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.

www.clarkstonlegal.com
info@clarkstonlegal.com

Post #516

From its inception in 2003 until January 2009, this Blogger (Timothy Flynn) was a member of the 52/2nd District's Sobriety Court.  This post is an update on a blog our firm posted back in May 2009.

In the earlier post, The LawBlogger addressed the situation with the Oakland County Prosecutor refusing to participate in sobriety courts across the county.  Jessica Cooper has stuck to this decision and she has been receiving much (negative) attention from discrict court judges and now, the Oakland Executive, Brooks Patterson.  Click here for the full article from the Oakland Press. 

In the article, Cooper makes clear that she does not think the sobriety court program is worth the expenditure.  Her comments, however, seem more directed to the Oakland Circuit Drug Court, which was a recent victim of budget cuts.  The statistics she cites (i.e. only 10 graduates) do not apply to the hugely successful district sobriety courts; they graduated thousands of defendants, sustain sobriety throughout the community and may have saved dozens of lives.  No one was ever sitting around singing "kumbaya" as Cooper imagines.  Rather, her APAs were working day after day, session after session, keeping people sober and out of jail.  I often found myself in discussions where I would be arguing for more jail time than the APA.

Here is the original post:

Jessica Cooper has demonstrated a top-down command structure since taking over the prosecutor's office in January. One of the commands from the top is that first-time drunk drivers charged with operating while intoxicated (OWI) are no longer offered the customary plea reduction to operating while "impaired". This new policy may result in unnecessary jury trials.


Having an OWI reduced to "impaired" provides two advantages: less stringent mandatory driver's license sanctions ordered through the Secretary of State (60-90 day restricted license compared to a 6-month hard suspension), and a lower driver's responsibility fee ($500 for two consecutive years, compared to $1000 each year). Other fines, costs and attorney fees are higher in the OWI context.

Even for first-time offenders, a reduction to impaired is not always offered in cases where the blood-alcohol level (BAC) far exceeds the legal limit. With the proscutor's new policy, however, there are no apparent exceptions, even where the BAC is relatively low.

The new policy has been informally acknowledged by numerous Assistant Prosecuting Attorneys over the past several weeks. Defense attorneys are now considering jury trials, where a simple plea to impaired would have resolved the case.

For repeat offenders, alcohol abuse treatment is mandatory and other punishments are increased. Sobriety or "drug courts" have sprang-up in the past several years to address the problem.

In another important policy development from Cooper's office, the Oakland County Prosecutor will no longer participate in these sobriety courts, now spread throughout Oakland County. A sobriety court emphasizes drug and alcohol treatment and rehabilitation over incarceration. Such courts utilize a team approach to manage the intensive probation process. Obviously, the "team" includes the prosecuting attorney, along with a therapist, probation officer, defense attorney, and judge.

The statistics emerging from these courts have forged a consensus among professionals throughout Michigan, and the nation; sobriety-style courts are effective in dealing with drug and alcohol abuse crimes. The Oakland County Prosecutor's office should be participating in society's effort to address irresponsible addictions. The end-result is safer public roadways.

Post Script: The public should not be confused by Cooper's blunt commentary regarding sobriety and drug courts. In the felony context, theraputic courts are dealing with a much tougher customer; in most cases such defendants are three-time felons with serious drug addictions. In the district courts, most defendants are simply struggling with alcohol and overall, have less troubling criminal records.

To contact our firm, click below:

clarkstonlegal.com

info@clarkstonlegal.com