Reform advocates laud decision that could reduce phenomenon of “debtor’s prison”
Stacking criminal charges and levying court costs to make money off defendants is nothing new in North Carolina, but it could become more of a rarity in the future.
The Court of Appeals published a unanimous opinion  this week holding that when multiple criminal charges arise from the same underlying event or transaction and are adjudicated together in the same hearing or trial, they are part of a single “criminal case” for purposes of assessing court costs.
The case stems from a Buncombe County incident – Dave Robert Rieger was pulled over for following another vehicle too closely and was ultimately arrested for possession of marijuana and possession of marijuana paraphernalia.
He took his case to trial and was convicted of both charges. Because the state filed the charges against him in two separate charging documents, there were two separate judgments against him even though they were disposed of through the same trial.
The judge imposed court costs in each of the two judgments, amounting to a total of nearly $800. The question to the three-judge appellate panel was whether Rieger experienced one criminal case or two.
“It’s not an easy question to answer,” wrote Judge Richard Dietz. “Both Rieger and the state offer reasonable but conflicting interpretations of the plain language, the statute’s history and the spirit and intent underlying the imposition of court costs.
“Ultimately, we are guided by the General Assembly’s intent that court costs reflect the costs that the justice system actually incurs. Court costs are not intended to be a fine or other form of punishment.”
Judges Hunter Murphy and Allegra Collins concurred with the opinion.
The North Carolina Attorney General’s Office would not comment on the ruling other than to say it was reviewing the case. It has 30 days to petition the state Supreme Court for discretionary review. Ed Eldred, who represented Rieger, also would not comment on the litigation.
A significant shift in state policy
James Markham, the Thomas Willis Lambeth Distinguished Chair in Public Policy at the UNC School of Government and expert in North Carolina court fines and fees, said the situation in Rieger’s case is not an anomaly and the opinion will likely have a major impact moving forward if it stays in place.
He said individual clerks and judges have to decide how they want to interpret the new language, but for the most part before the opinion, it was likely courts would assess costs for every judgment against a defendant.
He noted, however, that there are already a couple of state statutes that specifically forbid such double dipping by the courts. For example, the community service fees statute says that when a person has multiple charges, the court should assess one service fee per sentencing transaction.
Court officials and criminal justice reform advocates pointed out that the state doesn’t have a unified court system, and how costs are assessed depends on the jurisdiction of a case.
David Clark, senior assistant public defender in Guilford County, estimated the Court of Appeals opinion would affect 10 to 20 percent of criminal cases.
For the most part, he said, if someone pleads guilty to five charges stemming from one incident, a judge will assess only one cost. There are some, though, who make a point of saying that the law allows them to assess costs for each judgment.
“I think this is an excellent ruling for criminal defendants, because it makes it clear,” Clark said.
He and Markham said the opinion also raises some questions, including whether court costs can be assessed only stemming from one criminal event or if they can be assessed multiple times if multiple events are adjudicated together.
Clark raised a hypothetical situation in which a defendant breaks into 20 houses in 20 nights then gets caught and all the charges work through the system together and are resolved together. He asked whether 20 different court costs could be imposed because each was a separate incident.
Markham asked the same question and said one of the concepts the appellate opinion focused on was about how court costs should be proportionate to the court’s time spent on a case.
He also said the retroactive implication of the opinion was not clear. There are a number of defendants on probation with a condition of paying back court costs, and there could be some relief for them if their cases are similar to Rieger’s.
“I think they’d have an argument under this case that all but one of [their court costs] should be cancelled out under this new understanding of the statute,” Markham said.
Pushing back against the criminalization of poverty
Quisha Mallette, a staff attorney for the Fair Chance Criminal Justice Project at the North  Carolina Justice Center, said criminal defense
attorneys should be bringing attention to the opinion and using it as soon as possible to lessen the debt burden on clients. (Disclosure: Policy Watch is also a project of the Justice Center.)
She pointed to the appellate panel’s finding that court costs can function like a punishment, particularly for low-income individuals.
The opinion notes that payment of court costs  is typically a condition of a defendant’s probation and willful failure to pay can result in revocation, and loss of a driver’s license. Unpaid court costs can also be converted into a civil judgment that becomes a lien on the defendant’s property, it states.
“For many low-income individuals, paying hundreds of dollars in court costs (in this case the court costs are nearly $800) is beyond their reach,” the opinion states. “The consequences – possible probation violations, lack of a driver’s license, no access to credit – can lead to a cascade of crises that ultimately return even the most well-intentioned people back to the criminal justice system.”
Mallette advocates for equal access to courts and compares it to a public library – “there shouldn’t be a user fee or tax attached to it” – so she found it problematic that the opinion suggests court costs are justifiable to begin with. However, she praised the judges for highlighting the impact costs can have on low-income individuals.
“I think it is a big deal the judges did recognize the dire situations that can stem from court costs,” she said.
The ACLU of North Carolina released a report earlier this year  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.
It found that court fines and fees disproportionately impact poor people and people of color in the state and have created a modern day debtor’s prison .
Myesha Braden, Chief Counsel of Justice System Reform at the Southern Coalition for Social Justice , expressed similar concerns about financing the criminal justice system “on the backs of the poor.”
She said when a jurisdiction stacks court costs on an individual, it’s an indication its public safety mechanism may be driven more by the pursuit of dollars than by actual public safety, and the new ruling helps address that problem.
“The point of court costs is to reestablish in the public treasury the money that was expended on a given prosecution,” Braden said. “It’s still a type of defender-funded justice – it’s still problematic – but the goal of simply reimbursing the cost is a very different goal than making money.”
Braden encouraged people to think about the unfairness and the injustice of a system more focused on revenue than public safety and she pointed to the U.S. Department of Justice’s report in Ferguson, Mo.  that uncovered a pattern of racial discrimination by the police department stemming from the city’s reliance on the criminal justice system to raise revenue.
That investigation began after the police shooting of Michael Brown, and it ultimately found that court fines and fees funded 23 percent of the city’s municipal budget.
“When you have a situation where law enforcement and public safety has become so entangled with revenue generation, the public no longer trusts its government systems,” Braden said.
Braden said she thinks the appellate decision is a substantial win for people fighting to reform court fines and fees practices and that she hopes smaller courts across the state pay attention to it.
“Anything that causes people operating in that system to stop and think is a good thing, and hopefully this will cause judges to stop and think twice and defense attorneys,” she said. “Hopefully public defenders are paying attention that they have another very important tool in their toolkit when they’re representing individuals.”