of fines is one thing; but incarceration of a defendant that lacks any ability to pay constitutes a debtor's prison.

Incarceration for the inability to pay fines and costs was proscribed by the United States Supreme Court in the 1983 case of Bearden v Georgia. The SCOTUS analysis from that case gives us the "ability to pay" and "willful" refusal to pay concepts that are embedded in the Michigan Court Rules.

We here at the Law Blogger will monitor the plight of Judge Gerds and track the proposed change to the fines and cost court rule. After all, if you are broke, it would be good to know what your options are going into court.

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Post #516