The Administrative Office of the Courts recently submitted two reports on criminal cost waivers to the General Assembly. The first report covers court cost waivers under G.S. 7A-304(a). The other is about costs remitted upon remand from superior court to district court under G.S. 15A-1431(h). Both reports sort waivers by district or county and by individual judge. Continue reading
Tag Archives: court costs
Being married to me is hard. My husband makes an off-hand comment about how the city must need money since the police are pulling people over left and right for speeding on the road he travels to work. What does he get in response? A lecture on the state’s uniform court system and the fines and forfeitures clause of our state constitution. Thankfully, he is a patient man. He took it so well that I thought I’d share the finer points of that discussion with you. Continue reading →
Earlier this year National Public Radio ran a series on court costs entitled Guilty and Charged. The general point of the series was that “the costs of the criminal justice system in the United States are paid increasingly by the defendants and offenders”—a population that is mostly poor. Missed payments often lead to more fees, interest, probation violations, and eventually incarceration.
North Carolina is no exception to the national trend. Continue reading →
Recent changes to G.S. 7A-304 (discussed in my previous post) make it more likely that a judge will impose court costs on a defendant who receives an active sentence. Costs now apply by default in active punishment cases, and they may only be waived upon written findings of just cause. Not surprisingly, a frequently asked question of late is how those court costs can be collected from a defendant who is headed directly to jail or prison.
One option is for the court to order the costs docketed as a civil judgment. Under G.S. 15A-1365 a judge may order a judgment docketed when a defendant has defaulted in payment of costs. The statute does not explicitly spell out a procedure for determining whether a defendant has defaulted, but undoubtedly some process is due. See Fuller v. Oregon, 417 U.S. 40 (1974); State v. Crews, 284 N.C. 427 (1974) (vacating a civil judgment ordered in a defendant’s absence without notice or hearing). There is some sense that the hearing procedure set out in G.S. 15A-1364, which allows the court to activate a suspended sentence or impose a contempt-like punishment for those who fail to pay fines or costs, also applies before a civil judgment is docketed. If that is the case, the court should give the defendant an opportunity to show that the default was not attributable to a “failure on his part to make a good faith effort to obtain the necessary funds for payment.” If the defendant does show a good faith inability to pay, the statute directs the court to (1) allow the defendant additional time to pay, (2) reduce the amount owed, or (3) remit the fine altogether. G.S. 15A-1364(c). For a defendant headed directly to jail or prison, that consideration will need to happen at sentencing.
G.S. 15A-1365 nudges the court away from a civil judgment in cases where the defendant winds up serving a period of imprisonment. Aside from drug trafficking and trafficking conspiracy cases, the law provides that the clerk may not issue a writ of execution on a civil judgment for costs if the defendant “elects to serve the suspended sentence, if any, or serve a term of 30 days, if no suspended sentence was imposed.” The official commentary on the law from the Criminal Code Commission says that provision was designed to give the defendant in any case an election to serve a term of imprisonment rather than pay the money owed. Does the statute also prohibit execution when a defendant has served (or is about to serve) an active sentence? Not literally, but bear in mind that the law was written at a time when costs were not typically imposed in active punishment cases. (The statute is also out of date to the extent that it references a defendant’s ability to elect to serve a suspended sentence; that option was repealed in 1995, as discussed here.) In any event, the defendant’s imprisonment does not preclude or extinguish the judgment; it just prevents it from being executed upon. Any judgment ordered would still stand as a lien on the defendant’s real property.
The docketing provisions of G.S. 15A-1365 apply only to court costs and fines. G.S. 15A-1361. A separate docketing provision, G.S. 15A-1340.38, applies to restitution ordered for defendants convicted of crimes covered under the Crime Victims’ Rights Act, G.S. 15A-830(a)(7). As discussed here, there is no authority to docket non-CVRA restitution. See State v. Scott, 723 S.E.2d 173 (N.C. Ct. App. Apr. 3, 2012) (unpublished). Yet another statutory provision, G.S. 7A-455, covers docketing of attorney fees.
