YAKIMA, Wash. -- Let’s say you did something that got you in some serious legal trouble, such as trying to outrun a cop to avoid a speeding ticket or writing a bunch of bad checks.
After some time in jail, you get your day in court and are found guilty. In addition to the sentence the judge imposes, he starts rattling off a bunch of fees you’ll have to pay: reimbursing the county for holding you in jail, collecting your DNA for a state database, convening a jury to hear your case, and so forth.
In some cases, this can add up to tens of thousands of dollars. And, if you’re like most people who find themselves in court, you probably don’t have that kind of money on hand. And with a criminal record, getting a job to make that money won’t be easy.
Do you risk going to jail again because you can’t pay?
For the past couple of years, Washington’s judges have had to consider whether a defendant has — or ever will have — the wherewithal to pay those fees. If a defendant can’t pay, he or she is usually assessed a mandatory $600 on top of whatever fines are assessed or restitution the court believes the defendant is capable of paying.
While Yakima County Superior Court’s presiding judge says the county strives to stay within the law and not use the county jail as a modern-day debtor’s prison for those who can’t afford to pay, a legal advocate for the poor says that even the current fee structure puts an undue burden on low-income defendants who are trying to get a fresh start in life.
“Relying on fees, fines and costs for someone who cannot pay them is not a good long-term or short-term solution,” said Nick Allen, who works on Columbia Legal Services’ institutions project. “There’s a lot of work to be done.”
When courts sentence people for crimes, along with options for fines and jail time, there is also what are known as “legal financial obligations,” which are designed to cover various costs in the court system, ranging from victim restitution to costs for a public defender.
Some of the fees are discretionary, meaning a judge is not required to add it on to a defendant’s sentence, while others — such as the victim penalty fee and the $100 charged to collect DNA from the defendant — cannot be waived.
It’s a concept not unique to Washington state. Other jurisdictions have applied such fees and have been criticized by civil liberty groups for using them as a source of income.
State and national issue
In the wake of civil unrest following the shooting of an unarmed black teenager by a police officer in Ferguson, Mo., a federal investigation found that the St. Louis suburb’s municipal court imposed fines and fees in such a manner as to impose crippling debt on people living in poverty, while using the court fees to fill city coffers.
A 2014 study by the Washington chapter of the American Civil Liberties Union and Columbia Legal Services found that the average amount of legal financial obligations imposed in the state was $2,540. Eighty to 90 percent of people charged with felonies in the state were considered indigent by the courts.
The study found that some courts did not take into account a defendant’s poverty status in imposing fees, and that 20 percent of people booked into the Benton County jail were there for not paying legal debts.
Allen, who has worked extensively on the fee issue, said such practices create barriers for people who are trying to straighten out their lives. A court case cannot be expunged until the fees are satisfied.
The following year, the state Supreme Court ruled in State v. Blazina that judges have to consider a defendant’s financial state, and whether he or she is likely to be gainfully employed after serving time, before imposing a discretionary fee.
That ruling was codified recently in state law requiring judges to ask.
Presiding Yakima County Superior Court Judge David Elofson and presiding District Judge Brian Sanderson said their courts have been following the Supreme Court’s ruling since it came out.
“In every criminal case, we have to determine whether an individual defendant has the money to pay the fees,” Sanderson said.
Elofson said that process is identical to what judges do in preliminary hearings — the hearing where a judge determines if there is probable cause that a crime happened, and whether the defendant could have done it.
The questions focus on whether defendants have a job, or are likely to have one when they get out, and whether they have enough money to support themselves and their families.
And many times, the answer to those questions is no.
“The reality is, most people we see don’t make a lot of money,” Elofson said.
In those cases, judges will strike the discretionary fees. Elofson said Superior Court judges’ hands are tied on the victim penalty assessment — which costs $500 for felony and gross-misdemeanor convictions, and $250 for misdemeanor offenses — and the DNA testing.
And even one of the discretionary fees carries a cap, Sanderson said. While a judge can impose as much as $100 a day to recoup incarceration costs, they cannot go above the actual cost to the county, which in Yakima County is $87.95 a day.
The judges said the DNA testing fee can be waived if a defendant has had it done previously.
If a defendant posted his or her own bail, that is usually forfeited upon conviction and used to pay any legal fees and restitution.
While Yakima County judges follow the rule for the most part, there were two recent cases where an appeals court found that local judges didn’t inquire sufficiently into a defendant’s future earning potential when imposing fees.
In May 2018, the Spokane-based Division III Court of Appeals found that Superior Court Judge Gayle Harthcock did not take Aristeo Garcia-Rubio’s finances into account when she ordered him to pay up to $300 for incarceration costs. Garcia-Rubio, a former paraeducator with the Yakima School District, was convicted of second-degree child rape, and the appeals court said his chances of finding gainful employment after completing his 10-years-to-life sentence were not promising.
Likewise, the appellate court found in October that Superior Court Judge Ruth Reukauf did not adequately question Luis Gomez-Monges about his ability to repay $1,100 in assessed court costs following his conviction for first-degree murder in the killing of real-estate broker Vern Holbrook.
While Yakima County strives to keep its court-ordered assessments to the minimum for indigent defendants, Allen with Columbia Legal Services said that is not enough in some cases.
“While $500 may not seem like a large amount to you or me, it is a large amount to someone whose income (qualifies) for public assistance and cannot get a high-paying job because of the felony conviction,” Allen said.
He’s seen people who have had multiple convictions, and even though their indigency is taken into account by the courts, they wind up with bills in the thousands because a mandatory fee is tacked on, along with fines, for each conviction.
That causes problems when people have otherwise reformed their lives, Allen said, because paying off the legal fees is a prerequisite to having their criminal record expunged. And that means they are not able to get a good job that would allow them to pay off the debt in a timely manner.
No jail for nonpayment
While other jurisdictions have put people in jail for not paying the fees, Elofson and Sanderson said Yakima County will not do that, particularly if it is a case where someone doesn’t have the means to do it, as opposed to someone who can pay it but refuses.
“If we have someone go to jail for 24 hours, that increases their chances of recidivism,” Elofson said.
Instead, Yakima County sends such cases to collections, where the person can work out a payment plan and stay out of jail.
While Yakima County District Court uses a collections agency, the Yakima County Clerk’s Office under then-Clerk Janelle Riddle assigned a couple of staff members to collect court fees, Elofson said.
Tracey Slagle, Riddle’s successor, said she is still evaluating that program, as well as looking to hire additional financial staff for her office. She took office a month ago.
Allen said sending the case to collections is not an ideal solution. Rather, the fees should be eliminated completely if a person has no ability to pay.
This story was updated to correct which courts are required to assess victim penalty fees. Only Superior Courts are required to impose the fee.