It’s time to padlock Ohio debtor prison

Some Ohio counties, in defiance of state and federal law, are locking away indigent defendants who are too poor to pay off their fines and costs.

Some states apply “poverty penalties,” such as late fees, payment plan fees and interest, when people are unable to pay all their debts in a lump sum, reported CBS News’ “Moneywatch.” Alabama charges a 30 percent collection fee. In North Carolina people are charged for using a public defender, so indigent defendants who cannot afford an attorney are forced to face jail time without counsel. Florida allows private debt collectors to add a 40 percent surcharge to the original debt.

CASH-REGISTER JUSTICE

In 2010, the Brennan Center for Justice issued a report on Florida’s reliance on fees to fund its courts. Since 1996, Florida added more than 20 new categories of financial obligations for criminal defendants and, at the same time, eliminated most exemptions for those who cannot pay. The process of cranking up fees to pay for courts became known as “cash- register justice.”

The report concluded that the “current fee system creates a self-perpetuating cycle of debt for persons re-entering society after incarceration.” Not to mention the court-related debt that lands some people in prison for the first time.

In a number of Ohio counties, things are even worse.

According to a recent report prepared by the ACLU, “The Outskirts of Hope,” 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 some Ohio counties offenders are being jailed because they are too poor to pay fines. That is a violation of federal and state law and the perpetuation of an antiquated and draconian process known as “debtors’ prison.”

In the second half of 2012, more than 20 percent of all bookings in Ohio’s Huron County Jail were related to failure to pay fines, according to the ACLU.

During the same time period, Erie County jailed 75 people for failure to pay, and Parma Municipal Court in Cuyahoga County jailed 45 people.

Nearly 30 years ago, the United States 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.

While jail is an option for an individual willfully refusing to pay a fine, jail is never an option in Ohio for failure to pay court costs and restitution. The Ohio Supreme Court has ruled that fines are criminal sanctions, and costs and restitution are civil. Yet, according to the ACLU, some Ohio counties regularly incarcerate people for failure to pay court costs.

A CRITICAL DISTINCTION

It appears that some courts fail to make the crucial distinction between defendants who have the means to pay their debts but refuse to pay, and those who are too poor to pay. Some suggest that the failure derives from the lack of consistent legal standards for determining willful nonpayment of court imposed-fines.

That is not the case in Ohio. 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.

In spite of those clear directives, Ohioans are regularly jailed because they are simply too poor to pay.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, PA. You can read his blog at www.mattmangino.com and follow him on twitter @MatthewTMangino)