Even within the costs category, there is some debate about what qualifies as a “cost” within the meaning of G.S. 15A-1365. At a minimum, a generic reference to “costs” includes all of the costs set out in G.S. 7A-304(a) (the General Court of Justice fee, lab fees, etc.) and those set out in other statutory sections but incorporated by reference through G.S. 7A-304(c) (e.g., witness fees and jail fees). The term costs can probably also be read to include other fees, such as probation supervision, community service, and electronic house arrest fees. See State v. Webb, 358 N.C. 92 (2004) (defining costs as “fees and charges required by law to be paid to the courts or some of their officers, the amount of which is fixed by statute or court rule,” and concluding based on that definition that the attorney appointment fee set out in G.S. 7A-455.1 is a cost within the meaning of Article I, Section 23 of the state constitution). Of course, those additional fees come up only in probationary sentences, and so they are not an issue for civil judgments imposed alongside active sentences. But if a judge is imposing a civil judgment for unpaid costs and fees upon revocation of probation and wishes to include those additional amounts, he or she should probably say so explicitly. They are not obviously included in a generic reference to “costs,” and many clerks will include only the G.S. 7A-304 amounts absent more specific direction from the court.
Finally, I should note that a civil judgment is not the only way costs and fines may be collected in active punishment cases. The court may also recommend that those amounts be collected through work release earnings (see G.S. 148-33.1(f)) or as a condition of post-release supervision (see G.S. 15A-1368.4(e) (3) and (e)(12)), the latter of which will await any felon who receives an active sentence for an offense committed on or after December 1, 2011.
Following up on Jeff’s post yesterday about court costs and traffic citations, today’s post is about a trial judge’s authority to waive court costs.
Under G.S. 7A-304, certain court costs “shall be assessed” in every criminal case where a defendant is convicted or enters a plea of guilty or nolo contendere. Under the pre-2011 version of that law, a trial court’s general authority to waive court costs was unclear, but the law explicitly provided that costs would only be assessed in active punishment cases when the judgment said so.
In the 2011 budget act, the General Assembly addressed the waiver issue, saying in amended G.S. 7A-304(a) that the trial court could not waive costs unless it made a written finding of just cause to grant such a waiver. S.L. 2011-145, sec 15.10.(a). That change was incorporated into the boilerplate criminal judgment forms from the Administrative Office of the Courts as a check box for indicating that “[t]he court finds just cause to waive costs.” The 2011 legislation also removed the special rule for active sentences, thereby bringing them within the rule applicable to all cases: no waiver of costs absent a finding of just cause. The change was made effective “July 1, 2011.” Id., sec. 32.6. Generally speaking, when the legislature changes cost provisions the court system applies the change to all costs assessed on or after the effective date, regardless of the offense date of the offense being sentenced. That interpretation does not run afoul of Ex Post Fact Clause because costs are not part of a defendant’s punishment. See State v. Arrington, __ N.C. App. __, 714 S.E.2d 777 (Aug. 16, 2011).
In 2012, the General Assembly gave even clearer direction about the findings required to waive court costs. The 2012 budget act, S.L. 2012-142, sec. 16.6(b), again amended G.S. 7A-304(a), this time to provide that costs could be waived “only upon entry of a written order, supported by findings of fact and conclusions of law, determining that there is just cause.” That change was effective July 2, 2012 upon the General Assembly’s override of the Governor’s veto of the budget. Forthcoming versions of the AOC forms will provide space for the court to record those findings of fact and conclusions of law.
The issue of cost waivers came up in a recent court of appeals case, State v. Patterson. In Patterson, the defendant was convicted of failing to register as a sex offender and sentenced to 22–27 months in prison. At sentencing, the court ordered the defendant to pay $1,954.50 in court costs, stating “I have no discretion but to charge court costs and I’ll impose that as a civil judgment.” Slip op. at 2. The defendant argued on appeal that the trial court erred when it said that it lacked discretion to waive the costs. For the reasons that follow, the court of appeals agreed and remanded for resentencing.
