The North Carolina General Assembly has spent the past few years making a concerted effort to impose increasing court fines and fees on poor defendants while giving judges less discretion to waive them in extenuating circumstances.
Now the ACLU of North Carolina is issuing a call for reform to the “bad and unconstitutional practices” that they say can lead to a modern-day debtor’s prison, and exacerbate the cycle of poverty.
The organization released a report this week that documents hundreds of cases of people jailed over unpaid court debt, the collateral consequences of unpaid court debt, courtroom debt collection practices and legislative action that led to the current problem.
“This is just a really oppressive practice on the poor and specifically people of color in North Carolina,” said ACLU of NC staff attorney
Cristina Becker, the report’s primary author and researcher.
Becker and others at the organization have been investigating how court fines and fees operate in North Carolina since September 2016. Specifically, they sought to understand how frequently North Carolinians are incarcerated and or trapped in poverty due to the imposition of court fines and fees, according to the report, “At All Costs: The Consequences of Rising Court Fines and Fees in North Carolina.” 
Because North Carolina court data is not online or uniformly compiled across the state, the ACLU submitted 400 public records requests to find out the number of people arrested for nonpayment of court fines and fees for a six-month period, as well as the daily cost of incarceration. The requests were sent to county managers, county finance managers, sheriff’s offices and court clerks in all of the state’s 100 counties.
Ultimately, 89 counties responded to acknowledge they received the requests; 57 counties responded with some responsive data to the particular requests made; 11 counties reported booking data for people arrested for unpaid court debt; 34 counties reported data on budget costs of the county jail; and 40 counties reported data on fines and fees revenue.
Becker said Wednesday that the impetus for the investigation was several defense attorneys, who reported how court fines and fees collection was a chronic problem their clients faced.
“As a former public defender, I was able to hone in pretty quickly on the issues,” she said.
There were difficulties right away though, she acknowledged, with the main one being a lack of public information on the topic. Some of the counties didn’t even know how to get the data the ACLU was asking for, so the responses they did receive varied widely with respect to the types of data provided.
It was frustrating to sort through, Becker said, but she and her colleagues knew they already had good data from their own courtroom observations. Becker and others at the ACLU conducted at least 100 court observations in four counties and documented the experiences of 412 North Carolinians who appeared in court as defendants.
“We set out to get data in the ways that we knew how,” Becker said of the approach. “For us, collecting our own data was crucial.”
Each courtroom observation collected 26 data points, including the person’s demographic information, the type and date of their hearing, the charges they faced, if they had legal counsel present and whether or not the court asked about their financial circumstances, according to the 50-page report. The observations were supplemented by interviews with public defenders and people personally ordered to pay high fines and fees.
The most egregious data collected from court observations appeared to be in Robeson County; the other observations were in Edgecombe, Mecklenburg and Avery.
“A staggering 32 observations [in Robeson] ended in an individual incarcerated for failure to pay fines and fees, 23 of whom did not have legal counsel,” the report states. “And at least 24 of those locked up for failure to pay were Black or Native American.”
The report tells the stories of a woman who paid $250 of her rent money to avoid going to jail over owed court fines and fees. It also recounts the story of college student, Gregory Patterson, who worked an entire summer to pay his traffic fines, and who was chided by the judge in his case when he came up short.
“Judge [Herbert] Richardson told him that he was a ‘disgrace’ to his university and not to come back to his county,” the report states. “Judge Richardson asked how much money Patterson had in his pocket. He replied he had around $200. ‘That’s not even enough to buy you a man in jail,’ the judge said. ‘And that’s where you’re going to end up. In jail. Boy, do you know what they will do to you in jail? They will have fun with you in jail.’”
Richardson, who is now retired but spent more than 40 years on the bench, was documented on more than one occasion by the ACLU for making jokes about jail rape in his courtroom. He’d also given defendants dehumanizing names and threatened to send them to jail if they made him mad.
