For the definition of a vicious cycle, look no further than a recent Globe story describing the criminal justice system’s practice of assessing “fine time” — that is, incarcerating poor defendants who are unable to pay money owed to the state.
A report issued by a state Senate committee found about 100 individuals last year, in three Massachusetts counties, who were sent to jail because they didn’t have money to pay accumulated debts such as counsel fees, court costs, probation fines, or other obligations. Putting them in jail makes it even harder for them to find work, leaving them more likely to relapse into criminal behavior — and then start the cycle all over again.
The court system needs to adopt clear guidelines for judges, compelling them to look closely at defendants’ capacity to pay before putting them behind bars. Only defendants who have a realistic ability to pay fines but choose not to should face imprisonment.
The need for reform was clearly illustrated by the case of a 27-year-old homeless man, James K., who in the spring of 2015 stood before a judge for about 45 seconds in a Dudley courtroom, according to the report. He owed $1,100 in fines from an old criminal case. James told the judge he was poor, to which the judge said: “OK. All right, he’s gonna be surrendered on the fines. He’ll be incarcerated. . . . Thirty dollars a day they’re gonna give you at the jail, OK?” Indeed, Massachusetts law allows judges to send defendants to jail to “work off” their debt at the rate of $30 per day. But “no one is supposed to go to jail unless they are found in contempt of the court by refusing to pay,” said state Senator Michael Barrett, who oversaw the committee that issued the report. James, who had spent the night before in a shelter, truly didn’t have the money. He then went on to spend 36 days in jail on “fine time.” He hadn’t spent a single day in jail on the original charges, from a drug arrest, that first brought him into court.
In nearly half of the examined cases, the legislative committee found that defendants didn’t have the assistance of attorneys, or weren’t offered it, when judges considered whether to incarcerate them for their inability to pay fines, which represents a potential violation of constitutional rights. That’s also what happened to James: He wasn’t asked whether he wished to have an attorney. The review also found that courts did a poor job evaluating a defendant’s financial difficulties. “Judges must inquire ability to pay in a pretty searching and methodical way, not make a snap judgment on a gut instinct. Is it a function of contempt of authority or simple poverty?” said Barrett.
The problem is that the judiciary lacks clear guidelines when confronting a defendant who has not paid a fee or a fine. The good news is that there is a working group, established by the Trial Court, already charged with proposing policy changes to “ensure that fines and fees are not unduly punitive and do not disproportionately affect those without adequate financial means.” A report is expected next month. The Legislature should also make it a priority to follow the report’s recommendation of doubling the credit for “fine time” served to $60 per day.
Another part of the solution, though, is thinking more carefully about when it’s appropriate to assess fines in the first place. Fines and fees that don’t actually work to deter crime, or only punish offenders who are poor by setting them up to lose their liberty, have no place in Massachusetts.