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NORTH CAROLINA POVERTY RESEARCH FUND 15 Court Fines and Fees: Criminalizing Poverty in North Carolina hundreds of people are held at the Mecklenburg County Jail for failure to pay fines or fees in connection to their criminal convictions.78 To make Bearden meaningful, courts should also examine a defendant’s ability to pay at sentencing, when contemplating the assessment of fees and fines, rather than waiting until failure to pay the imposed obligation. Fundamental notions of due process of law, at a minimum, demand notice to the defendant of the centrality of ability to pay to the punishment determination and an opportunity to explain financial exigency and hardship. Many courts in North Carolina fail to meet such a basic standard. Third, even without directly triggered incarceration, substantial fees and court-imposed financial obligations can impermissibly burden the constitutional rights and interests of low income defendants. North Carolina law, for example, indicates a $250 community service fee “shall be paid by all persons who participate in the program or receive services from the program staff.”79 This important alternative to harsher sanction can thus be foreclosed to those unable to pay the daunting charge, effectively denying equal protection under law and penalizing defendants for their poverty. The installment fee, pre-trial release fee, probation fee, home monitoring fee, expunction fee, failure to pay fee, and others, in operation, similarly discriminate potently against poor North Carolinians without constitutional justification—closing doors, opportunities, programs and potential benefits based on income status. An even larger array of costs and fees directly burden the exercise of explicit constitutional rights. The fifth and sixth amendments of the United States Constitution assure rights of due process, jury trial, witness confrontation and assistance of counsel. Fees for bail, court facilities, state crime lab work, state lab analysts, and the general use of the court system can burden the exercise of such constitutionally secured rights in ways that fall very disproportionally upon poor Tar Heels. Perhaps most invidious, North Carolina General Statute § 7A-455.1 imposes a mandatory appointment fee on (already determined) indigent defendants who request counsel. National reports suggest that “poor people sometimes skip using an attorney” to avoid legally assessed financial obligations.80 Our North Carolina court observations and interviews with criminal defendants, judges and public defenders indicate that poor defendants refuse appointed (constitutionally-mandated) counsel out of fear of judicially-imposed fees and the sanctions that accompany them. This makes a mockery of the landmark decision in Gideon v. Wainwright. Fourth, North Carolina, as indicated, has an unusually long list of user fees in criminal cases. It joins that burgeoning lineup with what is likely the nation’s most aggressive scheme to restrict the judicial waivers that are necessary to assure that poor people aren’t punished criminally for their poverty. In 2011, the North Carolina General Assembly moved to limit traditional judicial discretion to waive economically burdensome fees by requiring “a written finding of just cause” before any waiver can be issued. The next year, 2012, the requirement was expanded to demand “findings of fact and conclusions of law” to support the determination. Then, in 2014, legislators took the path-breaking step of requiring the state’s Administrative Office of the Courts to issue an annual report, outlining by court and individual judge, how many times fees and fines have been waived—a report many judges describe as a legislative “shaming” effort. Then, in 2017, yet another restriction was passed demanding that courts provide a 15- day notice and opportunity to be heard to an array of government and quasi-governmental agencies—615 in all—that stand to receive a portion of the fines and fees under consideration to be waived.81 In response, Mecklenburg Chief District Court Judge Regan Miller remarked, “It’s clear that the provision is designed to make the process so cumbersome that judges will elect to not waive costs.”82 Judge Pat 78 Gordon, “His Sentence Carried No Jail Time. So Why Did He Keep Ending Up There?” 79 N.C. Gen. Stat. § 143B-708(c). 80 Shapiro, “As Court Fees Rise, the Poor Are Paying the Price.” See Diller, Bannon, and Nagrecha, Criminal Justice Debt, 12. 81 Schofield, “This Is What Government Looks Like When You Run It on the Cheap.” 82 Boughton, “House and Senate Differ Over Budget Provision Making It Harder for Judges to Waive Fees for Poor Defendants.”