The findings in Robeson were troubling, but Becker said Richardson was in the minority of judges the ACLU observed. When asked about recourse in cases like Patterson’s or others who were threatened with jail rape, Becker said defendants can make judicial ethics complaints, but many aren’t aware of the process.
The report also documented the experience of an Edgecombe man who spent years on probation — which costs $40 per month — because of his inability to pay more than $1,400 in court fines and fees. His case demonstrates the economic costs associated with imposing excessive court fines and fees.
A large number of the stories reported by the ACLU involved defendants who lacked adequate (or even any) representation in court.
On a more encouraging note, the report states that courtroom observations in Mecklenburg County identified some promising steps by judges.
“The silver lining is that Mecklenburg County has begun acknowledging the damage done by court debt and started deploying resources to lessen the harm it imposes on low-income residents,” it states.
Judges created a process to determine a defendant’s economic status before levying penalties, and it’s paid off, according to the report. Nonetheless, significant challenges remain, including the over-representation of communities of color on the court docket. Also, not everyone who needs an attorney gets one.
And while Mecklenburg judges have been resistant to altering their creative and humane practices in response to recent legislative action designed to deter the waivers of fines and fees (like monitoring court debt waivers via the publication of a list of individual judges’ names and actions), the news from other localities is less encouraging.
The state has steadily increased the breadth and harshness of court fines and fees over the years. In addition, in 2014, legislators passed a statute that requires the North Carolina Administrative Office of the Courts (AOC) to report how many court costs, fines and fees are waived by county and by judge. It resulted in a large decline in the amount of debt waivers issued across the state.
To compound that result, lawmakers passed a law last year  specifying that no court may waive or remit all or part of any court fines or costs without providing 15 days’ notice and an opportunity to be heard to all government entities affected by the monetary collection.
The provision means that the AOC mails out over 600 letters  per month to entities that might be entitled to some court fines and fees in order to give them an opportunity to object to court debt waivers, and to appear in court to be heard on the issue.
Court debt waivers decreased by nearly 39 percent from 2018 to 2019, according to the most recent annual AOC report to lawmakers . Individual judge waivers of court debt decreased by nearly 38 percent.
There was a similar drop recorded the year before.
“Notably, even before this precipitous drop in waivers, just 8 percent of total fines and fees were waived,” the ACLU report states. “Only judges in Mecklenburg and Cumberland counties waived more than 20 percent of fines and fees in 2016. Judges in Camden, Perquimans, Cabarrus and Moore counties waived less than 1 percent of fines and fees in 2017.”
So what does it all mean? Becker said the report is really geared toward public education, but she also hopes it spurs change.
The report outlines a conclusion and recommendations for the legislature, administrative agencies and judges.
“North Carolina must follow the lead of other states and work to end this two-tiered system of unequal justice in which the poor receive harsher, longer punishments for committing the same crimes as the rich, simply because they are poor,” the report states. “Lawmakers, administrative officials, and the courts should develop a more robust, rational, and equitable infrastructure that better documents these problems, accurately assesses people’s financial situation, provides indigent North Carolinians with an attorney at every step of the process, encourages judges to waive fees when appropriate, and ensures that no one in our state is sent to jail or prison simply because they are poor.”
Becker said House Bill 226  is a good start for lawmakers. It would repeal judicial waiver tracking and the law that requires additional hearing and notice before waiver of fines and fees, among other changes to the administration of justice. The measure passed through the House unanimously and is awaiting a hearing in the Senate Rules Committee.
Other changes that can be made outside of lawmaking include administrative agencies working to standardize data collection to create a clearer standard for indigency assessments. Judges should also ensure defendants’ right to counsel, in addition to actually waiving court fines and fees for those incapable of paying.
Becker said the ACLU is considering everything in its fight to change how court fines and fees operate in North Carolina, including legal action. She’s hoping it doesn’t come to that.
“We’re hoping the legislature hears our call for reform,” she added, encouraging the passage of HB 226.
You can read the full ACLU report below.