Judges Must Weigh Inability to Pay Bail, Fees, ABA Says

Some judges are repeatedly falling short of their ethical duty to inquire about the ability of criminal defendants and civil litigants to pay legal debts, including bail, fees and fines, before jailing them for non-payment or threatening to do so as an inducement to pay, the American Bar Association said.

An opinion released on Tuesday by the group’s Standing Committee on Ethics and Professional Responsibility described the problem as a “serious breach” of a judge’s duty “to comply with the law” that could merit discipline for violating the Model Code of Judicial Conduct.

“The duty to inquire is foundational not just to the constitutional rights of litigants but to the integrity of the judicial process and public confidence in it,” the opinion said.

And it disproportionately affects low-income litigants, because better off ones can “simply pay to avoid incarceration,” it said.

The criminal justice system has grappled for decades with how to address inequalities in the system that sends disproportionately more low-income, minority defendants to jail.

A judge who doesn’t look into a person’s ability to pay a debt, whether civil or criminal, violates the model code’s mandate to comply with the law and accord every person in a legal proceeding the right to be heard, the opinion said.

There are a number of reasons why, over the past few decades, there’s been an increase in costs, it explained.

Courts across the country have faced “severe” budget crises, resulting in higher legal fines and fees, there’s been a growth of misdemeanor enforcement and an expansion of “a movement to require criminal defendants to pay restitution and other costs of administering the criminal justice system,” the opinion said.

But bail requirements and collection methods can compromise the model code’s dictates that judge act with fairness and impartiality, it said.

A Justice Department investigation following the fatal police shooting of Michael Brown in 2014 in Ferguson, Mo., raised the issue of court debt collection practices there to help boost municipal finances, a practice that it found singled out blacks and violated Fourth Amendment guarantees, the opinion said in citing what it called an egregious example.

And a Missouri judge, for example, was suspended for personally administering a law “library fund” from charges assessed in guilty pleas where money was spent on law books, wages, court furnishings, and court maintenance, the opinion said.

Despite these “vigorous collection policies,” the National Center for State Courts Handbook says that incarceration for failure to pay legal financial obligations should be “a last resort,” the committee said.

Judges should use “objective financial data” like income and net assets as well as financial obligations to determine an ability to pay and adopt policies and procedures to help, it said.

The Conference of State Court Administrators and the National Center for State Courts have guidance on how to design and implement these procedures, the committee said.

And doubts about an ability to pay should be resolved against incarceration if the person doesn’t pose a safety threat, it said.

By adopting “carefully prescribed procedures to prevent incarceration where a litigant lacks the resources to pay legal financial obligations or private civil debts,” courts help “protect the integrity, fairness, and impartiality of the judicial process,” it concluded.