Who should get my vote? What do the Supreme Court decisions on charter schools/I-1366/K-12 funding mean? Is it true that courts can incarcerate a homeless person for being poor?
As lawyers and members of the legal community, we are often called upon to demonstrate specialized knowledge about judicial elections, court decisions and our criminal justice system. I always feel like my answers to these questions should be well considered and balanced, and include a recommended course of action. Yet, we are busy with our careers, our specific practice areas, our clients, our communities and our families.
I used to read the advance sheets every week; now, I skim for issues directly related to my practice area because I’m reading books with a first-grader about dragons who love eating tacos. Staying on top of emerging legal trends -especially outside of my practice area -requires some discipline. Catching up with family and friends over the holiday season often means questions, posts and tweets about legal current events. The media march to the 2016 election, recent noteworthy U.S. and state Supreme Court decisions, and recent statewide elections have fueled the fervor as people rush to offer analysis and predict outcomes.
The KCBA Bench Bar Conference helps me formulate thoughtful positions on public policy issues and trends emerging in the legal community.1 The legal community is a thought-leader in the area of criminal justice, and specifically in helping to identify and remove systemic barriers that hinder or prevent individuals from moving out of the shadow of incarceration.
This year the panel addressing Legal Financial Obligations (LFOs)2 helped me better appreciate their nuances and complexities.3 Sure, I had heard the phrase “modern debtors’ prison” and understood that KCBA’s Public Policy Committee was studying LFOs. A few years ago, the KCBA trustees discussed a bill (now law) that would reinstate the right to vote for individuals who were no longer under the supervision of the Department of Corrections, but before their LFOs were fully paid. I went into the panel discussion understanding that we needed to continue to identify ways to improve policies and procedures to prevent LFOs from perpetuating and criminalizing poverty. I left the forum armed with specific policy recommendations and compelling examples to support change.
A few points from the panel really struck me. According to one panelist, a recent ACLU investigation discovered that approximately 20 percent of those incarcerated in one county jail were there because of an outstanding LFO. The same investigation noted that some courts rarely conducted an individualized hearing to determine whether a failure to pay was willful. These findings lie in sharp contrast to the U.S. Supreme Court decision holding it unconstitutional to jail a defendant for failing to pay an LFO unless that failure to pay is willful.4
Likewise, the Washington Constitution provides, “There shall be no imprisonment for debt, except in cases of absconding debtors.”5 The Washington Supreme Court issued a decision on March 12, 2015, remanding two cases to the trial court to hold new sentencing hearings to include an individualized hearing to determine a defendant’s ability to pay before the imposition of discretionary LFOs.6
I further understood from the panel that the policies and procedures followed by the courts in King County are structured to avoid incarceration on grounds that someone is poor or unable to pay a debt. In contrast, other counties implemented an “auto-jail” procedure that seemed to default to sending people to jail for failure to pay an LFO. Once in jail, the individual was unable to work to pay off an LFO and was subjected to additional discretionary LFOs that could include charges for the time spent in jail, charges and fees for the issuance of an arrest warrant, and charges for court collection fees. As one panelist described, the entities (law enforcement, clerk’s office, courts) seemed almost incentivized to incarcerate as a means to generate revenue. The irony here is clear: The cost to collect on these LFOs would likely exceed the amount of the LFOs.
The panel discussed proposals to break the cycle of criminalizing poverty. The recommendations included: (1) bringing statewide clarity to a number of definitions, including “willful failure to pay,” “indigent,” and “manifest hardship;” (2) giving judges more latitude to waive discretionary LFOs; and (3) lowering the current interest rate (12%) and clarifying that interest should not run until after a defendant leaves incarceration. Panelists emphasized that restitution and payments to a criminal victims’ fund should not be waived and, in fact, such payments should be prioritized.
I left the Bench Bar Conference energized and ready to engage in meaningful discussions about how the legal community can continue to remove systemic barriers that prevent individuals from breaking the cycle of poverty, to continue to shine a light on the real problems of racial disparity, and to decriminalize being poor.
Kim Tran is the president of the King County Bar Association. She is in-house counsel with Microsoft’s Global Employment and Migration Law Group. She can be reached at 425-705-7609 or firstname.lastname@example.org. The views expressed in this column are her own and not of her employer, Microsoft.
1 KCBA Executive Director Andy Prazuch describes the annual Bench Bar Conference as follows: “Most King County Bar Association CLE programs are organized around very specific areas of practice: family law, probate, arbitration, aviation, employment and labor law, etc. While those targeted sessions are well received, they are understandably attended by lawyers and judges who focus primarily in those areas. What’s missing from that approach is the ability of attorneys and judges to check-in about the legal system more broadly, to talk with judges about the issues facing our courts, get to know practitioners in many different areas of law, and to engage in policy discussions about law-related topics of significance to the bar and bench.”
2 LFOs are the fines, fees and restitution amounts the court imposes at sentencing. See, e.g., RCW 9.94A.030, .550 and .760; RCW 7.68.035. LFOs can include restitution, a victims penalty assessment, court-appointed attorneys’ fees, costs of defense, collection costs, arrest warrant costs and other costs.
3 “Plenary 3: Modern Debtors’ Prison -Legal Financial Obligations, State of Washington v. Blazina.” Panel members included: Hon. Theresa Doyle, King County Superior Court; Prachi Dave, ACLU of Washington; and Nicholas Allen, Columbia Legal Services. It was moderated by KCBA First Vice President Kathryn Battuello.
4 Bearden v. Georgia, 461 U.S. 660 (1983).
5 See WA Const. Art. 1, 17.
6 Blazina v State, Nos. 89028–5, 89109–5 (March 12, 2015).