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Reforming Ferguson-style “debtors’ prisons” here in Washington State

Like payday loans, court-assessed “legal financial obligations” keep people without means on a perpetual merry-go-round of debt. Credit: Sean Hobson

The most shocking news out of Ferguson, Missouri following the shooting of Michael Brown wasn’t about police violence or racism. It was the way Ferguson and neighboring cities balanced their budgets by operating what are widely called “modern-day debtors’ prisons.” Courts there routinely jailed poor people for failing to pay traffic tickets and other minor infractions, then charged them a never-ending series of court fees and jail costs, and then more fines when they failed to pay those fees and costs, and so on and on and on.

The news is only shocking, however, for anyone who’s never been poor and crossways with the law or known someone who was. And this merry-go-round doesn’t just spin in benighted Missouri. Courts in all 50 states assess “legal financial obligations,” or LFOs, for everything from arrest warrants to jailhouse room and board. Like payday loans, LFOs work to keep people without means on a perpetual merry-go-round of debt.

Washington’s counties can ding offenders and defendants for more than 20 different LFOs, including criminal filing, public defender, jury, bench warrant, deferred prosecution, pre-trial supervision, and DNA database fees, witness and incarceration costs, and victim restitution. Worst of all, these obligations accrue 12 percent interest, even when the people who own the debt are incarcerated. Twelve percent interest may have seemed reasonable in 1983, when Washington’s inflation-spooked legislature adopted it. Today, it’s usurious. But legislative attempts to lower it have always failed.

Washington’s counties vary widely in how severely they assess these fees and whether they’ll let those who can’t afford to pay arrange payment plans. According to an alarming report published last year by the ACLU of Washington and Columbia Legal Services, Benton County, in the Tri-Cities area, is especially zealous in pursuing LFO payments, regardless of defendants’ ability to pay. The practice of jailing people when they can’t pay runs contrary to the 1983 U.S. Supreme Court decision Bearden v. Georgia, which held that a court couldn’t revoke probation and jail an impoverished defendant for falling behind in his LFO payments.

Twenty percent of people jailed in Benton County were doing time for failure to pay LFOs. And Benton’s not alone.

Defenders of the LFO system argue that it makes violators take responsibility for their actions and compensates the public for the costs of law enforcement. But a growing chorus of critics contends that it’s counterproductive on both counts: LFOs tighten the bonds of poverty, pushing minor offenders into a legal and economic netherworld and driving them to commit worse offenses. If you don’t pay your traffic fines, you may lose your driver’s license. So what do you do if you need to drive to work? Do you lose your job too? Or do you drive without a license and risk bigger penalties?

Either way, you’re on a downward spiral. And Rep. Roger Goodman, D-Kirkland and chair of the House Public Safety Committee, claims the system is a loser for the counties too. The share of LFOs actually collected — 24 percent — “is less than the cost of collecting them,” says Goodman.

Maybe not. Current law lets court clerks charge each debtor a $100 annual “collection fee.” It’s deducted even before the victim restitution payment that is supposed to take precedence over other LFOs. This collection fee, plus 12 percent interest, means counties can rake in cash even from defendants who make no headway against their court debts. Small wonder that at the February hearing on the Senate version of a bill that would offer LFO relief,  the Washington State Association of County Clerks was the only party testifying against it.

That bill, HB 1390, was one of two — HB 2085 is the other — that Rep. Goodman succeeded in pushing through the House. Both seek to mitigate the effects of LFOs. Last week the Senate’s Law and Justice Committee passed an amended version of HB 2085, which is intended to keep traffic fines from becoming crushing burdens for those who can’t afford to pay them.

But the Senate committee is led by Spokane Valley Republican Mike Padden, a former collections attorney who has spoken of the need to hold offenders accountable for their LFOs. Padden declined to comment on the current legislation, but his committee weakened two key provisions.

Goodman’s 2085 bill would have directed courts to declare any defendant who qualified for a public defender to be indigent and grant him or her the option of performing community service rather than paying the fine, if community service is available. The Senate version gives courts discretion in determining which traffic violators are indigent and whether they’re offered community service.

Goodman’s other bill, HB 1390, would have a broader impact, but it’s stuck in Padden’s Senate committee. The version passed by the House would eliminate interest on LFOs: “All the stakeholders agree, let’s just get rid of it,” says Goodman. HB 1390 would also let courts punish defendants only for “willful” nonpayment of LFOs; that is, for failing to pay when they can afford to. And it would make the courts work out payment plans with those who can’t afford to square their debt. Indigent defendants would be relieved of all LFOs except for victim restitution and the $100 DNA fee.

The Washington Association of Sheriffs and Police Chiefs insisted on preserving the DNA fee, which its policy director, James McMahan, calls “the primary funding source for our crime lab.” But that fee would no longer be charged every time offenders pass through the system, only when they enter for the first time and DNA samples are actually taken.

The still-unpassed Senate version of HB 1390 would merely reduce the annual interest rate for LFOs from 12 to 6 percent. And it would still give courts discretion to decide who is indigent and whether to agree to a payment plan. “I’m encouraged that the bill is moving,” says Goodman. “But it’s in anemic form at this point. I’m concerned that it isn’t aggressive enough, and doesn’t do enough to protect victim restitution. Victims haven’t been getting restitution money because offenders abandon the system. We’ll be doing some educating about this over the summer. We’re only half-finished here.”

Meanwhile, one of Goodman’s House colleagues, Ruth Kagi of Seattle, discovered that her much-touted Youth Opportunities Act, which was supposed to give youthful offenders a second chance, had likewise left the job half-finished. That law, passed last year, seals the records of young offenders who commit nonviolent, non-sex crimes and pay their legal obligations. It was supposed to enable them to get jobs, schooling, scholarships, housing — all the things that provide people with the security they need to keep flying straight.

A year later, the opportunities that act promised have proven hollow for most young offenders.

“The Youth Opportunities Act gave opportunity to kids who are well-off and their families,” laments Kagi. “For the rest, it didn’t matter. Only youthful offenders who have the means to pay are able to get their records sealed and move on with their lives.” For the rest, the cost can present an unscaleable hurdle. “I was just talking to an African American girl who’s 16 and has $2,000 in LFOs,” says Kagi. “There’s no way she or her family is going to be able to pay.

And so Kagi, with Senator Steve O’Ban, a Pierce County Republican, set out to pass the Youth Equality and Reintegration (YEAR) Act, which would free all juveniles of all LFOs except for victim restitution. O’Ban, like Goodman, argues that waiving those other fees works to “prioritize restitution” and ensure that victims rather than government coffers get compensated.

Once again, the Washington Association of Sheriffs and Police Chiefs intervened. The chiefs and sheriffs said they hadn’t been aware of the implications for law enforcement of last year’s juvenile records bill. “We need access to those records for detectives conducting investigations and for background checks on people applying to become law enforcement officers, who by law can’t have any felonies, adult or juvenile,” says MacMahan. “And for weapons purchases, which we’ll be doing more and more of.”

The chiefs and sheriffs got that give-back, with a stipulation that they can’t release those records to anyone else. (McMahan says that was already the case.) So they didn’t oppose the YEAR Act. Last month the bill passed the Senate with just one nay vote, from Sen. Mike Padden, who declined to discuss that issue as well. The bill made it to the House Rules Committee in time to get through this session.

If it becomes law, many more kids will have a chance to reboot their lives without the stigma of felony records. For adult offenders trapped on the LFO carousel, the wait may be longer, but the tide seems to be turning. Rightly or wrongly, the outrage over “debtors’ prisons” isn’t going away any time soon.

Thank Ferguson for that.

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