Municipal Courts Use Legal "Loopholes" to Keep Debtors' Prisons Alive and Well

Municipal courts create debtors' prisons by using jail or the threat of jail to collect debts from the poor.
In 2014, the legislature passed HB-1061 with near-unanimous bipartisan support, acting to end debtors' prisons in Colorado and ensure that no one ever be incarcerated for failure to pay court debts they are too poor to pay.

Municipal courts skirt the law by issuing arrest warrants for defendants who fail to pay as scheduled.
HB 14-1061 prohibited courts from issuing arrest warrants for failure to pay fines. District and county courts have followed the law, but municipal courts have found a loophole to continue jailing impoverished debtors. Many municipal courts now issue warrants for “failure to appear” (FTA warrants) as frequently and to serve the same function as the “failure to pay” warrants that were prohibited by HB 14-1061—with the same unconstitutional effect of jailing impoverished individuals who lack the means to pay court fines or fees. Courts accomplish this by making every payment date under an installment plan a mandatory court appearance. These court appearances are shams – designed only to allow municipal courts to issue a warrant for the defendant’s arrest if the defendant does not pay the fines due.

Municipal courts have ignored the due process protections required by HB 14-1061.
For defendants accused of failure to pay, HB 14-1061 specifically required notice that a person will not be incarcerated for inability to pay, a hearing on the issue of ability to pay, and a finding on the record of willful failure to pay prior to incarceration. Municipal courts across the state have either ignored these requirements or taken myriad judicial shortcuts to avoid the requirements of the law.

DEBTORS' PRISONS REMAIN A SERIOUS PROBLEM FOR COLORADO
Debtors' prisons are illegal. Decades ago, the Supreme Court ruled that jailing people for inability to pay a fine violates both the Equal Protection and Due Process Clauses of the United States Constitution.

Debtors' prisons punish the poor for being poor. Debtor’s prisons create a two-tiered system of justice in which poor people who cannot afford legal debts are jailed repeatedly, while those with means simply pay their fines and move on with their lives.

Debtors' prisons lock people up who pose no danger to the community. Jail should be used to protect the public, never to collect a debt. Being poor is not a crime.

Debtors' prisons are fiscally irresponsible. Jailing poor people does nothing to get a debt paid. It costs more for cities to issue warrants, hold court appearances, and jail indigent debtors than can ever hope to be recovered.

Municipal courts stand alone in their refusal to abandon debtors' prison practices. Colorado’s district and county courts, as well as the City and County of Denver, do not use or threaten jail to collect debts from poor people – it is time for municipal courts to join Colorado’s other courts in abandoning debtor’s prison practices.

WHY HB 16-1311 IS THE SOLUTION
It closes the loopholes in the current law by prohibiting a court from jailing a defendant when the defendant’s only remaining obligation is money owed to the court, except when a defendant willfully failed to pay.

It strengthens the current law’s notice requirements, defines ability to pay, and clarifies that a court may jail a person for failure to pay only through contempt of court proceedings in which appropriate due process protections are provided to indigent debtors.

CURRENT DEBTORS' PRISON PRACTICES IN COLORADO MUNICIPAL COURTS
The following are examples of debtors' prison practices by municipal courts in Colorado that post-date the May 9, 2014 effective date of HB 14-1061.

• Until recent intervention by the ACLU, the Colorado Springs Municipal Court was illegally jailing impoverished defendants when they were unable to pay court-ordered fines. Between January 2014 and October 2015, the City court illegally converted more than 800 sentences of fines into jail time when defendants were too poor to pay. In those cases, the defendants were ordered to “serve out” their fines in jail at a credit of $50 per day. One homeless individual was fined over $4500 for peacefully displaying a sign asking passersby for charity, and he spent over 90 days in jail to “pay off” these fines.

• Many municipal courts assess $50 to $100 in fees for “Failure to Appear” when a defendant misses a scheduled payment, often causing fees to mushroom and cases to drag on for years for poor defendants convicted of minor violations. The Aurora Municipal Court, for instance, sentenced indigent defendant James Fisher to a total of $703 in fines in 2012 for three municipal violations – two for open container and one for driving without proof of insurance. Over the course of the last four years, because Mr. Fisher has missed some of his monthly payment dates, he has been arrested three times and the Municipal Court has assessed a total of $1575 in additional fees. To date, Mr. Fisher has dutifully paid almost $1500 to the Aurora Municipal Court – more than double the amount of his original fines – but he still owes $860 and faces an outstanding warrant for his arrest, all because he is poor.

• Many municipal courts use bonds on FTA warrants for failure to pay solely as a debt collection tool, rather than as a method to secure a defendant’s appearance in court. Bonds in many municipalities are often set at the amount owed by the defendant so that the court can snatch the bond once paid and keep it to pay off the defendant’s fines. These bonds can function like a ransom – enlisting friends and families to pay the amount due, so that the defendant can get out of jail. In the words of a Wheat Ridge Municipal Judge on May 6, 2015: “We’ll take anybody’s money, so you can send someone.”

• Some municipal judges illegally threaten jail if defendants fail to pay, even if the judge knows the defendant is too poor to pay. At the Alamosa Municipal Court on January 26, 2015, for example, the judge warned a homeless, jobless defendant: “Now you have $270 in fines and costs, and if you’ve lost your job and are now homeless, how are you going to come up with that money? It’s going to be hard. But if you don’t pay that then I’m going to impose those 15 days in jail.”

• Judges threaten incarceration without giving notice to defendants of their right to a hearing on the issue of ability to pay. At the Wheat Ridge Municipal Court on August 27, 2014, the Judge said to a homeless man: “You know you’ve got a fine to pay, and all I can tell you is you better go get a job and [chuckles] pay it, because if you don’t then you get incarcerated.”

