Earlier this year, the ABA’s Standing Committee on Ethics and Professional Responsibility issued 490 titled Ethical Obligations of Judges in Collecting Legal Financial Obligations and Other Debts. ABA
The opinion advises judges to ensure that individuals are able to pay criminal justice debt prior to threatening incarceration, revoking probation, exercising contempt powers, or other similar punishments.
The right to procedural justice comes from state and federal constitutional guarantees of due process of law, statutes, and judges’ ethical responsibility to ensure integrity and fairness in all proceedings. “The duty to inquire is foundational. . . to the constitutional rights of litigants. . . .” In essence, an individual who has the means to pay a fine should not be afforded greater constitutional protection than an individual who is unable to pay a fine.
The key Model Code of Judicial Conduct Rules at play are Rule 1.1 (“a judge shall comply with the law); Rule 1.2 (“a judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary”); Rule 2.2 (“a judge shall uphold the law and shall perform all duties of judicial office fairly and impartially”); Rule 2.5 (“a judge shall perform judicial and administrative duties, competently and diligently” and “shall cooperate with other judges and court officials in the administration of court business”); and Rule 2.6 (a judge shall “accord every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law”).
The Committee was compelled to file this opinion because judges in various jurisdictions repeatedly failed to ask whether a litigant was able to pay fines prior to incarceration for nonpayment. Further issues included ordering individuals to pay legal fees with disability or welfare benefits or by borrowing money from family members; making payment of fees a condition of probation and then revoking probation when the individual could not pay; and using the contempt power to collect unpaid civil debt by jailing people without first knowing if they could pay. One of the most egregious examples took place in Ferguson, Missouri, where the court primarily used its judicial authority to compel payments in order to benefit the City’s financial interest.
The opinion recommends ways to ensure judges follow the proper procedures:
- using a “bench card” that provides judges and other staff relevant instructions on ability-to-pay inquires;
- providing advance notice to litigants of their ability-to-pay hearing;
- distributing a form to “elicit relevant financial information”; and
- providing a meaningful opportunity to address questions about the litigant’s “financial status” at the hearing.
Bottom line: ABA Opinion 490 advises courts to adopt prescribed procedures to prevent incarceration of individuals for failure to pay fines and other criminal debt when those individuals legitimately lack the necessary financial resources to do so.
