New York State Judges Are Jailing People Who Can’t Afford Their Fines

State law must change to stop judges from using jail time to force the poor into paying penalties they can’t afford, says one advocacy group.

Amber Griswold pointed to a 2014 traffic stop in Canandaigua, New York, as the start of her downward spiral. That year, a police officer pulled her over while she was driving alone on a learner permit and issued her a $400 ticket, she said in interviews with The Appeal. Unemployed and struggling financially, she couldn’t afford to pay it, so the state suspended her license.

A few months later, Griswold found a job at a Rochester grocery chain. That lasted until May 2016, when she was pulled over three times. She was cited for driving on a suspended license, and her car was impounded as a result. With no way to get to work, she quit her job.

One of the May stops happened in Farmington, where the town’s justice court ordered her to pay a $588 fine for aggravated unlicensed operation of a vehicle and marijuana possession. To pay that and her other fines, she said she started selling drugs. In December 2016, she was sentenced to a year in prison on a drug charge and a weapons charge. (An officer found brass knuckles in her car during one of the May stops, she said.)

Griswold still owed Farmington the $588 after leaving prison. The court put her on a $20-per-month payment schedule, but coming up with the money was near impossible, she said. After leaving prison, she was unemployed, no one wanted to hire her, and she was on medication and disability, she said. Griswold’s only income was $21 a month in cash assistance from the state and $192 in food stamps, according to her and her attorney, Heather Crimmins, an Ontario County assistant public defender. Griswold said the Farmington court threatened to jail her if she didn’t keep up with scheduled payments. Tracey Curry, the Farmington court clerk, did not respond to a request for comment before press time.

But Griswold didn’t know there was an alternative. She could have asked the Farmington court to hold a hearing on whether she could afford her fine. Under New York law, when a sentence includes jail time for nonpayment of a fine, defendants can ask to be resentenced to pay a lower fine amount or have their payment terms adjusted.

The Fund for Modern Courts, a nonprofit advocate for reform and improvement in New York’s court system, charges in an April report that the state’s justice courts aren’t considering defendants’ ability to pay fines before jailing them for nonpayment. The report, “Fines and Fees and Jail Time in New York Town and Village Justice Courts: The Unseen Violation of Constitutional and State Law,” concludes that state law needs to be amended so that all courts consider ability to pay when a fine is imposed and again before jailing people for nonpayment.

“At the moment in New York there is no requirement to consider ability to pay when you fine somebody unless they know they have to request a hearing,” said Modern Courts’ chairperson, Amelia T.R. Starr. “And the minute that they are fined, they can’t pay. And so it’s not a shock when 60 days later or 90 days later or whenever, they can’t pay.”

Modern Courts chose to focus on justice courts—the almost 1,300 town and village courts that handle mostly lower-level violations and misdemeanors ranging from traffic offenses to drunk driving, and can send people to jail—because the state has limited supervision over how they function. The courts are presided over by 2,200 elected judges, almost two-thirds of whom have no law degree.

For its study, Modern Courts facilitated a focus group of town and village judges, conducted 27 interviews, surveyed public defenders and defense attorneys, and sent Freedom of Information Law requests to county jails. Of the 95 public defenders and defense attorneys who responded to its survey, 53 said justice courts “rarely” or “never” took a defendant’s ability to pay into account before issuing a bench warrant for an arrest for nonpayment of a fine.

The study described one case in which a client had been found guilty of a traffic infraction in Saratoga County that carried a fine of $100 or 15 days in jail. According to the lawyer, the defendant offered the $41 he had with him and asked for more time to pay the rest. Instead the judge simply sent him to jail.

Adjusting fines and fees has become ever more important as the state has increased financial penalties for driving infractions, misdemeanors, and felonies. The mandatory surcharge for a misdemeanor—what’s paid on top of a fine—has more than quadrupled since 1982, according to a May report by the New York City Bar Association. In 2009, the cap on what a court can charge to reinstate a license doubled from $200 to $400. “This is a form of regressive taxation and it’s a form of extracting wealth from our most vulnerable communities. And it needs to stop,” said Katie Adamides, New York State director for the Fines & Fees Justice Center.

