Reflections on Ferguson

By Judge Leslie Spornberger Jones
Municipal Court of Athens-Clarke County

The Ferguson Report was released by the US Department of Justice this past September.  While the report mainly focused on police practice and procedure, the report also looked at the practices of the Ferguson Municipal Court.  Essentially, the Report found Ferguson’s Municipal court was used by the city as a source of revenue generation, with little regard to justice and fairness.  There are a number of policy and legal reform recommendations, which has caused me to think about connections to Georgia and the Supreme Court case Bearden v. Georgia.
altDanny Bearden, who had only a ninth grade education and couldn’t read, pled guilty to burglary and theft by receiving stolen property on October 8, 1980. He was sentenced as a first offender to three total years on probation. As a condition of his probation, the trial court ordered Bearden to pay a $500 fine and $250 in restitution. Per the sentence, Bearden had to pay $100 on the day he was sentenced, $100 the next day, and then the balance within four months. His parents lent him $200 to make the first two payments.
A month later, he was laid off from his job. Although he searched repeatedly for work, he couldn’t find anything else. He had no income or assets . Just before he was due back to make the last payment in February 1981, Bearden let his probation officer know that he was not going to be able to make his payment on time because he couldn’t find a job.
In May 1981, the State moved to revoke his probation because he failed to pay the fine and restitution. After an evidentiary hearing, the trial court revoked the entire balance of his probation for failure to pay, and he was sentenced to serve the remaining time in prison.
When it considered Bearden v. Georgia in 1983, the United States Supreme Court stated that it granted certiorari in Bearden’s case “to resolve this important issue in the administration of criminal justice.” Bearden, at 664. Working from the principle that “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has,” the Supreme Court held in Bearden that “in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay.” Griffin v. Illinois, 351 US 12, 19 (1956) (as quoted in Bearden at 664) and Bearden, at 673 (emphasis added).
But the Supreme Court also stated in Bearden its holding did not apply in cases where a defendant “with the means to pay a fine …refuses or neglects to do so.” Bearden, at 668.
For many judges, the struggle is determining when a defendant genuinely cannot pay a fine because of indigence, and when the defendant has just chosen not to pay the fine at all. The difficulty in making this determination is complicated by a court’s truth seeking function. Many judges wonder if the information they are receiving from defendants (and really anyone who appears before them) can be believed. Some judges see their role of determining ability to pay as a quest to ferret out whether a defendant has really tried at all to make good on the fine. They become interrogators looking to find the lie behind the defendant’s claim that he or she cannot pay, rather than judges fairly and impartially reviewing information and evidence. In some instances, this quest has spawned abuses, the debasement of justice, and potentially cruel treatment of defendants. Right now, we see reports of these twisted approaches to Bearden on a daily basis.
When courts do have a valid means of reviewing a defendant’s income and expenses, they often do not have much guidance on how to interpret and understand such information. Questions about defendants’ owning cell phones or using cable television come to mind. If a person is indigent, how can he or she afford a cell phone or cable? Should he or she have such “luxuries?” But really, who are we to judge what is truly a luxury in a person’s life? If a person is indigent, cable may be the most economical way for him or her to have entertainment in his or her life.
Bearden, like many of the Supreme Court’s criminal procedure opinions, is a case about human dignity. Its ultimate lesson is: how do we guarantee that a person who has committed a crime satisfies his or her debt to society after having been found in violation of the law without unjustly penalizing the person because poverty prevents the person from completing a portion of the sentence that other people of means could complete?
Punishment should not necessarily be designed just to punish, but should also be designed to deter and rehabilitate. With low level offenses, particularly traffic offenses, the determination of just punishment has, in many jurisdictions, unfortunately become a mechanical process of referring solely to a rigid fine schedule and imposing the same fine for everyone, regardless of the factual and legal circumstances, not to mention justice and societal considerations. In the worst abuses, fine schedules have become a way to raise revenue for cash strapped governments. But, under such a system, what if a person can’t pay a fine? Although Bearden deals specifically with probation revocations, its message is clear: If a person says he or she can’t pay, the court has to determine their ability to pay. If the person cannot pay, the court should determine a just alternative punishment.
A person punished in a court is paying a debt to society for a crime or offense he or she has committed. What punishment is truly appropriate for an 18 year old high school student with no prior offenses who appears on a red light violation, who claims that he went through the light when it was yellow, but it turned red as he went under the light? How about the same violation on the same facts with a retired 65 year old on social security who suffers from early-onset dementia and has only 1 prior traffic citation that occurred last year? Or, a 43 year old with the same violation and same facts who has 8 priors and works part-time after having been laid off 2 years ago? Rigid fine schedules fail to address the unique opportunities to do justice, rehabilitate, and deter the person from future violations in each of these cases.  
As judges, our goal should always be to seek justice in each case. Vested with discretion to determine what is right in each case, we do not have to restrict our determinations to rigid fine schedules, even schedules we have created. Each case, every circumstance, and all people who come before us are different; all require specific approaches. When a person is found in violation of the law, or has pled guilty, we should always attempt to understand what the real penalty—if any—should be in each case. Sometimes, a fine doesn’t really speak to a person. Maybe community service, reading a book and reporting back to the court, creating a presentation, making a poster or brochure, court observation, or some other reasonable alternative makes sense. Sometimes a combination of penalties is appropriate. Sometimes no penalty is required at all; the incident itself was enough to create a lasting impression on the person. Such determinations should be made at all times.
If, however, we are in a situation where a fine is appropriate, and the person before us cannot pay it, judicial patience is warranted. While it is important to see people comply with the court’s orders, it is not so important that we remedy noncompliance with injustice.

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