Noting increasing attention “on how fines, fees and bail practices disproportionately impact economically disadvantaged communities,” the National Task Force on Fines, Fees and Bail Practices recently released resources to assist state courts address the issue.  (The Task Force was formed in early 2016 by the Conference of Chief Justices and the Conference of State Court Administrators.)  The resources include a bench card that judges can refer to in the courtroom to ensure no one is jailed for failing to pay court-ordered financial obligations unless the constitutionally-mandated findings regarding willfulness have been made and due process has been followed.  The card also lists alternative sanctions to imprisonment that courts should consider when someone is unable to pay.

Recently in Alabama, two judge were sanctioned for their conduct related to the collection of fines and fees.

Based on an agreement and stipulation, the Alabama Court of the Judiciary censured a judge who said from the bench one day:

For your consideration, there’s a blood drive outside and if you do not have any money and you don’t want to go to jail, as an option to pay it, you can give blood today.  If you do not have any money, go out there and give blood and bring in a receipt indicating that you gave blood.  Consider that as a discount rather than putting you in jail, if you do not have any money.  So, if you do not have any money and you don’t want to go to jail, consider giving blood today and bring your receipt back or the sheriff has enough handcuffs for those who do not have money.

In the Matter of Wiggins, Final judgment (Alabama Court of the Judiciary January 21, 2016).  The judge made the statement while presiding over a docket designed to recover court-ordered costs, fees, fines, and restitution that had previously been imposed.  Approximately 47 individuals donated blood that day at the mobile blood bank; 41 were defendants on the judge’s docket.

The second discipline case addressed a systemic pattern of unlawful incarcerations.

Adopting a disposition based on an agreement and stipulation, the Alabama Court of the Judiciary suspended a judge for 11 months without pay for jailing offenders for non-payment of fines and costs without inquiring into the reasons for non-payment as clearly required by law, incarcerating offenders for months without a written order, and delegating judicial authority to a private probation company.  In the Matter of Hayes, Final judgment (Alabama Court of the Judiciary January 6, 2017).  Stating that it found the allegations “deeply troubling,” the Court noted the judge’s acceptance of responsibility; his apparent efforts, beginning in 2014, to remedy problems that gave rise to the proceeding; his cooperation in resolving the complaint; and the expiration of his current term as presiding judge approximately 4 months after he completes his suspension.

The judge has been presiding judge of the municipal court of the City of Montgomery since 2002.  Montgomery was sued in 3 federal lawsuits alleging that the city essentially operated a “debtors’ prison” that incarcerated people too poor to pay financial obligations without providing them due process.  The suits, with the municipal court judges as defendants in their official capacity, were settled in late 2014 in a joint agreement in which the city agreed to broad protections for defendants and to specific procedures the judges were required to follow.

To exemplify the court’s pattern and practice, the Judicial Inquiry Commission’s complaint in the discipline case included detailed descriptions of the cases of 12 individuals, their struggles to pay the court-imposed obligations, and the lost jobs and other hardships they suffered when they were unlawfully incarcerated by the judge.  The judge and the Commission stipulated that, on many occasions prior to 2014, the judge had incarcerated traffic offenders for failure to pay fines and costs without making a sufficient inquiry into the offender’s financial, employment, and family standing to determine if the offender was able to pay, without determining the reason an offender failed to pay, and/or without considering alternatives as required by the Alabama Rules of Criminal Procedure.  On numerous occasions, the judge also failed to allow an offender to fully explain the reason for his or her failure or inability to pay.

The Alabama Commission’s complaint described how the judge’s conduct implicated “far more than mere mistakes of judgment honestly arrived at or the mere erroneous exercise of discretionary power.”

Though a well-experienced judge, his erroneous legal rulings were consistently repeated.  He consistently ruled without first undergoing a full and fair hearing; he consistently made findings without sufficient evidentiary support; he consistently ruled without ensuring that important procedural requirements were in place to protect fundamental constitutional rights; and he consistently made legal rulings without first making specific determinations and findings.  Judge Hayes is not guilty of mere legal error, as his conduct was contrary to clear and determined law about which there should be no confusion or question.  Furthermore, under the circumstances presented, Judge Hayes’s and the Court’s failure to maintain essential records represents more than poor record keeping or administrative neglect; it is indicative of bad faith.  That his practices and the municipal-court’s practices over which he presides evidence bad faith is underscored by the fact that Judge Hayes did not begin to review the Court’s official procedure and policy regarding incarceration for failure to pay until the federal preliminary injunction and the distinct threat of additional federal action.