After the Department of Justice’s hard look into the Court practices and procedures in Ferguson, Missouri, a lot of municipal courts have also taken a look at their own practices and procedures to make sure that they don’t fall into the same trap.
It is helpful, then, for people to understand their own rights so they can act as a check and balance to ensure that things are done the proper way.
One of the major themes throughout the Ferguson Report was that people were being punished simply because they were poor. When a fine was, say, $500.00, someone with means could simply pay it and walk away. When someone didn’t have $500.00, they were jailed or placed on probation with all the burdens attendant to probation, such as probation supervision fees, having to take off of work to meet with a probation officer, and other inconveniences. There was no inquiry about the person’s ability to actually pay.
The law says that you can’t have your probation violated unless your failure to comply is willful. See Douglas v. Buder, 412 U.S. 430 (1973). More specifically, you can’t have your probation violated if you lack the ability to comply. See Bearden v. Georgia, 461 U.S. 660, 672-73 (1983). Someone on probation cannot be jailed simply for failing to pay fines, fees or restitution unless the Court has made some kind of inquiry about the person’s ability to pay. Being able to pay but not paying is one thing: having to choose between paying a probation fee and feeding your children is quite another.
Ideally, there is an inquiry about the defendant’s ability to pay before the sentence is entered. If someone can’t pay or demonstrates a significant financial hardship, at any point before or after sentencing, the Court must either waive the fines, surcharges, or fees; reduce them; or convert them to community service. If the fines, surcharges, or fees are converted to community service, it has to be at least at the rate of minimum wage. It can be more – for example, in my Court I set the rate at $10.00 an hour, simply because it makes the math easier. There have been times (though very rare) I have made that more, if the community service they are doing is particularly difficult or makes direct and substantial amends to the community for the underlying charge.
Georgia law defines how the Court should consider whether or not someone is capable of paying the fines, fees, or surcharges. In so doing, the Court should look at whether or not the person has a statutorily defined developmental disability; if they are totally and permanently disabled; if they earn less than the Federal Poverty Guidelines; or if they have been released from confinement within the past year and was incarcerated for more than 30 days before they were released. (In other words, a 3 day stint in jail doesn’t give you a pass – but if you’re in for more than a month, it would severely hamper your ability to pay your bills.)
Like everything in most Courts, if you think this situation applies to you, ask. The worst anyone can say is, “No.”
Nothing in this article should be construed as legal advice. It is being offered for informational purposes only. No lawyer can advise you about your case without hearing the particulars of your situation.