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NORTH CAROLINA POVERTY RESEARCH FUND 23 Court Fines and Fees: Criminalizing Poverty in North Carolina defendants’ income and expenses, recent bouts of homelessness, participation in a treatment program, or whether defendants can afford their own attorney in determining ability to pay. “In the end,” says Judge Becky Tin, one of the main forces behind this move, “we don’t want to saddle low-income defendants with unfair monetary obligations they aren’t able to meet, and that might cause them to go back to jail and never dig themselves out.”127 The ACLU of North Carolina, Harvard Law School’s Criminal Justice Debt Initiative and others are spearheading the adoption of bench cards that lay out, in clear and concise terms, guidelines for judges who are screening defendants for ability to pay. The bench card should be adopted by trial courts throughout the state to clarify judges’ authority and outline judicial options in waiving fines and fees. The guidance provided by the bench card can be reinforced with judicial training. We’re fortunate in North Carolina to have the UNC School of Government, which does an admirable job reaching and teaching judges across the state. Well-designed alternatives to fines and fees such as free community service or drug/alcohol treatment programs should be emphasized and made accessible to defendants with limited time and resources. These programs can be valuable experiences but must be matched to defendant’s situation and needs. Transportation, especially in rural areas, can also make it very difficult for defendants to reach their assigned program. In some places, eligible or suitable programs may not exist. Courts should consider creative measures to broaden the scope of eligible programs, including for example quality job skills training, additional education, or other types of treatment and counseling. Probation should not be extended simply because the defendant has not paid all fines and fees. Ending probation for those who have fulfilled all terms except payment would free up probation officers to concentrate on probationers with bigger issues, spare the courts from monitoring defendants unnecessarily and release defendants from oversight and continued expense. Because they senselessly inflict a great deal of harm, the penalties for defaulting on fines and fees (such as driver’s license revocation and jail) should be off the table unless the defendant is clearly able to pay but refuses to do so. Penalties should never be assessed without first conducting a meaningful ability to pay hearing. Other measures can incentivize payment and ensure that debt doesn’t persist for years. An annual amnesty of fines and fees of a certain age or amount, statutes of limitation for older debt or waiver of some or all fines and fees after a specified number of (reasonable) payments would encourage defendants to cooperate, knowing that they would not become saddled with permanent indebtedness. Court-appointed attorneys are no longer available for Class 3 misdemeanors, which do not carry the threat of jail time. However, eliminating the right to counsel in these cases is, in the words of one judge, “unfair and improper” because “the ramifications of having a criminal record are real.”128 As she pointed out, the basis of our adversarial system “depends on a delicate balance of players”: the prosecutor, the judge and the public defender or other appointed counsel. It is unrealistic to expect defendants to negotiate a good outcome, including reducing or avoiding fines and fees they can’t afford, on their own. Courts should ensure that all poor defendants in criminal cases receive adequate counsel and do not reject the offer of a court-appointed attorney out of concern for costs. Finally, the court system should be required to gather and produce information on how fines and fees operate in the criminal justice system. Researchers, advocates and others should be able to track and analyze the effects of fines and fees in North Carolina, especially on low income Tar Heels. It is telling that the most readily available data focuses on judges’ waiver rates and judicial branch remittances to the 127 Gordon, “His Sentence Carried No Jail Time. So Why Did He Keep Ending Up There?” 128 Pat DeVine interview with the North Carolina Poverty Research Fund, August 7, 2017.