Public defenders from three of the six New York counties interviewed for this story—Ontario, Onondaga, and Sullivan—said they had never seen a town or village judge in their county hold an ability-to-pay hearing. “Every time [a defendant] is not paying and they’re saying, ‘Well, I can’t pay because X, Y, and Z’ —well, that should be a hearing, and it’s never happened,” said Mollie Dapolito, an Ontario County assistant public defender. David Savlov, deputy director of the assigned counsel program of the Onondaga County Bar Association, has practiced in New York since 1985 and said that until two years ago he was a private criminal defense lawyer. “I do a lot of this stuff. I don’t recall ever having seen a hearing of that nature,” he said.

Most defense lawyers interviewed for this story also said town and village judges use repeat court dates to pressure defendants into paying fines they can’t afford. Wayne County public defender Andrew Correia pointed to one impoverished client who pleaded guilty in front of the Arcadia town judge on Feb. 20 for an aggravated driving-while-intoxicated misdemeanor, for which she’ll have her license revoked for a year. She also faces a $1,000 fine and $400 surcharge. Even though she pleaded guilty and has come up with $1,120 of the $1,400 she owes, the judge is refusing to issue a sentence until she pays the full fine. In the meantime, her license is suspended, according to Correia. The judge has required her to show up in court each month to explain why she hasn’t paid. If she misses a court date, Correia said the judge will issue a bench warrant for her arrest—technically not for failing to pay but for missing court.

The working poor, like Correia’s client, face “repeated court dates, over and over and over again,” he said. Meanwhile, “middle-class people who can find a way to come up with a thousand dollars, you know, they get one court date, bing, bang, boom, they’re done.”

The New York State Magistrates Association, which represents town and village judges, has disputed the report’s conclusions. Judge Tanja Sirago, the association’s executive director, said it was given three days to comment on the report after release, and it issued a nine-page letter calling the report’s data insufficient to support its conclusions. The letter criticized the report’s authors for not releasing their survey instruments and accused them of cherry-picking examples that aren’t representative.

Asked to respond to the story of Correia’s client, Sirago said, “You have to broaden your horizons on that because this is one specific case [in which] the judge might not be doing it correctly. That is not the protocol, that is not the procedure that ought to be done. And so that is an exception.”

The state magistrates association letter also said it was unfair to single out justice courts as the sole culprit in jailing poor defendants for not paying fines and fees. At least one example supports that contention. Steven Ballan, a St. Lawrence County assistant public defender, pointed to an Aug. 5 email from the clerk of his county court detailing the arrest and jailing of a defendant over the prior weekend for not paying a fine and surcharge. “Now you see why it is so hard to get [town and village courts] to stop doing it when the County Court does it,” Ballan wrote in an email.

Starr, the Modern Courts chairperson, said the group is drafting a bill that it intends to have introduced in the next state legislative session in January 2020. Among other provisions, it would require that before assessing fines or fees, judges must consider defendants’ ability to pay and adjust payment terms accordingly. When defendants face incarceration for nonpayment, courts also would have to hold ability-to-pay hearings before ordering them jailed.

The magistrates association opposes the bill, arguing that it would impose excessive burdens on the justice system and defendants. “Like anything else, we have a limited amount of resources and limited amount of time. How much time do we spend in investigating the bona fides of a statement that they can’t pay?” said Judge Jonah Triebwasser, the association’s president.

In response, Starr said, “No one’s liberty should be taken away because of poverty, and no one should be placed in jail because the courts do not have time to meet their constitutional obligation. Something has to change.”

In April, Crimmins, Griswold’s lawyer, asked the Farmington court to convert her debt to a civil judgment. If granted, it would have meant her debt would still show up on credit reports, but jail would be off the table.

But rather than accept that request, the court changed tack: It required an ability-to-pay hearing. That was actually a worse outcome because Griswold would have had to find the $30 it would cost to get to the court by bus—more than the $20 she owed the court every month.

Attempts to reach Griswold in recent weeks weren’t successful. But the court’s request for a hearing may have worked: Griswold avoided the hearing by making her final payments, according to Curry, the Farmington court clerk. In the end, the court got its money.