“Debtor’s prison” — the term conjures up images of crude, unenlightened, medieval justice systems and caricatures of Dickensian England. History, of course, has proven the ineffectiveness of debtor’s prisons and of the general concept of imprisoning persons for the nonpayment of debts or fines. As a result, our enlightened judicial system no longer employs this unfair, outmoded practice.
Not true, argue John Mitchell and Kelly Kunsch in their recent article “Of Driver’s Licenses and Debtor’s Prison,” published in the Seattle Journal for Social Justice.1 Mitchell and Kunsch examine the charge of driving with a suspended license in the third degree (DWLS 3) and compare the current state of the law in Washington to the debtor’s prisons of the past. They conclude that driver’s license suspension should never be used as a means to collect fines because low-income persons are spending significant amounts of time in jail as a direct result of their inability to pay non-safety-related traffic fines. The article urges both the legal community and lawmakers to employ more effective and fairer means to further the policies behind the collection of traffic fines.
In illustrating their point, Mitchell and Kunsch ask the reader to consider the story of a single mother whose neglected traffic citation for running a stop sign and driving a car with expired tabs eventually ballooned into more fines, a DWLS 3 conviction and jail time. She lost her job and the apartment where she and her sister were living with their children, had several thousand dollars in fines, and still did not have her driver’s license.
At any point in the process, “the rest of us” with more substantial financial resources could simply have written a check and paid the fines. But without sufficient economic reserves, low-income persons do not have the means to pay the fines and still provide for basic living necessities. For poor people, minor “bumps in the road” can lead to significant jail time and life-changing circumstances.
Recent changes in Washington law are slowly moving toward smoothing out these bumps. In 2004, the Washington Supreme Court held, in Redmond v. Moore, that the driver’s license suspension statutes in effect at the time violated due process because they did not allow for an administrative hearing to protect against the erroneous deprivation of a person’s driving privilege.2 RCW § 46.20.245(2), enacted in the wake of Redmond v. Moore, provides for the right to request a limited administrative review before the DOL can revoke a driver’s license for nonpayment of fines.
Another recently passed statute, RCW § 46.63.110(6), requires that courts offer payment plans to persons who have outstanding tickets that are not more than a year old and who cannot pay the fines in full at one time. Upon the first payment, the statute requires that the court send notice of adjudication to the DOL so that the person can get his or her license back. In addition, RCW § 46.20.289 provides that any tickets issued before July 1, 2005, even if unpaid, cannot be used to suspend a person’s license.
The effectiveness of the new legislation and the extent to which it is actually being implemented, however, are yet to be determined. Calls to municipal and district courts in and around King County have shown that some courts may not be abiding by the legislation or its spirit.3 At one court, the clerk explained that, while persons may write a letter to the judge and request a payment plan, the court will not send notice of adjudication to the DOL and simply will not lift the hold until the person has paid the outstanding fines in full. The clerks at some smaller municipal and district courts, for example, were not aware of RCW § 46.20.289. Other courts have no established process for setting up a payment plan and notifying the DOL when payments are made.
Although RCW § 46.63.110(6) defines “payment plan” as one “that requires reasonable payments based on the financial ability of the person to pay,” the payment plan options at some courts are prohibitively expensive. In one court, a person has just four months to pay off outstanding fines, regardless of the amount owed. For persons of limited means, the cost can be prohibitive.
Further, a disturbing lack of communication between collection agencies and some courts may inadvertently be causing drivers to pay off older tickets (pre-7/1/05) before applying payments to the tickets that actually resulted in a license suspension. One agency used by many Puget Sound-area courts does not ordinarily differentiate between tickets issued before and after July 1, 2005.4 By default, the agency applies payments to the oldest tickets on an individual’s account first. While the statute does not specify how payments are to be applied, this practice is contrary to the policy behind the rule precluding older tickets from causing a license suspension.
Some courts have created relicensing programs to help low-income people get their licenses back while still making payments toward tickets. King County District Court has a relicensing calendar twice a month during which individuals may enroll in the program rather than face a DWLS 3 charge. Representatives from community advocacy organizations also are at the hearings to assist individuals with other issues, such as language difficulties, illiteracy and disability. A collection agency representative also is present to help set up payment plans under which payments are applied first to more recent tickets.
