Ethics

Judges must ensure defendants can afford court costs before imposing fines and fees

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Judges must take steps to ensure individuals have the ability to pay criminal justice debt before threatening incarceration, revoking probation, exercising contempt powers or considering similar consequences. Such steps are essential “not just to the constitutional rights of litigants but to the integrity of the judicial process and public confidence in it,” according to Formal Opinion 490 from the ABA’s Standing Committee on Ethics and Professional Responsibility.

“Unfortunately, the problem of judges not conducting meaningful ability-to-pay hearings before incarcerating individuals for failure to pay criminal justice debt is widespread,” says Neil Sobol, a law professor at Texas A&M who has written extensively on these issues.

Opinion 490 refers to the obligation as an “important area of procedural justice” and notes that in some jurisdictions, judges are failing to meet their ethical responsibilities. The opinion cites examples in which judges have ordered individuals to pay financial obligations with their disability benefits; made payment of legal financial obligations a condition of probation and then revoked probation for failure to pay; and used the contempt power to collect unpaid civil debt by jailing or threatening to jail individuals without inquiry into their ability to pay.

“The imposition of court costs and fees on people charged with crimes, including juveniles, is a pervasive problem,” says Hamden, Connecticut-based attorney Tamar R. Birckhead, who has written several law review articles on related subjects. “It is in essence a hidden regressive tax that turns courthouse staff into collection agents, burdening the system and interfering with the administration of justice. Further compounding the issue, many courts divert these fees to projects that have little connection to the judicial system.”

Right to be heard

The opinion notes evidence that judges in some jurisdictions repeatedly fail to inquire into litigants’ ability to pay financial obligations prior to incarceration for nonpayment. According to Andrew Hammond, a law professor at the University of Florida, the standing committee decided to address the problem of fees and fines because of the proliferation of pretrial detention. “The criminal context certainly dominates the academic discussion of this issue, and maybe rightly so, given the liberty interest at stake.”

Individuals have a fundamental right to be asked about—and heard—regarding their ability to pay, according to the opinion. Due process principles under federal and state constitutions, laws and judges’ ethical responsibilities form the bedrock of this fundamental right.

The ABA ethics committee notes that “courts across the country have faced severe budget crises over the last few decades as a result of recessions and cuts in traditional sources of state and local funding.” This has led to courts increasing fines and other fees to help offset that loss of funds.

However, this has created serious ethics issues, according to the committee.

When judges ignore individuals’ ability to pay, they commit “a serious breach” of Rule 1.1 of the Model Code of Judicial Conduct, which requires judges to “comply with the law.”

When judges don’t inquire meaningfully into whether a litigant has the capability to pay, they cause a decline in public confidence in the judiciary—a key principle under Rule 1.2, which states that “a judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary.”

Furthermore, the comment on Rule 2.2 (“A judge shall uphold and apply the law and shall perform all duties of judicial office fairly and impartially.”) requires judges to show care to those who can’t afford counsel to ensure their matters are fairly heard.

“Incarcerating pro se litigants for failure to pay legal financial obligations without inquiring into their ability to pay directly undermines their opportunity to be heard on issues as to which they may most need accommodation,” the opinion states.

Two other provisions of the Model Code of Judicial Conduct are directly triggered, according to the opinion. These include Rule 2.5, which requires judges to “perform judicial and administrative duties, competently and diligently,” and Rule 2.6, which provides that “a judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.” Judges also must avoid conflicts of interest that arise from imposing fees that fund courts.

Guiding principles

“ABA Ethics Opinion 490 returns us to first principles,” says Indiana University-Bloomington law professor and judicial ethics expert Charles Gardner Geyh. “As early as the 14th century, English judges took an oath to ‘do equal law and execution of right to … rich and poor.’ That principle remains embedded in the oath federal judges take to this day, in which they swear to ‘do equal right to the poor and to the rich.’ Imposing a duty on judges to inquire into a defendant’s ability to pay, so as not to indiscriminately imprison people who fail to pay fines on account of their poverty is in keeping with this ancient ethics principle.”

Birckhead calls the ABA’s ethics opinion requiring judges to consider an individual’s ability to pay “an important step in the right direction.”

Opinion 490 encourages judges to consider “innovative options and comprehensive guidance” from the Conference of State Court Administrators, the National Center for State Courts and other organizations.

It lists four examples of methods to help ensure procedural justice: (1) using “a bench card” that gives judges and judicial staff instructions on “ability-to-pay inquiries”; (2) giving advance notice to litigants of their ability-to-pay hearings and that the ability to pay will be a critical issue at the hearing; (3) distributing a form to obtain relevant financial information; and (4) “providing a meaningful opportunity to address questions about the litigant’s ‘financial status’ at the hearing.”

Hammond appreciates the effort made by the committee in the opinion, but he says more is needed. “A bench card gives the judge a tool to make a determination about a party’s finances,” he says. “It’s certainly helpful, but I don’t think it’s sufficient. Better to have a bright-line rule … that also allows for some discretion if a litigant doesn’t automatically qualify based on an income test, public benefit receipt or representation by a legal aid attorney.”

Sobol praises the guidance the opinion offers. “In March of 2016, the U.S. Department of Justice prepared a guidance letter addressing the constitutional violations that arise from the illegal enforcement of criminal justice debt, including concerns about bail practices and incarceration based on inability to pay,” he says. “The letter was to be distributed by state chief justices to all justices in their jurisdictions; however, in 2017, Attorney General Jeff Sessions withdrew the guidance letter as part of the administration’s regulatory reforms. The ethics opinion helps restore guidance to the judges about the need for meaningful inquiry of an individual’s ability to pay legal financial obligations.”

This story was originally published in the August-September 2020 issue of the ABA Journal under the headline: “Penalizing Poverty: Judges must ensure defendants can afford court costs before imposing fines and fees”


David L. Hudson Jr. teaches at Belmont University College of Law. He is the author, co-author or co-editor of more than 40 books. For much of his career, he has focused on the First Amendment and professional responsibility.


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