Mimesis Law
11 August 2020

Pay Or Stay? What Happened to Bearden?

Mar. 14, 2016 (Mimesis Law) — The ACLU and Judge Carl Gerds of Eastpointe, MI reached an agreement in which Gerds agreed to stop the practice of “pay-or-stay” sentences, in which defendants who owe fines or costs were jailed if they couldn’t afford to pay them. My co-blogger Matt Brown described it as treating the symptom rather than the disease, but gave his qualified approval:

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.

Which is true, so far as it goes. The thing is, the Supreme Court held that this practice was illegal way back in 1983, in a case called Bearden v. Georgia. In Bearden, the defendant, a burglar, was sentenced to pay $750 dollars in fines and costs as part of his probation. As ordered, he paid $100 the day of sentencing, $100 the next day, and he was to pay the remaining $550 within four months. He paid the first $200 dollars, but lost his job shortly thereafter. Being possessed of only a ninth grade education and unable to read, he could not find another job and couldn’t pay the balance. The trial court jailed him, essentially for being poor.

We hold, therefore, that, in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment. Only if alternative measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine.

Summed up, the basic holding of Bearden isn’t failure to pay that’s a violation, it’s a willful failure to pay.

So how do courts get around Bearden? The typical dodge is by requiring a review of the payment status at some point during the probationary period, or after the payment deadline has passed, and then requiring the defendant to show up and explain why he hasn’t paid. A notice might go out the defendant, or he might be told the date of the review hearing when he’s sentenced.

If the notice doesn’t make it into the defendant’s hands (for example, because he’s forced to move in the meantime because he couldn’t pay the rent), or if he doesn’t have transportation to get to court, a warrant is issued. Usually, the bond amount on the warrant is equal to the amount of unpaid fines or restitution, and the bond can only be paid in cash. To get out of jail, therefore, the defendant either has to cough up the money or wait around until he can see the judge, which might be anywhere from a few days to a few weeks. If he pays the bond and gets out, great, case over.

If not, he goes before the judge, and promises to pay the balance if he gets out. (Realistically speaking, who isn’t going to promise this if it means the difference between sleeping behind bars or in his own bed?) The cycle then repeats as necessary. Defendants could end up doing months or years on the installment plan because supposedly, getting locked up is the result of not showing up for court. That fig leaf is cold comfort for people who are really getting locked up for being poor.

Every defense attorney has at one point or another fantasized about taking every case to trial. That’s a terrible idea, for all sorts of reasons we don’t need to get into here. In this specific context, however, the Bearden decision provides the tools to make such a strategy effective. After all, a judge can’t lock up a guy for not paying. Someone has to prove that he could have paid, but decided not to. If a judge is going to lock a guy up for being poor, and for no other reason, it’s time to hold the government to its proof every time.

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  • Jim48043
    15 March 2016 at 1:38 pm - Reply

    Michigan district courts stamp, iften in red, their notices to appear with “if you are sentenced on this date, be prepared to pay fines and costs in full. Michigan Court Rule 1.110.”, or something similar. Many assess monthly probation oversight fees in advance.

  • A Very Captive Audience | Simple Justice
    21 March 2016 at 6:40 am - Reply

    […] Noel Erinjeri pointed out at Fault Lines, the Supreme Court in Bearden v. Georgia held the failure of a court to ascertain whether […]