Serving Time for an Unpaid Fine or Costs When Time Has Already Been Served

If a defendant has fully served a term of imprisonment, can he or she be further imprisoned for not paying a fine or costs?

Under G.S. 15A-1362(c), when a defendant is ordered, other than as a condition of probation, to pay a fine, costs, or both, the court may impose at the same time a sentence to be served in the event that the fine is not paid. A different provision in G.S. 15A-1364(b) that says if a person defaults in the payment of fines or costs, and cannot show that the nonpayment was attributable to a good faith inability to pay, then the court may order the suspended sentence activated. The statute goes on to say that if the law provides no term of imprisonment or if no suspended sentence was imposed, the court may order the defendant imprisoned for a term not to exceed 30 days.

That provision was primarily intended as an enforcement mechanism for defendants who received a fine-only sentence. If it feels a little like the punishment for contempt, that’s probably because the Fines article was enacted in 1977, contemporaneous with—actually, in the very same bill as—Chapter 5A, Contempt. S.L. 1977-711.

But what about defendants who have already served an active sentence—either an active sentence imposed after sentencing, or an active sentence already served through application of pretrial jail credit? Can they, too, be punished—in a contempt-like way—by an additional term not to exceed 30 days for their failure to abide by the court’s assessment of a fine or costs? Some courts apparently have a practice of show-causing defendants who fail to pay their money, arresting them if they fail to appear for the show-cause hearing, and then further imprisoning them for up to 30 days upon a finding of nonpayment.

That’s a strange application of the Fines article in several ways.

First, it’s not clear that the 30-day gap-filler provision for non-payment applies at all when the defendant has already served an active sentence. G.S. 15A-1364 says the 30-day provision kicks in when there is no suspended sentence or when “the law provides no term of imprisonment for the offense.” The official commentary to that statute says that the appropriate punishment for nonpayment is “for the period specified in the suspended sentence,” and that “[i]f there is no suspended sentence, it is an automatic 30 day jail term.” There is no mention of an active sentence, but I think that’s because there was a background assumption that any defendant who served one wouldn’t be further imprisoned on account of the fine. In fact, the official commentary to G.S. 15A-1365 also indicates that the law was written with a background assumption that any defendant would have “an election to serve a term of imprisonment rather than pay a fine”—not do both.

Second, applying the law in a way that increases a person’s overall sentence exposure based on nonpayment of a monetary obligation is constitutionally suspect without careful consideration of the defendant’s ability to pay. In Williams v. Illinois the Supreme Court held that it violates the Equal Protection Clause to increase a defendant’s statutory maximum sentence based on his or her inability to pay a fine or court costs. 399 U.S. 235, 243 (1970) (“A statute permitting a sentence of both imprisonment and fine cannot be parlayed into a longer term of imprisonment than is fixed by the statute since to do so would be to accomplish indirectly as to an indigent that which cannot be done directly.”).

Finally, even if the Williams concern could be addressed by consideration of a defendant’s ability to pay at the show-cause hearing, it still seems like you run into a statutory maximum sentence problem. It’s hard to conceptualize the additional 30 days as a sort of standalone contempt, attributable not to the underlying offense of conviction, but rather to the defendant’s subsequent disobedience of the court’s order to pay. Even in probation-land, contempt days ordered in response to a violation of probation count for credit against the defendant’s suspended sentence. State v. Belcher, 173 N.C. App. 620 (2005).