Today’s post considers when a court should—and sometimes must—evaluate a defendant’s ability to pay a monetary obligation in a criminal case. Continue reading
Tag Archives: fees
In my last post I wrote about some of the statutory options for providing relief from various criminal legal financial obligations. Several of my “friends” gave me a hard time about the post, saying the subject must be pretty complicated if I wasn’t able to compile it into some sort of table. Challenge accepted. Continue reading →
The U.S. Department of Justice recently issued a letter regarding its “strong interest” in putting a stop to unconstitutional court fines and fees that target the poor. According to the authors, Vanita Gupta, Principal Deputy Assistant Attorney General of the Civil Rights Department, and Lisa Foster, Director of the Office for Access to Justice, “[T]he harm caused by unlawful practices . . . can be profound. Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no danger to the community; lose their jobs; and become trapped in cycles of poverty that can be nearly impossible to escape.” The DOJ sent the letter to judges and court administrators in all fifty states on March 14, 2016, directing them to review their procedures on imposing and enforcing fines and fees. An article from the New York Times states that the DOJ rarely issues “Dear colleague” letters of this sort; the last one went out in 2010 and concerned the need to provide interpreters for people who don’t speak English. Continue reading →
May community service fees be waived? I suspect some of you are thinking “I hope so, because they just were,” or something along those lines. It turns out to be a tricky question, I think.
First, let me be clear about what I mean by community service. I’m talking about community service ordered as a condition of probation, either as a special condition of probation under G.S. 15A-1343(b1)(6) or a community and intermediate condition of probation under G.S. 15A-1343(a1)(2). Those two conditions are essentially the same, and both require the probationer to perform community service and pay the fee required by law for it. (When the community and intermediate community service condition was initially added to the law in 2011, it did not include any reference to the fee, but an amendment in 2012—discussed here—added one.)
Community service ordered as a condition of probation, supervised or unsupervised, generally falls under the Community Service program described in G.S. 143B-708. (There is a background question about whether a judge may order community service outside the program, but let’s leave that aside for now.) Community service through the program requires the defendant to pay a fee of $250. Under G.S. 143B-708(c), that fee “shall be paid by all persons who participate in the program or receive services from the program staff.” Only one fee is required for each “sentencing transaction,” defined as all offenses considered and adjudicated during the same term of court.
In general, a person must pay the fee in full before participating in the community service program. A small exception is that the court in which the person is convicted may give the person of extension of time to pay or allow the service to begin before payment. G.S. 143B-708(c). (Prosecutors have similar authority for community service ordered in deferral cases, and probation officers have similar authority when the service was ordered through delegated authority.) Aside from that, the statute makes no mention of any authority to waive the fee.
The absence of any reference to a waiver is noteworthy. Court costs generally may be waived for just cause under G.S. 7A-304(a) (as discussed here)—but the community service fee is not set out in G.S. 7A-304, or incorporated into it by reference. Probation supervision fees may be waived “for good cause and upon motion of the person placed on supervised probation.” G.S. 15A-1343(c1). For electronic house arrest, the court “may exempt a person from paying the fees only for good cause and upon motion of the person.” G.S. 15A-1343(c2). For attorney fees, the court has express authority to order a defendant to pay “a portion, but not all, of the value of the legal services rendered” if, in the court’s opinion, that is what the person is financially able to pay. G.S. 7A-455(a). So, the legislature certainly knows how to include waiver or exemption provision when it wants to.
On the other hand, the legislature also knows how to say expressly that a fee may not be waived. Under G.S. 7A-455.1(b), the $60 attorney appointment fee is “mandatory” and “may not be remitted or revoked by the court.” I suppose the community service fee isn’t stated as mandatorily as that. But it does use the word shall. And the court of appeals has described such fees as a “non-discretionary byproduct of the sentence.” State v. Arrington, __ N.C. App. __, 714 S.E.2d 777 (2011); see also In re Greene, 297 N.C. 305 (1979) (holding that a judge does not have inherent power to continue prayer for judgment in a case when a certain punishment is made mandatory).
Be that as it may, the fee gets waived with some frequency. I imagine that may have something to do with its growth over time. When first enacted in 1984 the fee was $50. It grew to $100 in 1986, $200 in 2002, $225 in 2009, and $250 in 2010.
Even if it may not be waived on the front end, there may be support for a later remission of the fee. Under G.S. 15A-1363 a defendant may “at any time” petition the court for remission of a “cost” or any unpaid portion of it. The court of appeals has interpreted “cost” in that context 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.” State v. Webb, 358 N.C. 92 (2004). Along the same lines, any alleged probation violation tied to a failure to pay the fee might be defensible on the grounds that the defendant had a good faith inability to pay. If the defendant showed that to be the case, the judge would have authority at that point under G.S. 15A-1364(c) to reduce or remit the fee.
Under G.S. 15A-1343(c1), defendants placed on supervised probation must pay a monthly supervision fee of $30, unless exempted by the court. That exemption may only be granted for good cause upon motion of the defendant.
Over the past month or so I’ve received many calls from people who have heard that legislation from the past session removed the court’s authority to exempt probationers from the fee. There were lots of changes to probation, and lots of changes to fees, but as far as I know there were no changes to a judge’s authority to waive probation supervision fees.
After consulting with AOC I have a few theories about what might be causing the confusion. First, a provision in the appropriations act (S.L. 2009-451, section 15.17I(a)) made the following changes (underlined) to G.S. 7A-455.1, clearly stating that a judge may not remit the $50 fee for appointment of counsel:
(b) The mandatory fifty-dollar ($50.00) fee may not be remitted or revoked by the court and shall be added to any amounts the court determines to be owed for the value of legal services rendered to the defendant and shall be collected in the same manner as attorneys’ fees are collected for such representation.
That’s strong language, but it applies only to that particular appointment fee, not to supervision fees.
Second, legislation in 2008 amended the law applicable to probationers supervised under the Interstate Compact for Adult Offender Supervision (G.S. 148-65.7) to say that North Carolina’s compact commissioner (or the commissioner’s designee) is the waiver authority for Compact-related fees. That includes the $150 transfer application fee that North Carolina offenders must pay to transfer supervision to another state and the $30 monthly supervision fee that offenders convicted in other states pay when supervised here. Several judges have asked me whether they can waive either of those fees, and my answer is that it appears as though they can’t. But again, this limitation on a judge’s fee-waiver authority is limited to this particular context and doesn’t affect their ability to waive ordinary supervision fees.
Finally, there’s a provision in the main probation reform bill, S.L. 2009-372, that says probationers for whom a period of probation is tolled based on a new charge “shall remain subject to the conditions of probation, including supervision fees, during the tolled period.” I don’t read the “shall” in that provision to mean a person must pay fees during a tolled period even if a judge has previously waived the fee. Rather, I interpret it to mean whatever probation conditions a person has, including supervision fees if not exempted, continue unabated during a tolled period.
Those are my best guesses. If you know of something I’m missing or have other ideas about what might be causing the confusion, please leave a comment. I’ll be embarrassed if someone points out something I overlooked, but I’ll get over it. The important thing is getting the proper information out to the field.