The first question the appellate court had to address is what version of G.S. 7A-304 should apply. The parties thought that the pre–July 1, 2011 version of the law should apply based on the defendant’s offense date (March 1, 2011). The court of appeals disagreed, saying that the case should have been governed by the law in effect on the date judgment was entered, August 17, 2011. Because the 2011 changes to the law were effective July 1, 2011, the new law should apply. (In other words, the court of appeals concurs with the AOC’s approach to the effective dates of costs changes, described above.)
That being the case, Mr. Patterson was not subject to the rule that active punishments are exempt from costs except when explicitly imposed. To the contrary, costs would apply to the case by default unless the judge waived them for good cause. However, to the extent that the trial judge’s comment indicated that he had “no discretion but to charge court costs,” it was in error, and so the case needed to be sent back for resentencing.
Patterson raises some other issues worth noting. First, the dollar amount of costs assessed ($1,954.50) was too high. There was no information in the record to support that amount, but the court of appeals noted that in any event it far exceeded the total amount permissible under G.S. 7A-304. (The defendant’s brief suggested that the amount may have included attorney fees, which should be assessed separately under G.S. 7A-455.) Finally, I noticed that the court said that amount would be imposed as a civil judgment. That’s an issue coming up more and more now that costs apply by default in active cases—where they cannot be collected as a condition of probation. I’ll say for now that docketing of costs is covered under G.S. 15A-1365, but it’s a complicated enough topic that I’ll save it for a future post.
Court costs support many different programs and purposes. The principal statute concerning court costs in criminal cases is G.S. 7A-304. (Under G.S. 15A-1118, these costs also apply to infraction cases.) G.S. 7A-304 establishes various court costs for the support of “courtroom(s) and related judicial facilities,” “courthouse phone systems,” “retirement and insurance benefits [for] . . . law-enforcement officers,” “operations of the Criminal Justice [and Sheriffs’]” training and standards commissions, “pretrial release services,” general support of the court system, and so on.
The state’s budget has been very tight in recent years, and the General Assembly has repeatedly increased existing court costs and created new ones. This AOC document summarizes current court costs. I’d like to focus on the costs associated with traffic infractions, for reasons that will become clear in a moment. Those costs currently total $188 for most cases. (They’re similar for other district court matters, and considerably higher for cases that move to superior court.) To put this in historical perspective, on July 1, 2011, motor vehicle infractions carried costs of $170. As of October 1, 2010, costs were $141. As of September 1, 2009, they were $130. As of July 20, 2008, they were $121. A year earlier, they were $120.
Of course, the true cost to a typical motorist of being cited for an infraction is not limited to court costs. The driver may also pay a lawyer, may miss time from work to attend court, may pay a fine, and may face higher insurance costs.
I heard recently that the number of traffic cases filed has decreased, which has been difficult for some of the organizations supported by criminal court costs. The chart below, based on AOC data, confirms the decline in infraction cases filed. (The vast majority of infraction cases involve motor vehicle offenses.)
One possible explanation for the decline is that some officers are reluctant to issue citations knowing that court costs are so high. In other words, some officers may be issuing more warnings and fewer citations based on a feeling that the cost of a citation has gotten out of proportion to the seriousness of a typical moving violation. There is, in fact, a temporal correlation between the run-up in court costs and the decline in infraction cases. However, correlation does not prove causation, and there are other possible explanations.
Drivers could be committing fewer offenses, either because they are driving less or because they are driving more carefully. I doubt that this is the case, however. Traffic volume has been about the same since 2009, according to the United States Department of Transportation, so people are not driving less. I suppose that it is possible that people are driving more carefully, but I haven’t noticed that in my time on the roads.
