June 2018 Bar Bulletin
By Judge Theresa Doyle
In the last session, the Washington Legislature passed legal financial obligation (LFO) reform legislation that should end the odious practices of jailing the poor for failing to pay LFOs they cannot afford and local governments using LFOs to fund trial courts — practices for which Ferguson, Missouri, is now (in)famous. But the question remains: Will the state step up and fill the funding gap?
Engrossed Second Substitute House Bill 1783, which becomes effective June 7, does the following:
• Prohibits imposition of costs on indigents, defined as persons receiving certain types of public assistance or with an annual income of 125 percent or less of the federal poverty level or those involuntarily committed to a mental health facility;
• Prohibits incarceration or other enforcement sanctions on the indigent, who are presumed unable to pay, unless the presumption is rebutted;
• Bars sanctioning the homeless and mentally ill for failure to pay;
• Prospectively eliminates interest on non-restitution LFOs and requires waiver of existing non-restitution interest upon motion of the defendant;
• Prioritizes payment of restitution to victims who are not insurance companies;
• Requires payment plans for indigents;
• Authorizes conversion of discretionary costs to community service upon a showing of manifest hardship, and allows for conversion of other LFOs to community service; and
• Prohibits successive imposition of the DNA fee ($100) if the person’s DNA is already in the State’s database.
Retaining their mandatory nature are: restitution in Superior Court, absent extraordinary circumstances; the $500 victim penalty assessment (VPA) in Superior Court; and the $250 VPA in limited jurisdiction courts. Where the defendant is indigent, costs and certain other discretionary LFOs must now be waived.
Historically, some judges defended imposing discretionary LFOs on the poor “for their own good” or “to hold them accountable.” Others say it provides deterrence from committing future crimes by reminding the defendant, in every payment made, of the costs of having offended. This is a “wages of sin” argument. Another explanation offered is that LFOs act as a sort of forced expression of remorse over committing a crime. Some judges simply impose LFOs as additional punishment.
Such moralizing justifications ignore two key factors. First, the deleterious effects of court debt on the poor are substantial and unnecessary obstacles to reentry. High LFO debt that a person can never pay off can ruin credit and hence any ability to secure housing or a job, and lead to jail for failure to pay. Many people dragging this ball and chain just give up; some return to crime.
Second, the reality is that a having a conviction means lifetime punishment because of its negative effects on getting a job, housing, credit, government benefits, student loans and more. The conviction itself can consign a person to a permanent underclass, and this is more than adequate punishment in many cases. At a certain point, the person has suffered enough.
As for Ferguson and trial court funding with LFOs, this is the elephant in the room. LFO revenue helps fund many trial courts across the state, to varying degrees. Unsurprisingly, trial judges experience indirect, and sometimes direct, pressure from county and municipal governments to impose and collect LFOs.
It’s not unusual for judges who request additional court funding to be told to collect more in LFOs. This leads to trial courts balancing their budgets on the backs of the poor with LFO revenue. As a retiring District Court judge remarked recently: “During my tenure, I’ve broken even or made money every year.” In response, Judge Scott Ahfl, president of the Washington District and Municipal Court Judges Association, said, “We are not in the business to pay for ourselves, [w]e are here to dispense justice.”1
Indeed, many judges across the state supported the recent LFO reform bill. The Superior Court Judges Association (SCJA) made its passage a priority for the organization.
Some courts historically do not impose LFOs on indigents and don’t get pressured by local government to do so. King County Superior Court judges, for example, have long followed a de facto policy of imposing only mandatory LFOs unless the defendant has some financial means.
Approximately 90 percent of criminal defendants qualify for appointed counsel. We consider these defendants to be indigent. In King County Superior Court, LFOs are collected through the clerk’s office, and not enforced by jail time unless as a last resort for restitution when the defendant clearly has the ability to pay and the victim needs it.
The loss of revenue from LFOs for many trial courts is likely to be substantial. In Clallam County, according to the court administrator, the new LFO bill and appellate decisions consistent therewith will likely result in the loss of $880,000 through 2019.2
That’s a big problem because of woefully inadequate funding from the State for trial courts. Washington ranks near the bottom of the 50 states in state funding for trial court operations. The State sets aside less than 1 percent of its budget to fund courts, prosecution and indigent defense. Counties and cities provide approximately 90 percent of the total funding.
This unbalanced equation is traceable to the 1889 Washington Constitution that laid most of the burden on local government. The reason is that, at the time, many city and county governments were more established than the state government.
Tracing the money collected from LFOs and determining the fiscal costs of enforcement are the subjects of an LFO study under way. In 2016, the State, through the Minority and Justice Commission (MJC), received a Department of Justice grant to study all aspects of the LFO system. SCJA is interested particularly in whether courts are effectively self-funding, as well as the collection and enforcement costs associated with the various types of LFOs. The results of the study may help inform any future LFO reform bills that may be introduced in the next legislative session.
1 “Judge halts pay or appear: New state law to impact finances in Clallam, Jefferson counties,” Peninsula Daily News, April 23, 2018: https://www.peninsuladailynews.com/news/judge-halts-pay-or-appear-new-state-law-to-impact-finances-in-