Sunday, April 6, 2014

Chief Justice O’Connor slams door on debtors’ prisons

Matthew T. Mangino
The Vindicator
April 6, 2014

Roughly a year ago, I wrote about a number of Ohio counties that were locking away indigent defendants who were too poor to pay off their fines and costs. The action continued in spite of state and federal laws to the contrary.
Recently, the Ohio Supreme Court addressed the issue. The Supreme Court’s action is in direct response to a report released last year by the ACLU, “The Outskirts of Hope.” The report suggested the inability to pay a fine in Ohio is “the beginning of a protracted process that may involve contempt charges, mounting fees, arrest warrants and even jail time.”
In the wake of the report, Ohio Supreme Court Chief Justice Maureen O’Connor held a meeting with the ACLU and created a plan to draft and distribute new instructions to courts across Ohio. The Supreme Court issued new “bench cards” to all the state’s judges with different alternatives to jail for offenders unable to pay fines and court costs.
“Debtors’ prisons are not only unconstitutional, they are a cruel albatross that traps low-income people in a never-ending cycle of poverty, debt, and incarceration,” said ACLU of Ohio spokesman Mike Brickner. “We expect our courts to protect the vulnerable and seek justice. It is our hope that the Supreme Court of Ohio’s actions … have moved our courts closer to fulfilling that vision.”
Nearly 30 years ago, the U.S. Supreme Court ruled that courts cannot properly revoke a defendant’s probation for failure to pay a fine and make restitution, absent evidence that the defendant was willfully refusing to pay.
If a court initially determined a fine was the appropriate penalty for a crime, the court could not later imprison a person solely because he lacked the resources to pay the fine.

What were some Ohio judges doing?
A number of Ohio counties were jailing offenders because they were too poor to pay fines. That type of court action, besides being illegal, was also perpetuating an antiquated and draconian process — debtors’ prison.
Jail is not an option in Ohio for failure to pay court costs and restitution. The Ohio Supreme Court had ruled that fines are criminal sanctions, and costs and restitution are civil. Yet, according to the ACLU’s report, some Ohio counties regularly incarcerated people who failed to pay court costs.
Case law
The Ohio Constitution explicitly prohibits debtors’ prison, and the concept is further prohibited by statute and case law. The procedure is clearly defined in Ohio. Before jailing an individual for failure to pay fines, a judge must conduct a hearing where the individual is represented by counsel and has the opportunity to present evidence regarding her ability to pay the fine.
Despite those clear directives, Ohioans were regularly jailed for their inability to pay, and the Supreme Court had to intervene.
The new two-page bench card will change the way judges do business in Ohio. The law is clear; only a willful refusal to pay a fine that an offender has the ability to pay can result in jail time in Ohio.
Anything short of a willful refusal will be handled in accordance with the directives of the bench card. Methods authorized to collect a fine include payment plans, community service and attachment of personal funds among other options. Methods explicitly prohibited include contempt of court, forfeiture of confiscated money, and the extension of probation.
With regard to court costs, jail time is never an option but payment plans and community service, as with fines, are also available.
The Ohio Supreme Court’s fast action is an important step in shedding the state’s dubious distinction of imprisoning debtors.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” is due out this summer. You can reach him at and follow him on Twitter @MatthewTMangino
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