Officers could be detecting fewer offenses, perhaps because law enforcement agencies, faced with limited budgets, are doing less traffic enforcement. This strikes me as a more plausible explanation, supported somewhat by the fact that criminal motor vehicle case filings are also down, from a bit over 1.1 million in FY2010-11 to a bit under 1 million in FY2011-12. I doubt that many officers would choose to forego a criminal traffic violation out of concern for court costs, since criminal violations are typically more serious than infractions. The decline in filings of this type therefore suggests that officers may simply be detecting fewer violations.
Officers could be writing fewer citations for some other reason besides higher costs. For example, if the paperwork associated with writing a citation had recently become much more cumbersome, officers might be writing fewer citations to avoid the drudgery, or because so many hours were spent pushing paper and not enforcing the law. I’m not aware of any change of that nature, however.
Readers, what do you make of this data? Are there explanations that I’m missing? Officers, has the rise in court costs made you more hesitant to issue a citation?
As a final note, the data presented above don’t reach the separate question of whether judges are waiving costs more often as they have risen. That’s also an interesting question, but it will have to wait for a future post.
I’ve heard a few recurrent questions recently regarding the imposition upon a defendant’s conviction of a $600 fee for support of the State Bureau of Investigation or for law enforcement purposes of a local government unit that operates a crime laboratory.
First, is such a fee discretionary?
Second, does it apply if the SBI laboratory report is not introduced at trial?
Third, is there a fee that applies if the defendant fails to waive his confrontation rights and requires a laboratory analyst to testify at trial?
The answer to the first two questions is yes. The answer to question three is no.
The $600 fee is really a court cost authorized by G.S. 7A-304(a)(7) and (8), which state that the district court judge “shall,” upon conviction, order payment of $600 in certain cases for the services of the SBI lab or a local government crime lab that performs equivalent work.
The fee applies when the laboratories have performed DNA analysis of the crime or tests of the defendant’s bodily fluid for the presence of alcohol or a controlled substance as part of the investigation leading to the defendant’s condition. Despite use of the mandatory “shall,” the provisions go on to allow the court to “waive or reduce the amount of the payment upon a just cause to grant such a waiver or reduction.”
With the exception of the amount of the fee – which increased from $300 to $600 for offenses committed on or after September 1, 2009 – these statutory provisions have existed in their current form for several years. G.S. 7A-304(a)(7), which applies to SBI lab services, was enacted in 2002, and G.S. 7A-304(a)(8), the provision applicable to local crime labs, was enacted in 2005.
One reason why the fees may have been the focus of recent attention is the notion that they might not apply if a report of the laboratory analysis is not introduced in evidence at trial. The Supreme Court’s June 2009 opinion in Melendez-Diaz v. Massachusetts, discussed in this post, holding that that forensic laboratory reports are testimonial, rendering the affiants witnesses who are subject to the defendant’s right of confrontation under the Sixth Amendment, requires that the State produce a live witness to testify about the analysis, rather than simply introducing an affidavit. As a result, in some cases in which a laboratory analysis is performed, the resulting report is not admitted at trial due to the analyst’s absence from the proceeding. Some have questioned whether the $600 fee may properly be imposed in such a case upon the defendant’s conviction. Given that the statute requires only that the state demonstrate that the laboratory performed work as part of the investigation that led to the conviction, it is my view that the fee may properly be imposed in such a case, regardless of whether the analysis comprised part of the evidence at trial.
A related question is the third one posed at the outset of this post. As I’ve said, I don’t think the applicability of the fee in G.S. 7A-304(a)(7), and (8) hinges on whether the lab report is introduced at trial. Likewise, the fee may be imposed regardless of whether the analyst is subpoenaed for trial. Finally, there is no separate fee triggered by the subpoenaing of the analyst; the fee is triggered by a laboratory analysis, not by testimony.
Thanks to my colleague Jim Drennan for his input regarding this post and to you folks for raising the questions. Are there other questions circulating regarding the imposition of this fee? If so, please pass them along.