Fighting the Systemic Shakedown of Poor People

This content was originally published as part of the 2015 NAPD Annual Report. Janene McCabe co-chairs NAPD's Fines & Fees Committee. The accompanying photo was provided by Katie D'Adamo, Assistant Public Defender, Maryland Office of the Public Defender.

Imagine more than a dozen people in a room with two pay phones, told that they have one hour to get someone to show up with money for the fees that they owe the court or else they are going to jail. Imagine the stress and tears as a roomful of people queue up in two lines to resort to begging from everyone they know to pay off their fees (Amarillo, Texas). Imagine a judge, at a hearing for failure to pay, asking the young man how much his Nike high-tops cost, and then seizing them as partial payment for his court fine and making him leave in bare feet (Greensboro, North Carolina). Imagine a defendant being convicted and sentenced to a combination of jail time and fees and learning that under state law the 12 percent interest on those fees begins at conviction (Spokane, Washington). Imagine being a poor person putting one essential bill into delinquency each month in order to make good on court costs, and watching the nightly news story expose that those fees pay for the supplemental health benefits of a part-time judiciary (New Orleans, Louisiana). Imagine being homeless and convicted of panhandling and offered either probation or community service, both of which have monthly fees that you have absolutely no ability to pay (Colorado Springs, Colorado). Imagine an obviously illiterate person signing a waiver of counsel form because the judge cuts to the quick and tells him that a public defender costs money in the form of a “restitution” fee (Blanding, Utah). Imagine working two jobs, making minimum wage, and making payments for three years on court costs only to find that because of interest, penalties, and surcharges, the amount owed is higher than the original sanction (Ferguson, Missouri). Imagine protesting the death of Freddie Gray and getting mass-arrested and being denied both bail and a public defender because the courts are closed (Baltimore, Maryland). 

Public defenders don’t have to imagine this. They struggle to stop this from happening to their clients every day.

Yet, public defenders can’t fight these practices when they aren’t appointed to represent the clients, and no-counsel courts are rampant throughout the United States. Public defenders have totally insufficient funds to file habeas motions, file appeals, or challenge the constitutionality for each of the hundreds of thousands of clients assessed fees they can’t pay or serving time in a debtor’s prison. Public defenders can’t advocate for fee reductions or waivers when the revenue stream for public defense depends on these funds, without repercussions. Public defenders can’t successfully argue for reasonable bail when judges’ hands have been tied by the Legislature with bail schedules. These are some of the reasons that criminal justice debt has mushroomed into an epidemic that threatens the liberty of hundreds of thousands of people throughout the country and sentences them to a virtually inescapable cycle of poverty and contact with the criminal justice system.

NAPD has risen to address this challenge, discovering public defenders across the country employing many different strategies to challenge these issues. Based on the incredible interest from members and the urgency of the issue at hard, NAPD created a Fines & Fees Committee in 2015. The committee collected research from members on “no counsel courts,” compiled hundreds of resources on MyGideon and promoted them to the NAPD community, published a “Policy Statement on the Predatory Collection of Costs, Fines and Fees in America’s Criminal Courts,“ supported media requests from external sources and responded to member requests for communications assistance, conducted four webinars, and provided information for developing state and federal law. The work is largely just beginning, but public defenders are committed to being part of the solution to this pervasive injustice.

The Fines & Fees Committee’s Policy Statement on the Predatory Collection of Costs, Fines and Fees in America’s Criminal Courts is here.

An article that NAPD contributed to for Aljazeera America is here.

NAPD’s expansive collection of videos, reports, articles, legal filings, legislation, webinars, and statutes from around the country are available for members of MyGideon at this link.  

The DOJ Statement of Interest on Unconstitutional Fixed Bail is here.

 "In North Carolina, a portion of public defense revenues and of the day-to-day operational budget of the court system comes from fees paid by indigent clients. Across the country many judicial budgets and public defender systems work like this. Several, including North Carolina’s, even threaten indigent defendants with incarceration if they are unable to pay court fines and fees. It has been inspiring to be part of a community of people from jurisdictions who operate under this conflict but are still willing to say, “ENOUGH!” Public defense should not be funded on the backs of poor people! Poor people are being shackled with astronomical fines and then threatened with arrest and incarceration simply because their poverty prevents them from paying. Public defenders have a duty to try to prevent this from happening. NAPD wants to equip public defenders with the tools to ensure that poor people aren't being assessed fees that they cannot pay. I have learned a lot about how other systems work through my participation on the Fines & Fees Committee and been gratified to train on this topic to advocates who are as concerned as I am about this issue.”  – David E. Clark, NAPD member and Senior Assistant Public Defender, Guilford County Public Defender’s Office (Greensboro, NC)

“For too long I considered my job complete once I had finished representing my client in court. Many times I considered it a win to successfully have a charge or a sentence reduced to probation or time served. I celebrated these victories and directed my client to the Clerk’s Office where he or she would get a pink slip – a long list of various fines and/or fees. Now I know that those pink slips represent another battle that public defenders absolutely must be prepared to enter into. It is not a win to avoid a jail sentence for your client when they are then forced to live under the constant threat of imprisonment for not having the money to pay off their criminal justice debt. Through our Fines & Fees Committee, we can see the many creative ways that public defenders are attacking these problems – even while the courts that review the remedies are the ones that profit financially from the policies. Public defenders everywhere – through rule changes, new laws, appeals, class-actions, and public pressure – are going to turn back these disturbing trends, affecting hundreds of thousands of people and families.” – Janene McCabe, NAPD member, Fines & Fees Committee Co-Chair, and Director of Technical Litigation, Colorado Office of the Public Defender (Boulder, CO)

“Even – maybe especially – during riots, public defenders are essential for upholding the rule of law, though police and courts are eager to break it. The aggressive over-policing in Baltimore during the uprising caused mass-arrests of hundreds of people. At Central Booking, more than 45 attorneys from the Public Defender’s Office and a number of members of the private bar assembled to address the detention of people deprived both lawyers and bail. One group of lawyers interviewed scores of incoming arrestees and filed Habeas petitions that led to the release without charges of over 100 individuals that evening. The other team of attorneys represented over 100 arrestees at bail reviews. Public defenders made all the difference– hundreds of innocent people were released without charges, and hundreds more received zealous advocacy to combat unreasonable bail!” – Natalie Finegar, NAPD member and Deputy District Public Defender, Office of the Public Defender (Baltimore, MD)