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. In fact, court costs have been a particular area of legislative focus here over the past half-decade. As I described in a prior post, G.S. 7A-304 was amended in 2011 so that costs apply by default even in active punishment cases (previously, no costs were assessed in active cases unless the judge specifically said so), and to require a judge to make a written finding of “just cause” before waiving costs. S.L. 2011-145. In 2012 the law was changed again to require “findings of fact and conclusions of law” in support of that finding. S.L. 2012-142.
Since 2011, the Administrative Office of the Courts has been required to maintain a record of all cases in which criminal costs are waived. That record was the subject of a recent article in North Carolina Lawyers Weekly entitled “A Costly Business”, written by Phillip Bantz and available here for subscribers. The report showed that waiver rates vary a lot from county to county, with Robeson and Wake showing “the most dramatic discrepancy.” Robeson judges waived costs 4,284 times between July 2012 and June 2013. Wake judges waived costs 274 times during the same period–in a county with a population eight times larger. It’s a thought-provoking article, and the judges and court officials quoted do a good job of articulating their different points of view on the issue.
Next year’s report on cost waivers promises to be even more interesting. The General Assembly sharpened the reporting requirement to require that the report “aggregate the waivers by the district in which the waiver or waivers were granted and by the name of each judge granting a waiver or waivers.” S.L. 2014-100, section 18B.2. So, we will get an even more granular look at what is being waived where and by whom.
With that in mind, I recently spent some time talking with a group of court officials about what “costs” are actually covered by the waiver reporting requirement. My sense is that the words “costs” and “moneys” are sometimes used in a general way that doesn’t reflect all the different legal rules applicable to a particular type of monetary obligation, be it a true cost, some other fee, a fine, or restitution. For example, laboratory fees still get improperly styled as restitution even though they were recategorized as a court cost in 2002. S.L. 2002-126, section 29A.8 (amending G.S. 7A-304 and repealing G.S. 90-95.3(b)).
My view—which I believe to be in line with that of the Administrative Office of the Courts—is that the just-cause finding requirement of G.S. 7A-304(a) applies only to the core set of court costs set out in G.S. 7A-304, including those incorporated into that section by reference. The statute says “the following costs shall be assessed and collected,” except when “costs assessed under this section” are waived. G.S. 7A-304(a). Other monetary obligations, like probation supervision fees, electronic monitoring fees, and attorney fees, have their own waiver or reduction provisions that do not require the court to make the same type of finding. Each category of obligation is also governed by different rules concerning what the court may do in response to noncompliance, including the ability to enforce the obligation as a civil judgment against the defendant.
For a recent teaching session, I created a chart intended to summarize these distinctions. It is available here. Only those costs listed on page 2 are covered under the just-cause finding requirement of G.S. 7A-304(a).
Many of my clients are surprised that court costs are actually higher then my fee in traffic matters. When the State faced a budget shortfall, this last time, you saw many of the court costs increase a lot.
Regarding “waivers” of costs. One of the most controversial is the “installment” fee required when a matter is not paid the day it’s resolved. I suspect in my county, Cumberland, the high number of waivers was due to our District Court judges being nice enough to allow attorneys to pay our client’s costs a few days later. This allowed us enough time to process our cases and write or cut checks. Furthermore, it took pressure off the Clerks from having to immediatley update the citations and the cashiers rushing to process all our trust account checks.
Of course the main issue I have is I believe most costs are not used to support our courts…whose budget continues to get reduced…all the while costs are increased and collected by the courts!
“…a population that is mostly poor”
I think that is a key phrase here. A thinking point, that maybe our legislators could take up, if an offender is unemployed, and/or there are findings that the offender is eligible for court appointed counsel, that these may make the offender eligible to have court costs, probation fees, etc, made a civil judgment, or defer them until such time they are financially self sufficient. Too many times offenders are returned to court for non-payment, when in fact, they are barely surviving themselves, let alone add in court ordered monies.
For an academic analysis of this national trend and a policy proposal for sentencing commissions to inventory and rationalize fees and costs, see “Mercenary Criminal Justice,” published October 2014 at http://illinoislawreview.org/wp-content/ilr-content/articles/2014/4/Wright.pdf.