In North Carolina, it costs inmates $10 a day to stay in jail before they’re even found guilty of a crime. Yet most people jailed pretrial are there because they can’t afford bail. It’s a predicament Mecklenburg County Public Defender Kevin Tully points out time and again to judges: that those who can’t buy their own freedom are charged for their own confinement.
In North Carolina, as in other states, judges have the discretion to reduce or waive some fines and fees. But there, as elsewhere, they don’t often use it—thanks in part to legislation that makes doing so difficult. Now, district-court judges in Mecklenburg County, which includes Charlotte, are banding together to change how the courts impose fines and fees.
Starting last month, they committed to consulting a “bench card” during every case—a piece of paper they use to remind themselves to thoroughly assess a defendant’s ability to pay before setting a fine or fee, as well as which ones are waivable or can be reduced on a sliding scale. It’s a simple act, but one that could have significant consequences for low-income defendants and their families.
In an interview, Tully cited a recent case where a judge’s discretion had positive consequences for his client. A few months ago, the client was in jail on a trespassing charge, and he couldn’t make a $100 down payment to a bail bondsman. After seven days—and a $70 tab—he had a hearing to review his pretrial conditions. Tully remembers telling the judge that his client’s court date was still two weeks away. “If you don’t allow him to go home today because he doesn’t have the $100 to pay for his freedom, at his trial he will have run up a bill of $210 to stay in jail,” Tully said. “How on Earth is this court going to expect him to pay [that] when he can’t pay $100?”
The judge let his client out before trial, and if he’s found innocent he’ll walk away having paid nothing. But he could face a considerable amount of debt if he’s found guilty: $60 for a public defender, $55 an hour for that defender’s services, and a $173 general administrative fee. And depending on his potential sentence, he could be charged $40 a night in jail, $30 a month for probation, or a flat fee of $250 to do community service in lieu of incarceration.
These are all costs the 21 county judges have committed to taking seriously—and waiving or reducing when necessary. “The consensus that we would do this, that we would all do it, gives us cover that we wouldn’t be labeled as liberal or too soft on defendants,” district-court judge Elizabeth Trosch told me. “And it gives legitimacy to the practice change. This is a unified approach among judges.”
The judicial pact in Mecklenburg County was born of a working group; judges, public defenders, district attorneys, and court clerks had been strategizing since the spring of 2015 on how to reduce the county’s jail population. An analysis revealed that 18 percent were there because they failed to pay court costs, fines, or fees; and they stayed for roughly four to seven days, said district-court judge Becky Tin, who’s part of the working group. “A lot of these [legal financial obligations] that defendants were being arrested for not paying were set … without ever conducting an ability-to-pay hearing,” she said.
The costs of going to court in North Carolina have been climbing for years, suggested Democratic state Representative Marcia Morey, who was a Durham district-court judge before joining the legislature this spring. During her 18 years on the bench, she saw lawmakers raise the general court-cost fee from $47 to its current $173. “I don’t think they understand,” she told me, referring to her colleagues in the Republican-led legislature. “They’ve never been in a courtroom—they don’t understand the hardships these defendants face. They want more money coming into the state revenue.”
The money collected by the courts is dispersed to four state agencies and 611 counties and municipalities. All told, the fines, fees, and other court costs generate $700 million for the state’s general fund, where it’s diverted to courthouse maintenance, public education, and police training, among other government functions.
As I reported in July, this setup is not uncommon, nor is legislators’ determination to maintain a vital revenue stream. A Texas state official described to me how lawmakers’ “nickel-and-diming over a period of time … increase[s] the fees and fines.” In the process, the state only becomes more dependent on the money. A single increase “in an individual bill … doesn’t look like a big impact,” the official said. “But when you add up the five or six occurring in a session, then obviously it has a bigger impact.”
Since 2011, North Carolina state law has required the Administrative Office of the Courts to collect data on each judge’s history of waiving costs, which is then published in a report that essentially functions as a score card. Morey told me she thinks this list may be intended to “shame” judges who waive debt more frequently. “I think [lawmakers] were trying to shine a spotlight and thought the general public would not be sympathetic to poor defendants,” she said. (Though this could cut both ways: Judges in blue-leaning urban counties, like Mecklenburg, could be rewarded, not penalized, for forgiving fines and fees.)
The legislature wants to make it more onerous to waive each levy, too. A new law took effect on December 1 that requires judges to notify, via snail mail, every affected agency every time he or she issues a waiver—an extra, time-consuming hurdle that could mean thousands of dollars spent on postage every week, a county official told The Marshall Project. The law, Morey said, represents “tightening the screw to take away judicial discretion.” (Shirley Randleman, who heads the state Senate’s budget subcommittee for justice and public safety, could not be reached for comment. She told The Marshall Project that the measure gives departments who rely on the revenue—and lose out with waivers—“an opportunity to be heard.”)
The Mecklenburg judges think there could be safety in numbers. The judges brought in lawyers from Harvard Law School’s Criminal Justice Debt initiative who helped them develop the bench cards they now refer to. There are actually two cards: one for sentencing hearings and the other for hearings scheduled when a person fails to pay a fine or fee. Both instruct judges on how to determine a person’s economic means, like asking about their monthly income, existing debts, and any limitations on their driving privileges that would inhibit their ability to earn. Both cards also detail when a judge can waive or reduce the amount owed; covert it to a civil lean, which takes away the threat of criminal sanctions; or offer an alternative such as community service, sans any associated fee.
And if judges are looking for precedent for this exercise, they can consult Sandra Day O’Connor: Her opinion in the 1983 Supreme Court case Bearden v. Georgia is quoted on the cards. She wrote that a person who “made sufficient bona fide efforts to pay” should not be incarcerated for nonpayment, and that a sentencing court should evaluate “the entire background of the defendant in order to tailor an appropriate sentence for the defendant and crime.”
Mitali Nagrecha, director of the Harvard initiative, said that the cards were intended to “clarify” the law and “reset the tone.” She said other counties have expressed interest, and she hopes to release a statewide version in the coming months.
Trosch, who had the rare distinction of waiving more fees than she imposed last year, suggested judges could actually raise more money for the state by flexing their judicial discretion more often. For example, Nagrecha helped the judges parse the murky state laws that dictate when they are allowed to impose partial fees. If they match fines and fees according to the amount a defendant can pay, that’s better for state coffers, Trosch argued: “Before I would have just waived or gone with the full amount.”
Trosch told me she’s not worried about any legislative retaliation. “The whole point is that we need to be independent—we need to be constitutional,” she said. “There is consensus and all the judges are standing together. Part of what we’re saying is, ‘You’re not going to bully us or scare us into doing something that is wrong.’”