At What Cost: RI has legislation limiting court fees and the courts largely ignore it

What crime do you think is most likely to land you in jail in Rhode Island? Murder? Jaywalking? If you guessed court debt, give yourself a gold star. The most common reason people go to jail in RI is because they couldn’t pay their court costs – not because their original crime merited jail time.
It’s a bit like a modern debtors prison, although the terms are shorter than the debtors prisons of yore. Most are incarcerated for a few days or a week, but roughly 17% of jailings are because of inability to pay court costs associated with a lesser offence. Of the many complicated ways in which income can affect legal outcomes – education about the system, the ability to consult more experienced attorneys, the ability to present oneself well in court – this has got to be the most direct. You are literally jailed for having less means than others.
“There is a clear racial disparity among inmates at the ACI. Income definitely has something to do with it as well.” Steve Brown of the RI Chapter of the ACLU, which has supported legislative reform to address these disparities, told us. “People of color as a whole tend to have less income, so they’re less able to hire their own attorneys,” he added, explaining why race and income are difficult to disentangle when examining statistics. “A study looking at traffic stops for drug possession found that people of color are stopped more and searched more, although the police don’t find anything more, on a proportional basis,” said Nick Horton of Open Doors. “There is significant racial and income disparity that is fundamental to our criminal justice system at every level. You see that in the data, and you see that anecdotally,” he added.
The ACLU recommends the adoption of racial impact statements to accompany proposed legislation that involve making any activities illegal. These statements would analyze the repercussions of a proposed law to see if it would impact different racial communities differently, and could call out potential problems early, allowing them to be corrected before legislation is passed. ”There are about a half dozen states that have adopted this,” says Brown. “If you don’t think about it in advance, it’s hard to correct it afterward.”
Our elected officials did attempt to address some causes of income disparities. In 2008, the state legislature passed a law applying a need-based sliding scale to court costs. S2234/H8093 became § 12-20-10, which includes several provisions to help those in financial difficulty and allows the court to remit court costs at the court’s discretion under a variety of hardship scenarios. These include cost consideration for a person’s ability to pay, accepting smaller amounts of bail for people picked up on warrants, reducing the maximum jail sentence for unpaid costs and providing alternative ways, beside incarceration, to enforce collection efforts.
Pretty forward thinking of RI, isn’t it? Go legislature! Except for two things.
First, the legislature also sets the costs in the first place. In RI, the court costs associated with the average felony are $300 per charge. In Connecticut, it’s $20 (2016 data). In Massachusetts, each case is capped at $500, even if there are multiple charges, whereas in RI they can just go up and up.
“We have pretty high court costs in this state, compared to the rest of New England. So we’re assessing poor people a lot of money that they can’t pay and then … we lock them up. Sometimes repeatedly for the same court fees,” Horton explains. These aren’t punitive fees we’re talking about, but rather the charges assessed by the court to cover the costs of court.
Second, a new study reveals that the court system may not actually be implementing the provisions of S2234/H8093. “There’s supposed to be a process for determining what a person can afford. The courts, as far as we can tell, just ignore that. Not all of them, but most of them,” Horton says.
In her thesis in Public Policy and American Institutions, titled Protecting vs. Policing: Indigent Defendants in Rhode Island’s Court Debt Collection Regime, Brown University student Rachel Black found that “During observation of 25 debt-related hearings across the 3rd and 6th District and Providence Superior courts, I did not witness any magistrate ask any defendant about any criteria for determining ability to pay that the legislature laid out in § 12-20-10.” Her 124-page thesis includes interviews with court personnel that “implies that, while Rhode Island judges are certainly aware of the legislature’s criteria, the Judiciary has not yet adopted a tool for magistrates to use that ensures uniformity … or includes any documentation or recording procedures.” Her report also states, “Once arrested, delinquent debtors were at risk of falling victim to an array of procedural injustices in the debt collection system, from a lack of police communication about the nature of their arrest to the denial of a phone call while in jail.”
It seems new processes are needed within the court system to bring the good intentions of the 2008 legislature to fruition.  •