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36 GPSolo 37 (2019)
Civil Fines and the Cycle of Poverty

handle is hein.journals/gpsolo36 and id is 39 raw text is: --,-,_,_--z.C IVI.L..L FNESZI? AN THLEEm CYCL OF . POVERTY ---- By Ariadne S. Montare In the 1980s courts began looking to fines, fees, and penalties as a source of revenue funding for the judicial system to replace funds lost by cuts to state and municipal budgets. This trend increased following the 2008 recession. Now many states are reevaluating their fees and fines structures in response to increas- ing pressure from advocates for the poor and good government groups. As a solo practicing in a rural area, I spend a lot of time in town and city courts in which I get to see firsthand the impact that civil fines have on people on the financial edge. On a typical evening, many of the defendants are there for unpaid parking tickets, violating civil or- dinances, traffic violations, or driving on a suspended license. Many of the defen- dants are appearing because they could not afford to pay the associated fine, the consequences of which may be to drive them even deeper into financial trouble. While larger cities may offer payment plans for civil fines, such arrangements are rare in small and rural localities. A look at driver's license suspensions illustrates the scope of the problem. As of 2017, 43 states and the District of Columbia had the power to suspend a driver's license for unpaid civil fines, which can create a vicious cycle: If the offenders can't drive, they can't work; if they can't work, they can't pay the fine; if they can't pay the fine, they can't drive. If they risk driving on a suspended license and get stopped, they will incur addi- tional and harsher fines, making it all but impossible for them to break the cycle. Suspended drivers who are stopped too often can find themselves incarcer- ated, essentially jailed for their inability to pay their traffic violations. Moreover, most of the states do not provide any mechanism for identifying drivers who failed to pay fines because they could not afford to. The number of Americans who have their driver's licenses suspended for un- paid court debt is staggering. In Virginia, for example, 940,000 driver's licenses have been suspended for unpaid court debt in a statewide population of 8.47 million. In Texas, the number of these suspensions is 1.4 million; in Califor- nia, it is a staggering 4 million. A study in New Jersey found that 45 percent of drivers whose licenses were suspended lost their job as a result, and 45 percent of those who lost their job were unable to find new work while their license was suspended, and of those who were able to find work, 85 percent reported a de- crease in income. While some jurisdic- tions are addressing the problem through diversionary relicensing programs, driv- ers who cannot contribute to court debt are usually ineligible. Some states in re- sponse are allowing defendants greater access to judges who have the authority to grant payment plans or are requiring judges to consider ability to pay when assessing fines, but these piecemeal approaches fail to address those defen- dants at the lowest end of the economic spectrum. The National Center for State Courts recently recommended that states look at eliminating driver's license suspen- sions for nonpayment of fines and fees and restricting suspensions to traffic safety reasons. Notably, many states allow license suspensions for non-driving violations, a practice that has been eliminated in Vermont and the State of Washington. In addition to license suspensions, defendants who cannot afford to pay civil fines face accruing interest, penal- ties, referral of the debt to collections agencies, wage garnishment, and pos- sible incarceration for nonpayment, all of which may make it impossible for the debt to ever be paid off. And debts owed to governmental units are generally not dischargeable in bankruptcy. The U.S. Department of Justice's Of- fice of Justice Programs (OJP) has noted that these accumulated obligations can result in hundreds, if not thousands, of dollars of debt. Moreover, in certain ju- risdictions, courts have routinely incar cerated individuals for nonpayment of fines they simply cannot afford, which is unconstitutional Awareness of this issue is on the rise. Initiatives noted by the OJP to address the connection between court costs and poverty include: a bench card for Ohio Su- preme Court judges instructing them on constitutional and state law requirements and alternatives to jail for those unable to pay court fines and fees; Vermont's prosecutor led driver's license restora- tion day that gives individuals whose li- censes were suspended due to failure to pay traffic fines an opportunity to pay a minimal fine to satisfy delinquent tickets; and a workgroup in Michigan that has produced a report including legal guid- ance, tools, and best practices to assist judges and court staff with determining an obligor's ability to pay, establishing payment plans, providing payment alter- natives, enforcing court-ordered financial obligations, and identifying uncollectible debts. With increasing awareness, the hope is the trend to use fines and fees for revenue generation at the expense of the poor will be reversed. U Ariadne S. Montare (ariadne@montarelaw.com) is a consumer law and bankruptcy attorney in the Hudson River Valley of New York. She helps clients facing all kinds of financial challenges, including credit card debt, medical debt, student loan debt, and judgments. Previously, she was a commercial litigator and creditors' counsel for a mix of small and large firms in New York and Texas. Her practice now focuses on helping consumers get back on their feet through education and negotiation, with bankruptcy as a last resort. She blogs on issues affecting consumers and small businesses at http://montarelaw.com/blog, GPSOLO I ambar.org/gpsolomag 3 37

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