Ohio's Journey to End Predatory Collection Practices: The Long Road to Reform . . . and the Miles Still to Travel
Last year the Ohio Supreme Court issued a Bench Card to all judges in Ohio instructing them on the legally allowed methods to collect costs, fines, and fees. Perhaps more important than telling judges how they can collect fines, fees, and costs, it also tells them what they cannot do.I am going to brag on my state a little . . . but before I do let me say that Ohio has a long way to go before it prevents all predatory collection practices in the collection of costs, fines, and fees. And after reading the rest of this little story if you think we are doing pretty well, please remember we still have these abominations called Mayor's Court. Yes, we still have places where the executive officer of a town wears two hats and can put on his judge cap and have people arrested and put in jail – usually until they pay some money. I have heard it called extortion. Mind you, I am not calling it that. Just saying, I have heard it called that.
So, with that disclaimer let's get on with the good news. Last year the Ohio Supreme Court issued a Bench Card to all judges in Ohio instructing them on the legally allowed methods to collect costs, fines, and fees. Perhaps more important than telling judges how they can collect fines, fees, and costs, it also tells them what they cannot do.
They cannot hold you in contempt for non-payment. They cannot violate you from probation or even extend probation for non-payment. They cannot lump fines and costs together but must treat them separately which becomes very important as you will see in a bit.
If you have unpaid fines, the court must hold an ability to pay hearing. At this hearing the person is entitled to counsel, even if the underlying charge was a minor misdemeanor or other charge for which the person originally was not entitled to counsel. Instead of the client having to prove they cannot pay, the burden is on the court to affirmatively find there is an ability to pay after inquiring into income, assets and debts. And these findings must be placed in a judgment entry. And if arrested on a warrant courts cannot delay the ability to pay hearing and simply ‘encourage' someone to pay by letting them stew in jail; the court is required to hold this hearing on the next day the court is open. Finally, for every day, or fraction of a day, that the person is in jail, the court must reduce the amount owed on the fine by $50. So, if you were arrested at 11:50 pm last night and you see the judge today, as is required, the fine must be reduced by $100.
But as we all know, it is not normally the fine that is the problem. It is the court costs which go up and up and up. By having the courts separate the type of debt owed, we know that most cases with large amounts owed are almost always due to court costs. And this separation is vitally important because in Ohio court costs are a civil debt (and any additional fees are treated as costs as well). Our state constitution prohibits jail over a civil debt (as do most state constitutions). So, when dealing with costs (and fees), the court cannot issue a warrant or even order the person to appear to explain why they have not paid. Costs are purely a civil debt and if the court wants to collect that money, they are just like you, me, or any business . . . go to court and start civil collection proceedings.
At this point, you may be wondering how we got to this point. Strangely, no new laws have been passed. Ohio has had very good statutory language and caselaw for some time. Our primary collection statute (ORC 2947.14) has been in effect for decades. And our primary case, Strattman v. Studt, 20 Ohio St. 2d 95 (1969), has been in effect even longer.
But, like most places, courts over time felt more and more pressure to fund themselves. And somewhere along the line the American psyche has conflated payment with morality – maybe it always has. So, our clients in poverty are treated as if they are somehow immoral and therefore dangerous. Over the years Ohio courts went the way of most courts around the country under huge pressure to generate income to cover operations and even fund the local government. The result was people in jail, hundreds of times a day, over debt owed to courts.
So, how did we pull back from that narrative? I wrote about the early years in another article here when I worked in a local county public defender office. Even when we started fighting and briefing the courts on the law, courts refused to change. Our fights were absurd . . . one court asking a client the cost of the shirt he was wearing; literally, the shirt on his back. Another demanded the client sell his business work van – a vehicle that was old, run down and worth little in actual value but which was his only means of staving off homelessness. Years of litigation ensued in individual cases with appeals and habeas petitions being filed. Our local appellate court was outstanding, issuing decisions that held the lower courts accountable and ordering the release of our clients who were illegally being held. But that was one office in one city. Many counties across our state have no public defender office and few private practitioners appealed costs and fines issues. Many courts never even told the person they had a right to counsel – the person was summarily held in contempt and jailed. One case at a time we were winning but for every case we won there were hundreds or even thousands that were subject to predation.
Two other things happened in Ohio that helped make this a statewide issue. First, in a stroke of luck, before the issue of predatory collection practices became the hot button topic that it is today, a disciplinary proceeding against a judge was decided. One of the charges against the judge was her failure to follow Ohio's law on the collection of costs and fines. She held a client in contempt and ordered him jailed for 270 days over unpaid costs and fines. Not only did she illegally hold him in contempt, she did not even contemplate his inability to pay – the client was working as a dishwasher earning $7/hour. The judge seemed to have great disdain for basic procedure and due process. “The state's difficulty in clearly articulating a position may stem from the trial judge's failure to comply with rudimentary due process requirements.” OSBA v. Goldie, 119 Ohio St.3d 428 (2008).
Now, you might imagine this was a watershed moment. Judges tend to pay attention to judicial disciplinary proceedings. But remember, at this point, most municipalities were heavily dependent on these funds to run the courts and support other operations of the local government. The alternative was to use general revenue funds to pay for the third branch of government – oh, the horror. As a result, change was slower than you would think. But this disciplinary decision did shortcut the long and arduous task of appeals and habeas work. When a court was identified as engaging in these practices a different conversation was now available with the court.
The second thing that happened was the Ohio ACLU focused a spotlight on the issue in a report: The Outskirts of Hope: How Ohio's Debtors' Prisons are Ruining Lives and Costing Communities (Apr. 2013). It is hard to give enough credit to the Ohio ACLU for this report. It was instrumental in raising this issue to the level where the Ohio Supreme Court took action. The hue and cry from courts identified in that report was astonishing, with many complaining directly to the Ohio Supreme Court. The outcome was probably different than those complaining courts imagined. As a result of the Ohio ACLU report and the stories from the years of litigation brought the matter to the attention of our Chief Justice who understood the issue and the need for corrective action. She directed the creation of the bench card.
This brings us to today. We have good statutory law and good caselaw. We have disciplinary action if violations occur. And we have written instructions from our highest state court to every judge in the state. This should be the end of the story.
Unfortunately, it is not. Ohio is a home rule state, perhaps the strongest home rule state in the country. So much is under local control with little data transferred to the state. In counties without any systemic indigent defense system and no reporting of case outcomes, identifying continuing predatory collection practices is difficult. And we still allow the piling on of court costs and fees with policies that allow jails to charge for the cost of the stay, probationers are charged the cost of every visit and every program, and children cannot even talk to an incarcerated parent because the jail phone charges are unconscionable.
Finally, to our shame, all of the above only applies to adults. Our juvenile costs and fines protections are stuck in the middle ages compared to the protections we provide to adults. Children in Ohio can be assessed costs for the entire expense of any treatment, all days held in confinement, all costs of the court process, and numerous other expenses. And almost none of the protections apply. As recently as May of this year our office represented juvenile clients who were assessed $20,809.39 and $46,010.29 respectively in costs. Not restitution, just costs. These are children and we are destroying their lives before they have even had a chance. While Ohio has come a long way we still have miles to travel before we can be proud of how we have stopped predatory practices in the collection of costs, fines, and fees.