Mimesis Law
23 October 2021

Pay or Stay Sentencing, Eliminating a Symptom of the Disease

Mar. 11, 2016 (Mimesis Law) — Eastpointe, Michigan Judge Carl Gerds III had a nasty habit of sending people to jail when it came to unpaid fines and fees, but the American Civil Liberties Union stepped in, and a higher court finally did something about it:

A suburban Detroit judge accused of sending poor people to jail if they couldn’t immediately pay fines has agreed to end so-called pay-or-stay sentences after a challenge from the American Civil Liberties Union.

An attorney for Eastpointe Judge Carl Gerds III signed the agreement, which was approved Tuesday by Macomb County Circuit Judge James Maceroni.

Gerds will consider a defendant’s job status, assets, basic living expenses and any other special circumstances.

The ACLU of Michigan says there’s no dispute that sending someone to jail without checking his or her ability to pay is unconstitutional. Nonetheless, it still has occurred in courts around the state.

Pay-or-stay sentences are bad enough when they’re imposed on someone who has the ability to pay and just doesn’t. It’s truly remarkable that Gerds was imposing them without considering whether the people had a job, or assets, or even giving their financial circumstances a cursory review. It’s more amazing yet given the circumstances of one of the woman whose case brought about the litigation:

The ACLU first challenged the judge in July by filing a lawsuit on behalf of a woman facing jail time because she failed to license her dogs and failed to appear in court. The woman, a single mother of two young children who receives government assistance, was unable to pay the $455 in fines Gerds ordered. In court filings, Gerds’ attorney said Gerds was never going to send the woman to jail; the attorney also has said Gerds was following court rules.

Licensing dogs costs money. Gas or bus fare to get to court costs money. More importantly, time spent in court haggling over unpaid fines is time you aren’t earning anything. Gerds shouldn’t have been surprised that someone who is probably too poor to license her dogs is also too poor to take time off work to go to court.

That woman’s situation is actually not that different from some others where Gerds screwed some poor people:

In June, Stephane Earl-Rico Milton was ordered to pay $334 for failing to use a crosswalk — jaywalking — or go to jail for 30 days. He didn’t have the money, and he spent five days in jail until a higher court released him pending an appeal.

Ryan Rockett was sent to jail in January because he couldn’t immediately pay $1,500 for driving without insurance and a valid license.

Thirty days for jaywalking is ridiculous, but a $1,500 fine for driving without insurance and a license may be worse. If Rockett had the cash to pay for insurance and sort out his driver’s license problems, he likely wouldn’t have gotten ticketed. Fining him an exorbitant amount worsens his financial situation and increases the likelihood he’ll reoffend. Similarly, fining someone who can’t afford to license her dogs will probably make that person less likely to be able to afford to license her dogs in the future. It’s a vicious cycle. Forcing Gerds to take into account each defendant’s personal financial situation only partly remedies.

Because of that, the ACLU’s thoughts are disappointing:

“Since we filed the lawsuit, Judge Gerds has said that he has abandoned the prior practice and now does ability-to-pay determinations,” said Michael Steinberg, legal director for the ACLU in Michigan. “We want to recognize that he has changed and we’d like to encourage other judges to follow in his footsteps.”

If other judges are jailing people who can’t immediately pay, then sure, it’d be nice if they’d follow in Gerds’s footsteps. It’d be far better, though, if they quit taking money from poor people whose crimes are linked to their inability to afford things the government requires that they buy.

Imposing a fine as a sentence creates all sorts of perverse incentives. Courts everywhere care about their budgets, and the very idea that they can be entrusted to fairly and impartially demand money that they happen to need from individuals over whom they have enormous power, including the power to jail, looks more than a little improper.

Fines are even more troublesome when the judicial branch of the government is basically acting as muscle to enforce debts owed to other parts of the government, which is the case when judges like Gerds are trying to get paid in cases involving things like dog licensing or not having a valid license. The only way to avoid such a case is to pay the government. The punishment for not doing it is to pay the government under threat of jail. No matter what, the government wins.

Moreover, fines as part of a sentence are inherently unfair to the poor, who happen to be the people who most commonly end up defendants in cases based on failure to pay the government for something that the government requires. Unlike a day of jail, which should theoretically be the same for Bill Gates as it is for a homeless guy, or even some community service hours, where the same is also more or less true, a $1,500 fine for some people might be the equivalent of their life savings. It’s almost certainly money they don’t have, and even if it’s wrapped into a payment plan, no matter how small the payment is, that’s money that isn’t going toward improving their lot in life.

By eliminating one of the worst practices and hoping others doing the same follow suit, the ACLU did some good. It’s a “good” that adds a small drop of fairness, while it still perpetuates something that, at its root, is an injustice, however. Unless we reexamine the very availability of a punishment that both rewards the punisher in proportion to its severity and applies inequally, more harshly affecting those most likely to suffer it for the very reason they had to suffer it in the first place, we’re just enabling the injustice to continue.

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  • Tharon
    11 March 2016 at 11:05 am - Reply

    Wow did that hit home. Compelling to share my story. My husband and I feel on hard times due to legal issues. We both lost our jobs and the cycle started for us. I knew how important we not have felonys on our record was so I sold everything and got the best to insure we could make it out of the trouble with out felonys on oue record. During this time my husband and I built up tickets due to having no funds to pay insurance. We found ourselfs going in and out of jail close to 5 times in on year for no tag tickets. Somehow we pulled through and are rebuilding despite the system that did its best to keep us down. Now we still sit with thousanda of dollars in outstanding fines and tickets. My husbanda close to $12,000 with the warrant round up happening we fear being hailed in to start the cycle all over. It would be nice if a judge could see we didn’t want to break the law we just didn’t want to give up either so we drove to our new jobs getting ticket after ticket and now we finally can afford insurance, tags, inspections. Although we drive with no licence due to fines and unpaid tickets. Its a horrible cycle. We will pull through it and we will rise above it but the scary thing is we could lose it all so fast just a few days in jail for driving without everything thing legal is a possibility but if we are going to ever get out of the cycle we drive to work chancing it every day. Wow what a thought a judge taking that into consideration and droping some of the $12,000 in fines and tickets would be better than sitting in jail to come out to no car, home, job, nothing but more tickets to pay. Makea me just sick hoping someday everyone has the experience so the system will change. Im sure some people will say I could have done something to change things true i could have just stoped driving to my job and then what?

  • Snitches Helping Themselves
    4 August 2016 at 9:43 am - Reply

    […] any lawyer who has seen his client led out of the courtroom in cuffs for not paying fines, fees, or restitution can tell you, this is pretty rare. Judges tend to be upper middle class, in […]