Judges frequently are so out of touch with “regular” people that they just don’t understand how a defendant may have the inability to pay court costs, fees and other financial obligations at the time of sentencing. I’ve seen countless people who have been ordered to either pay the costs and fees associated with their sentences or go to jail. These sentences are commonly referred to as a “pay or stay” or “fine or time.” Far too often, a defendant doesn’t have the requisite amount of necessary funds and finds him or herself in jail while a wealthier defendant goes free. These sentences are blatant, inexcusable and vile violations of equal protection. Prosecutors, who supposedly have an ethical obligation to be “ministers of justice,” almost universally turn a blind-eye to these injustices.
There is nothing unconstitutional about “pay or stay” sentences when the defendant has the financial ability to pay. However, the United States Supreme Court has long held that depriving a person of liberty for failure to pay a fine he or she cannot afford violates fundamental due process principles. Bearden v Georgia, 461 US 660, 672- 73; 103 S Ct 2064; 76 L Ed 2d 221 (1983).
A high unemployment rate and dire financial straits have resulted in many Michiganders serving jail time because of their inability pay huge fines and costs on the day of sentencing. The result is devastating human costs and a waste of taxpayer money. Essentially what is created is a two-tiered system of justice in which the well-off are set free while those who are less fortunate are incarcerated. In cases where a defendant’s felony probation sentence is violated because of failure to pay fines, costs and fees because of his or her lack of financial wherewithal, that person will find him or herself on a bus and headed to the Michigan Department of Corrections.
Defense attorneys must understand that these “pay or stay” sentences may be challenged successfully where the judge does not properly assess the defendant’s ability to pay. People v Jackson, 483 Mich 271, 287 (2009). For a sentence of incarceration based upon failure to pay to be legal, the judge must make a good faith determination that the defendant had the ability to pay but chose not to willfully.
Courts that engage in this type of economic discrimination are directly in violation of the Michigan Constitution that explicitly prohibits imprisonment for debt. Const 1963, art. 1, § 21 (“No person shall be imprisoned for debt . . .”). The Michigan Supreme Court has affirmed this mandate, finding that “a truly indigent defendant should never be required to pay “a court-ordered obligation.”
Defense attorneys have an ethical obligation to argue on behalf of their clients that the Michigan Supreme Court has made clear that at the time that the sentencing court is enforcing a payment obligation, a defendant is entitled to a comprehensive ability-to-pay assessment.
What is an ability to pay assessment? This is when a court makes a determination as to whether a defendant is either indigent or has the ability to pay the fines and/or costs as imposed. For example, if a defendant owes $25,000.00 is restitution and he is not indigent but cannot come up with the full balance owed, he cannot legally be incarcerated for his inability to pay even though he may employed and technically not be indigent. The court should consider the defendant’s present employment, earning capacity, and living expenses, outstanding debts and liabilities‚ public assistance and other similar considerations. Often times these elements have already been considered and a defendant has been determined to be indigent for purposes of appointing an attorney. It is hypocritical to determine that someone is indigent for purposes of appointed counsel and then make a contrary finding when it comes to the court collecting money.
Almost thirty years ago, the United States Supreme Court held that to deprive a person of his conditional freedom simply because, through no fault of his own, he cannot pay a fine . . . is contrary to the fundamental fairness required by the Fourteenth Amendment. Bearden v Georgia, 461 US at 672-673. Today, the constitutional right against imprisonment for failure to pay a debt is well established under both the Thirteenth and Fourteenth Amendments (the Thirteenth Amendment prohibits conditions in which the victim is coerced by threat of legal sanction to work off a debt to a master. Under the Fourteenth Amendment, a State may not impose a fine as a sentence and then automatically convert it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full).
If someone is in a situation where they have been jailed or imprisoned because of inability to pay, it is critical that a defense attorney fight to gain the client’s freedom by arguing that the “pay or stay” sentence is unconstitutional. If enough lawyers join the fight on behalf of their clients, courts will have no choice but to start doing the right thing or risk being overturned by appellate courts.
The attorneys with LEWIS & DICKSTEIN, P.L.L.C. are used to fighting for our clients even in the face of seemingly impossible odds. Any defendant charged in Michigan with a felony or misdemeanor deserves to be treated fairly and represented zealously.
Mr. Loren M. Dickstein
LEWIS & DICKSTEIN, P.L.L.C.
2000 Town Center, Ste. 2350
Southfield, MI 48075
At LEWIS & DICKSTEIN, P.L.L.C., we have been passionately and zealously defending those charged with criminal offenses for almost 40 years (collectively). From cases that must go to trial to those cases where the priority is minimizing the consequences of a conviction, Loren Dickstein and Randy Lewis are prepared to do whatever is necessary to help. Please feel free to call us for a free consultation 24 hours per day, 7 days per week at (248) 263-6800 or complete a Request for Assistance Form and a defense attorney will contact you promptly.