“My primary focus in life is my daughter,” Khaleef told the judge. On May 2, 2016 Khaleef’s love for his daughter presented him with an impossible dilemma. Earlier that evening he received a text message from his friend warning him that his six-month old daughter Nadeera was lying on the floor, neglected. Nadeera was unattended while the child’s biological mother was under the influence of drugs and alcohol outside in the backyard. “I knew I wasn’t supposed to be around Nadeera’s mother but you can’t leave a helpless child like that.”
Khaleef’s concern for his daughter was enough to sway even the hardened DA who did not ask for an active prison sentence. After a stern lecture about following court orders, and being a role model for his daughter, Khaleef was put on probation. The court also taxed Khaleef with “all court costs and fees.” At the time, Khaleef was relieved to be going home to be with his daughter. He would soon find out how financially devastating being taxed “all court costs and fees” can be for an indigent defendant.
Nearly 200 years ago, the U.S. Supreme Court’s ruling in McCulloch v. Maryland prevented a state from taxing a bank out of existence. The Chief Justice importantly noted that the government’s ability to tax is also the ability to destroy. The three-part series “The Rise of Criminal Court User Fees in North Carolina” revealed how the court system imposes fines on impoverished North Carolinians that they struggle to pay back later. Inspired by that series, we chose to highlight one man’s experience with overwhelming fees and their capacity to destroy lives.
It’s important to understand up front, however, that criminal court costs burden the lives of thousands of indigent individuals like Khaleef daily. Though courts appoint attorneys to individuals who cannot afford one, defendants must pay court fees and even a fee for the appointed attorney. These fees, while mostly manageable for the middle class, can wreak havoc on the lives of impoverished individuals.
Without waiving fees, indigent defendants are automatically charged $240 in district court fees. Of the criminal court costs Khaleef continues to pay, some are non-waivable. In North Carolina, judges can waive certain court fees depending on the circumstances. Other fees are non-waivable and must be paid, regardless of the defendant’s ability to pay. Of these fees, the court charges a non-waivable $60 fee for requesting a public defender and a $55 per hour fee for every hour the public defender works on the case. In other words, people are charged at least $60 for being too poor to afford an attorney. Making matters worse, if the defendant cannot pay the public defender fee upfront, they are fined for an extra $20. Finally, if those costs were not burdensome enough, the State can charge an 8% interest rate on debt for criminal court costs. After interest, Khaleef’s total cost for his decision to rescue Nadeera from her drunken mother without permission added up to roughly $1,000.
Khaleef, who had already been determined indigent by the court, fell in to extreme debt from his criminal court costs. As interest on his court costs continued to accumulate, Khaleef found himself in dire financial straits; a situation that remains over a year later. The money he owes includes fees for law enforcement officer training/retirement and for the general fund, which the North Carolina legislature uses for any state operation (not just the court system). Khaleef worries not just for his daughter’s safety, but also that he will not be able to provide for her needs like food and clothes.
Some judges may believe this taxation is excessive for working class North Carolinians, but the North Carolina legislature pressures them not to waive fees. A provision added to the 2014 state budget bill (see Section 18B.2) requires that every time a judge waives a fee, the fee waiver and the judge’s name is recorded in a report sent to the legislature. Not only is reporting every fee waiver cumbersome and inefficient, the process also shames judges and threatens their reelection chances by making them appear soft on crime. The legislature further aims to make waiving fees nearly impossible through a provision in the new state budget bill passed in June 2017 that requires judges give 15 days’ notice via first class mail to all parties potentially affected by court fees prior to waiving a fee. Knowing whether a defendant will ask for a fee waiver and then notifying all interested parties 15 days in advance is nearly impossible. Some fees like a crime lab fee can cost up to $600, putting tremendous pressure on judges to navigate increasingly difficult obstacles to waive fees for indigent North Carolinians.
The court fees imposed not only cost Khaleef financially; it cost him his job as well. Before Khaleef attended court, he had worked for UPS, receiving a steady paycheck of $800 per month that he used to provide for himself and his daughter. His monthly expenses, including his rent, utility bill, and phone bill, totaled $700 leaving him with $100 a month for all of his other needs. That $100 went towards medical bills and child care like diapers and clothing, leaving him with very little to pay his court costs even when he had a job. Because of his repeated court dates and the inflexibility of the trial system, Khaleef was fired for missing work. With no assets and no current job, Khaleef has no ability to pay expenses, fees, or even child care. “I got all of these court bills to pay,” Khaleef told us, “before I can even start going back to providing for my daughter!”
The statutorily mandated court costs shackle indigent people like Khaleef with debt that is impossible for them to pay back. Without the policy suggestions outlined in part three of the series “The Rise of Court User Fees in North Carolina,” poor people who go through the court system are left destitute by fees and taxes. Eliminating non-waivable fees for requesting a public defender, instituting a standardized measure of ability to pay, and offering community service as an alternative restitution are just a few of the methods North Carolina can reduce the burden of criminal court costs on indigent North Carolinians like Khaleef. Under the current system, court fees too often constitute a form of government interference that holds the American dream of upward mobility further out of reach for working class people and the families they support.
Khaleef may ache from his court fees, but he is not the truest victim of these excessive fees ; it’s his daughter. Years of debt not only hurts hard-working people like Khaleef but also, and unconscionably, their children. Nadeera will suffer from her father’s debt. She loses financial support in childhood because of an event out of her control. Every child in North Carolina deserves support in childhood. Are clean clothes , a good meal, or diapers too much to ask? Chief Justice John Marshall wrote in McCulloch v. Maryland, “An unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation.” North Carolina’s power to levy endless debt on indigent defendants is destroying them — and their children. Courts should not punish children for the years-old mistakes of their parents.
Parents provide the foundation for their children’s future. With an excessive percentage of their income going towards court debt, how can indigent people provide for their families and pave the way for their children’s future? It is wrong to darken the future prospects of indigent children simply because their parents are encumbered by excessive court debt. Khaleef repeatedly told everyone he spoke to about his case that his primary focus in life is his daughter. If North Carolina is “first in freedom” like the state motto claims, it would allow people like Khaleef to provide for their daughters and sons without the chains of undue court debt.
Aerin Hickey is a student at the University of Georgia and Connor Aberle is a student at Wesleyan University. Both are summer 2017 interns in the Guilford County Public Defender’s Office.