In addition, the court recognizes the importance of community service and the reality that many people do not have the resources to make the minimum monthly payments. In those cases, the court allows individuals to pay off the outstanding fines by completing community service or working crew hours. The court will release a hold on a person’s license once the person shows proof of entering a community service program. The court also provides for judicial review and discretion in the reduction of fines in cases where the administration of justice suggests such a remedy.
The relicensing program also has the benefit of generating considerable revenue and avoiding prosecutor, public defender and jail costs for cases diverted from prosecution. A 2004 study estimated that for every dollar spent on the King County District Court relicensing program, the court either earned or saved two dollars.5
Seattle Municipal Court has a similar, but more limited, relicensing program and will identify the post-July 1, 2005 tickets that are causing the license suspension and recall those particular tickets from the collection agency. The individual can then make payments toward the newer tickets through the court’s own internal collection agency before making payments toward older tickets. The court also allows individuals to substitute community service hours for outstanding fines and releases license holds upon entry into community service.
Racial disparity in the issuance of traffic citations also is a concern. While public awareness about racial profiling has been raised in the past few years, a study in 2000 showed that African-American drivers in Seattle were nearly twice as likely as whites to be ticketed for traffic violations.6
Further, while Seattle no longer impounds cars for nonpayment of fines, other jurisdictions still do. The Washington State Patrol, for example, gives its officers discretion, after considering reasonable alternatives, to impound vehicles when the driver is arrested for driving with a license that was suspended or revoked because of unpaid tickets.7 This practice can compound financial problems by adding significant impound fees and effectively requires poor people to pay off all outstanding tickets — regardless of where or when they were issued — just to get their cars back. For those who can’t, their cars are sold at auction, creating even more problems for already financially strapped owners.
Poor people should be able to get their licenses back just as fast as those who have more money. The result of current practices, as Mitchell and Kunsch explain, is the criminalization of low-income persons. Those who cannot pay the fines are forced to choose between not driving — and potentially losing a job, missing a doctor’s appointment or eliminating child-care options— and driving anyway. The latter option, of course, puts the poor at risk of DWLS 3 charges, life-changing experiences with the criminal justice system, and stigmatizing criminal penalties.
In New Orleans, a lawsuit claiming that New Orleans Municipal Court judges have violated the U.S. Constitution by giving jail sentences to defendants too poor to pay fines has been resolved through negotiation, with the judges promising to change their practices.8 According to the Times Picayune, “Law clinic director Pamela Metzger said the two sides reached a good faith understanding that ‘pay or stay’ sentencing, in which the rich pay fines and the poor do time, is illegal.”
Similarly, a system in which the rich pay fines and the poor not only do jail time, but also never get their licenses back, raises serious constitutional questions and is terrible policy. History has shown that imprisonment is simply an ineffective means of coercing payment from poor people. It is finally time to rid our system of the practical effects of debtor’s prison and end the disparate impact of license suspension on low-income persons.
Cooper Offenbecher is a student at the University of Washington School of Law, class of 2008. He wishes to thank Bob Boruchowitz and Mary Wolney for guidance and feedback on this article.
1 John B. Mitchell and Kelly Kunsch, Of Driver’s Licenses and Debtor’s Prison, 4 Seattle J. for Soc. Just. 439 (Fall/Winter 2005).
2 Redmond v. Moore, 151 Wn.2d 664, 91 P.3d 875 (2004).
3 Calls by the author to municipal and district courts, April 6, 2007.
4 Calls by the author to collection agency, Fall 2006.
5 Costs & Benefits of the King County District Court Relicensing Program, Christopher Murray & Associates, 2004 (on file with author).
6 Andrew Garber, “Seattle Blacks Twice as Likely to Get Tickets,” The Seattle Times, June 14, 2000, corrected August 3, 2001.
7 Call by the author to Sergeant Monica Hunter, Washington State Patrol Office of Government and Media Relations, May 25, 2007.
8 “Settlement reached in debtor’s prison challenge,” The Times Picayune, October 16, 2007.
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