• Judges make inappropriate assumptions about ability to pay. For example, at the Alamosa Municipal Court on October 13, 2014, a juvenile defendant was chastised when she was late to begin community service. The judge threatened to incarcerate her parents, who couldn’t afford the program enrollment fee. After the hearing, the judge commented regarding the juvenile defendant’s mother: “She has some really nice gold earrings, if she shows up in court with those again, she doesn’t know this but that is evidence to me of ability to pay. They look real nice, but my question is going to be ‘Did you try to pawn those earrings?’ When the answer is no, that’s ability to pay.”

3/15/16
DENVER – Tonight, the Douglas County School District will consider a second school voucher program that would divert public taxpayer dollars to secular, private schools inside and outside of the district.  Last June, the Colorado Supreme Court ruled that the district’s original voucher program was unconstitutional because it diverted public money to private, religious schools.

“The American Civil Liberties Union of Colorado opposes the redirection of taxpayer money to private schools, secular or religious.
“The energy, time, and money that is being spent to devise a voucher system in Douglas County that would benefit only a small handful of students and private schools, at the expense of all others, should be devoted instead to improving educational opportunities for everyone in the district.
“The goals of quality education and equal opportunity for all children, regardless of race, religion, or economic status, can be achieved only by investing in and improving public education, not by abandoning it.”
See also, ACLU, Americans United Applaud Colorado Supreme Court Decision Striking Down Voucher Program Funding Religious Schools

Denver's recent "sweeps" of people experiencing homelessness are a sad reminder of how inhumanely many Colorado cities treat those among us who already face challenging circumstances. The criminalization of homelessness never rests, and people who are homeless almost never get any peaceful rest as a result. Unhoused persons in Denver and other communities in Colorado are routinely arrested for minor offenses, or told by police to "move along," even in the middle of the night, often multiple times. The question that is never answered is, "Move along to where?" If not onto private property, not on sidewalks or in parks or pretty much anywhere on public property, then where exactly is a person without a home supposed to go?
There are shelters, of course, but in almost no Colorado communities are they sufficient for the number of people without homes, especially in cold weather. No doubt many shelter managers do the best they can with the resources they have, but shelters are often crowded and unpleasant places. There is little to no privacy, and there may not be room or adequate storage for personal possessions. Some shelters are "dry," so anyone smelling of alcohol or marijuana will be turned away. Other shelters ban certain persons for weeks, months, or permanently, so they don't have that option. Shelters in Colorado Springs have been infested with bedbugs, and cities like Fort Collins routinely claim that their shelters are not full, even as they are turning people away. There are women who don't want to go into the same shelter with men who have sexually abused them. Crowded shelters can be especially difficult for people suffering from an active mental illness. There are all kinds of reasons unhoused persons either have no choice or would rather take their chances and have a little more freedom somewhere outside, if they can just find somewhere to go.
It is not surprising that unhoused persons in Denver have sought to create a small space for themselves in downtown areas near some of the shelters and service providers, but the City of Denver is now aggressively engaging in sweeps of these areas, once again telling people without homes to "move along," without saying "to where." For those who must or who prefer to sleep outdoors, it is outrageously insensitive of city officials to dismiss them as "service-resistant." It is not illegal to be without a home or to sleep outside of a building, but if there is no outdoor location where a person can sleep or rest without being harassed or arrested, then we have effectively criminalized homelessness.
Denver's sweeps treat people who are homeless and their few possessions as little more than trash, something to be swept out of sight so other people can feel more comfortable. Confiscated property is supposed to be inventoried so it can be reclaimed, but that does not appear to happen in practice. There are no records to be found of what happened to anyone's property in Denver's last sweep on a cold, snowy night in December, for example, and the "reclamation center" from this latest set of sweeps appears to be little more than a row of trash cans. Lacking transportation if they have been pushed somewhere else, and always afraid of arrest or harassment, few of those who might have property there dare to show up.
These sweeps and other efforts to drive away unhoused persons are often justified in the name of public safety or public health, but is that really the core concern? If enforcement was more narrowly tailored it might be believable, but Denver and other communities often use broad and vague ordinances in an attempt to hide or drive away anyone who is unhoused. Already, Aurora is concerned that people who are homeless in Denver will be pushed into their community. Municipalities around Colorado are competing to pass the most hostile laws to unhoused persons, or to enforce vague laws in the broadest possible way. Boulder makes extensive use of its camping ban, defining even a small blanket as illegal shelter. Colorado Springs has made it a crime to sit in downtown areas. Have a car? Many communities won't let you sleep there, either. Need some food or spare change? Many communities want to make it illegal to ask. An adult with a home has no legal worries drinking a can of beer, but the same thing can land a person without a home in jail. Unhoused persons are targeted by ordinances against vagrancy, trespassing, loitering, or curfew violations and any number of other laws criminalizing their mere presence. Colorado jails are full of people who are homeless, at great cost to taxpayers, rarely for serious crimes. The real safety and health issues are for unhoused persons themselves, their already difficult lives made worse by criminal records and constant harassment.
Denver officials seem proud of their aggressive "sweeps", but they ought to feel ashamed. Unless there are truly good alternatives for the people they are sweeping away, unless they can point to adequate places where people can go, it is little more than cruelty. The relief that some people may feel driving through the "cleaned up" areas is only anguish to people without homes. It creates the appearance of solving a problem while only making real problems worse. It may feel uncomfortable to see people experiencing homelessness in our communities, but maybe that's a discomfort we need to feel, until the day that we face up to the underlying causes of homelessness and seek solutions that actually help the lives and respect the civil liberties of our unhoused neighbors.