The Cost of Crime

Patching Ohio’s leaky court-fine collections
By William Tinch(1)

A judge I clerked for in Franklin, Ohio, asked me to research an issue that has long frustrated city officials. Every week, people are summoned to court for various reasons. No matter the purpose, once judgment is levied, guilty parties are usually ordered to pay a fine and court costs at minimum. Reasonable people recognize that court orders are not optional.

Some people, however, do not pay and get away with it, and several factors make it extremely difficult to force them to reach for their wallets, according to the Ohio Revised Code (O.R.C.) and Ohio case law.  

In State v. Twitty,(2) Yolanda Twitty was incarcerated for not paying $271 in fines. Twitty touches on many issues implicated by O.R.C. § 2947.14.(3) It particularly focuses on “jail-time credit” toward satisfying various fines.(4) Section A of the statute defines what type of fine can be substituted for jail time. The referenced fine is only imposed as a sentence or part of a sentence; it does not include court costs. The Twitty court explained the difference in treatment.

The purposes of incarceration and the imposition of a fine are both to punish the offender. Therefore, it is logical to provide for the substitution of one for the other. The imposition of court costs is to reimburse the State for its expenses, not to punish the offender. Therefore, jail time is not a proper substitute for the payment of costs. Incarceration does not reduce or ameliorate the State’s expenses, but instead imposes an additional financial burden upon the State, in the form of the expenses of the additional incarceration.(5)

A magistrate can only order the offender to jail or workhouse(6) if he determines the offender has the “ability to pay,” but refuses.(7) Finally, the statute says that the hearing on whether the offender has the ability to pay “shall be conducted at the time of sentencing.”(8)

The Twitty court held that it is the trial court’s duty to keep “separate accounting of the court costs and fine amounts and payments, and to credit jail-time to the fine portion . . . [to satisfy any court costs] the trial court must rely upon methods of collection for civil judgments.”(9) Traditional collection methods for civil judgments vary—filing liens against real property, judicial orders to garnish wages or seize property, turning judgments over to collections agencies, etc.

So what does it mean to have the “ability to pay?” The offender has the right to counsel, testify, and present evidence of her ability to pay. If the magistrate finds that the offender has the ability to pay, he has to support his findings by facts in the judgment entry, which considers the offender’s income, assets, and debts, as presented by the offender.(10) This reliance on the offender’s testimony seems absurd; fortunately, a 2010 Ohio Supreme Court decision limited that reliance.

In State v. Plummer,(11) appellant Jeremy Plummer was indicted in five separate cases between October 2008 and March 2009, and on April 4, 2009, he entered five guilty pleas.(12) In May 2009, following a sentencing hearing and its review of a pre-sentence investigation (PSI) report, the trial court sentenced Plummer to 30 months in prison and ordered him to pay court costs and $8,560 in restitution.

The Plummer court discussed other ways to determine one’s ability to pay. The court emphasized that a trial court’s use of PSIs in making this determination can be quite useful, as PSIs often contain personal and financial information about the offender.(13) In Plummer’s case, the PSI did not detail his assets, but it did contain his age, education, family status, health, drug history, and prior employment.(14) Thus, the court derived Plummer’s ability to pay from several factors: he was 23 at his sentencing, he left school in 12th grade, he was in good health, and he had made $9-10 per hour. He would also be 26 upon his prison release. Nothing in the record indicated he would be unable to obtain work after his release.(15)   

The hearing process to determine one’s ability to pay is cumbersome. In State v. Swift,(16)  the appellant, Mark Swift, failed to appear at his first arraignment, and the trial court then issued several warrants for Swift’s arrest due to his continued non-payment of fines and court costs.(17) O.R.C. § 2947.14(C) requires that certain steps be taken before and after the offender’s incarceration for failure to pay a fine.

A full reading of the statute indicates that a hearing may be held at the initial sentencing, but is required only when a trial court decides to incarcerate the offender, according to the Swift court.(18) At the hearing, the offender may be represented by counsel and present evidence concerning his ability to pay the fine.(19) A court’s determination of the offender’s ability to pay must be based on evidence of his income, assets, and debt, “as presented by the offender.”(20) The court may issue an arrest warrant if the offender does not pay after the hearing. “The court must (emphasis added) then afford the offender another hearing ‘on the first regularly scheduled court day following the arrest,’ unless waived by the offender.”(21)     

Even if the court follows the cumbersome collection procedure, additional hurdles often exacerbate the situation. Franklin prosecutor Steve Runge summarized the problem: “If someone out of town is arrested and assessed fines and court costs but fails to pay them, it will often cause more time and money—on the part of the City—than the amount owed by the offender.”  

The sentencing court is left with two options: It can take an officer off his beat to retrieve the offender or it can ask the city in which the offender resides to get him. The sentencing court is reluctant to remove an officer from his beat to retrieve a non-paying offender because of the time and money involved. Complicating matters, the offender’s home city, which did not issue the citation, often does not wish to be involved for the same reasons.  

Typically, the statute of limitations passes, enabling the offender to avoid paying court costs and fines. To prevent this injustice, courts have to make a concerted effort to hold the initial hearing provided in the statute and to incorporate PSI reports in evaluating the offender’s ability to pay.

These actions will not absolutely guarantee collection of unpaid fines and court costs, but their implementation significantly increases that likelihood. Incarceration and enforcing civil judgments are expensive and tedious, but justice requires their implementation; otherwise, the double standard will persist, and court orders will only apply to conscientious citizens.  

NOTES:

(1) Tinch, Class of 2011, clerked for Franklin, Ohio, Municipal Court Judge
Rupert E. Ruppert in summer 2010.
(2) State v. Twitty, Montgomery App. No 23080, 2009-Ohio-5600.
(3) Hearing on ability to pay fine.
(4) Twitty at P 28.
(5) Id. at P 35.
(6) A house of correction.
(7) O.R.C. § 2947.14(A).
(8) Id.
(9) Twitty at P 36.  
(10) O.R.C. § 2947.14(B).  
(11) State v. Plummer, 2010-Ohio-849.
(12) Plummer at P 2, 3.
(13) Id. at P 33, 34.
(14) Id. at P 36.
(15) Id.  
(16) State v. Swift, Montgomery App. No 20543, 2005-Ohio-1595.
(17) Swift at P 1, 2, 3, 4, 5, 6.  
(18) Id. at P 17.
(19) Id. at P 19.  
(20) Id.  
(21) Id.