2017 marks the 175th anniversary of Pennsylvania's 1842 statutory ban on debtors' prisons, which implemented the prohibition that has long-existed in the Pennsylvania Constitution. But today, courts still imprison thousands of Pennsylvanians each year because of their poverty.
ALM Media
Updated
2017 marks the 175th anniversary of Pennsylvania's 1842 statutory ban on debtors' prisons, which implemented the prohibition that has long-existed in the Pennsylvania Constitution. But today, courts still imprison thousands of Pennsylvanians each year because of their poverty.
People who have criminal charges, municipal code violations or traffic citations collectively owe millions of dollars in fines, costs and restitution. Long after these defendants have served jail time or completed probation and even in minor summary cases where the punishment for the underlying offense includes no jail or probation some Pennsylvania judges do not hesitate to use their contempt powers to jail those who fail to pay, regardless of their poverty. The result is that a poor defendant's failure to have $100 can be the difference between spending months in jail or walking free.
Courts that routinely jail such defendants have turned one individual's punishment into a form of collective punishment, as defendants plead with friends and relatives to give or lend them money to avoid jail. In one central Pennsylvania county's Court of Common Pleas, the presiding judge's first question to defendants who had failed to pay was whether they brought any money to court. The second question was how much money friends or family could post that day to keep them out of jail. Defendants were incarcerated until the money was posted, and in at least one case I observed, that meant keeping a defendant in jail until his fianc e's Friday pay day. In another case, in which I ultimately provided representation, a defendant was incarcerated for five months until he contacted us and we filed a successful petition for a writ of habeas corpus. He had been jailed because he did not have $800 and he was certainly not in a position while incarcerated to make and pay that money.
My investigation of court collections practices suggests that many judges on both the courts of common pleas and the magisterial district courts fundamentally misunderstand what constitutes a defendant's ability to pay, and thus what constitutes a willful act justifying a finding of contempt. If a defendant is unable to pay, then that defendant by definition lacks the ability to pay, the failure was not willful, and there can be no finding of contempt and incarceration. That has been the law in Pennsylvania since Commonwealth Parrish v. Cliff, 304 A.2d 158 (Pa. 1973), and the adoption of what is today Rule 706 of the Rules of Criminal Procedure two months later. A decade later, the U.S. Supreme Court reached the same conclusion in Bearden v. Georgia, 461 U.S. 660 (1983). Nevertheless, these practices continue to be widespread, as was recently documented by the Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness in its report "Ending Debtors' Prisons in Pennsylvania," to which the ACLU contributed.
It is the lack of clear and uniform standards on what constitutes ability to pay that drives these systemically unconstitutional outcomes. Pennsylvania Rules of Criminal Procedure 456 and 706 direct a court to determine whether a defendant is "financially able to pay," but they provide no explanation of what that actually means. Rule 706 goes on to note that a court can impose jail when it "finds the defendant is not indigent," but it provides no method to determine indigence. This vague standard leaves an incredible amount of discretion to trial courts to base decisions solely on whether a defendant smokes, has tattoos or has a cellphone rather than looking at the entire financial picture of the defendant. And although there is a clearly established right to counsel prior to imprisonment in these proceedings, attorneys are seldom provided to help the court understand defendants' financial circumstances or walk through the body of case law that does provide guidance.
This body of case law, which explains what constitutes indigence, is primarily found in the civil and criminal in forma pauperis (IFP) cases. While there are some very good Superior Court opinions addressing failure to pay in criminal cases, such as Commonwealth v. Dorsey, 476 A.2d 1308 (Pa. Super. Ct. 1984), which requires a court to affirmatively inquire into a defendant's finances, and Commonwealth v. Eggers, 742 A.2d 174 (Pa. Super. Ct. 1999), which says that receiving the services of the public defender or public assistance such as food stamps "invite the presumption of indigence," it is the IFP cases that best explain how to determine indigence.
The ACLU has analyzed a dozen Pennsylvania Supreme and Superior Court cases that discuss actual dollar figures and address when an individual is entitled to IFP status. After updating the dollar figures for inflation, the clear takeaway is that Pennsylvania's appellate courts tend to grant IFP status for individuals whose income is below 125 percent of the federal poverty guidelines, and they tend to deny IFP status for individuals whose income is above 125 percent. The cases do not explicitly discuss the federal poverty guidelines, but in practice 125 percent has been the approximate benchmark for 40 years, and trial courts should view it as a rebuttable presumption of indigence. It is also the same figure embraced by the Conference of Chief Justices and Conference of State Court Administrators' National Task Force on Fines, Fees and Bail Practices in a bench card it released earlier this year, as well as the figure agreed to by jurisdictions that have been sued and settled with the ACLU and other organizations for unlawfully jailing indigent defendants for nonpayment. In the legal services realm, 125 percent of the federal poverty guidelines is the benchmark used to determine eligibility for free services.
Beyond suggesting a dollar figure that denotes indigence, this IFP body of case law also explains that the dispositive question is "not whether petitioners are unable to pay the costs but whether they are in poverty. If they are in poverty, it follows that they are unable to pay the costs," as in Gerlitzki v. Feldser, 307 A.2d 307, 308 (Pa. Super. Ct. 1973). Inability to pay must be "read not with an accountant's but with a housewife's eye," as poverty is not a question of net worth but instead "whether he is able to obtain the necessities of life." The question is "financial, not moral," and just because an individual has some extravagant expenses (television installment payments in Schoepple v. Schoepple, 361 A.2d 665, 667 (Pa. Super Ct. 1976)) or some money (a positive net worth in Gerlitzki), the Pennsylvania Supreme Court has explained that "if the individual can afford to pay court costs only by sacrificing some of the items and services which are necessary for his day-to-day existence, he may not be forced to prepay costs in order to gain access to the courts, despite the fact that he may have some 'excess' income or unencumbered assets," as in Stein Enterprises v. Golla, 426 A.2d 1129, 1132 (Pa. 1981). Accordingly, when courts look at whether a defendant can literally come up with $50 a month but not whether he can afford to live on his own, or whether he can afford to eat only because of food stamps they violate that defendant's rights by forcing him to pay that money or go to jail.
We have found many judges open to these arguments and to guidance in evaluating ability to pay. After we reached out to one judge in Cambria County who had routinely jailed people who could not pay, the judge ended that practice and temporarily suspended our clients' payments to give them time to get on their feet. We have begun having discussions with other judges to adopt a Pennsylvania-specific bench card and checklist that we developed after reviewing best practices across the country and incorporated Pennsylvania law (available at www.aclupa.org/debtorsprisons). But without clear guidance in the Rules of Criminal Procedure, courts across the state will continue to unconstitutionally jail defendants and place them on payment plans that are unrealistic and only set defendants up for failure. To address this need, the ACLU has proposed rules changes to govern debt collection practices in magisterial district courts.
Ultimately, it is up to the Pennsylvania Supreme Court to address this problem head-on and adopt additional rules-based clarification to provide clear guidelines on how to determine whether a defendant has the ability to pay fines, costs, and restitution. It has been 175 years coming, but it is time for Pennsylvania to finally shutter its last debtors' prisons.
