Since the spring of 2015, a working group composed of Mecklenburg County judges, public defenders, district attorneys, and court clerks has endeavored to reduce the county’s jail population. Their analysis revealed that 18% of detainees were jailed because they failed to pay their fines and fees, staying between four and seven days on average—and the court was not holding ability-to-pay hearings before incarcerating defendants for nonpayment. Recent legislation has compounded this problem: the general court cost fee was increased from $47 to $173 over two decades, and N.C. § 7A-350 requires judges to report each instance where they waived fines and fees.
The Mecklenburg County working group requested the assistance of Harvard Law School’s Criminal Justice Policy Program, which helped the group develop two bench cards. One bench card provides guidance for judges when imposing fines and fees; the other outlines a process for sanctioning defendants who fail to pay fines and fees. Together, the cards provide information about how to determine a defendant’s ability to pay, specifics about judges’ ability to waive or reduce fines and fees, and a list of alternative sanctions for nonpayment. Broadly speaking, the aim of these bench cards is to eliminate or significantly reduce the use of arrest and incarceration for nonpayment of fines and fees in Mecklenburg County.
Key Provisions for Imposition
- The court shall not impose a conditional order to show cause.
- The court shall consider a defendant’s ability to pay before imposing fines and fees; fines and fees should not “pose an undue hardship.”
- The court can reduce and remit fines and fees to tailor the total amount due to the defendant’s ability to pay.
- A defendant is presumed unable to pay if they are eligible for a public defender, if their income is at or below 200% of federal poverty guidelines, if they are a full-time student, if they receive public assistance, or if they are incarcerated, homeless, or residing in a treatment program.
- The court should use ability to pay information to set a proportionate payment plan for fines and fees. “Guideline: 10% of net monthly income after basic living expenses.”
- If a defendant is unable to pay, the court should consider sentencing the defendant to community service or a program.
Key Provisions for Nonpayment Sanctions
- If an individual fails to pay by the required date, the court cannot issue an order for their arrest for non-payment. Instead, the court may send reminders (at least 3 recommended), remit the fine or fee, convert it to a civil lien, or issue an order to show cause.
- If an individual is ordered to show cause and appears, the court shall conduct an ability to pay hearing. At the hearing, the defendant must be appointed counsel, and based on the ability to pay determination, the court may waive or reduce fines and fees, convert them to a civil lien, allow the defendant additional time to pay, or provide for a community service or program alternative sentence.
- If an individual is ordered to show cause and does not appear, the court may send reminders or an order to show cause, remit the fine or fee, convert it to a civil lien, or issue an order for arrest. (The court cannot issue an order for arrest if the person was not served an order to show cause.)
After the Mecklenberg County judges began using the bench cards and reducing fines and fees, the North Carolina Legislature passed a law to discourage fee waivers or fee reductions by requiring judges to provide 15 days’ notice to each agency that would be affected by revenue reductions when fees are waived and informing them that they could participate at the hearing when the court considered whether to waive or reduce fees. The judges responded by issuing blanket notices to every affected agency, and they are continuing to reduce or waive fees.