Can’t Pay? Go Directly to Jail.

Friday, June 25, 2010

You might have thought that “debtors' prisons” were extinct. But people are still being jailed in Washington all too often simply because they can’t pay their court-ordered financial obligations in a criminal case.

The Washington Supreme Court recently agreed with ACLU-WA that it is not fair to “automatically” send a person to jail for failure to pay these financial obligations, without a hearing to determine if the person has the ability to pay.

The case (State v. Nason) involved a Spokane man who was convicted of burglary in 1999 when he was 18 and was sentenced to serve 30 days in jail and to pay about $700 in court fines and fees. The amount he owed quickly doubled due to accruing interest. The interest rate on legal financial obligations in criminal cases is 12%, far higher than the rate for things like savings accounts.

Little did Mr. Nason know that he would end up spending nearly 10 times his original sentence behind bars - not for committing new crimes but for missing payments. Under the “automatic jail” policy adopted by the court in Spokane County, he was required to agree that he would serve 30 or 60 days or more each time he missed a monthly payment. He was sent to jail without a hearing to consider whether he had the ability to pay.

In fact, Mr. Nason could not pay – he had no income, was homeless, and was living out of his car with his brother. He had been walking up and down a main street in Spokane looking for employment at different places. His only money was the $152 that he received in food stamps.

The Washington Supreme Court said that the “automatic jail” policy was a violation of the due process clause of the constitution. But questions about the fairness of Washington’s system for collecting legal financial obligations (LFOs) remain. A recent study showed some counties impose far more LFOs than others, and a larger debt burden is placed on Latino defendants than on others. As the Spokane Spokesman-Review noted, counties may spend more to put people in jail for non-payment than they take in.

Fortunately, this issue is increasingly attracting the attention of legal scholars and activists. A Seattle University Law School graduate was recently awarded a fellowship dealing solely with LFO issues in Washington. A legal seminar on June 25 at the University of Washington School of Law will discuss the problem, and groups such as the ACLU and the Washington Defender Association continue to seek to reform Washington’s tangled LFO procedures. These groups are also filing a friend of the court brief this week in another case involving the fairness of procedures for LFO enforcement.