By Sarah Alverez | Bridge Magazine
On a chilly Thursday morning, 36th District Court Judge David Robinson walks into his courtroom wearing a dress shirt and slacks. As is his custom, he skips the traditional judges’ robe.
“I keep it informal,” he says.
A few minutes later, Robinson scolds a man for his clothing choices, calling him out for wearing a stocking cap in court. That’s because informality only goes one way in this Detroit courtroom, and business is anything but casual for about 20 traffic defendants.
Pay traffic tickets today, Robinson tells the group, who have already been convicted of misdemeanor traffic offenses. Or go to jail.
Robinson jokes about the prospect, calling it a five-day “vacation” with room and board provided by taxpayers. A few people chuckle. Most stay silent. One man whispers, “What?”
This is standard procedure for the weekly collections docket of the Detroit court, the busiest in Michigan. The state Supreme Court and 36th District Court established the special docket in 2013 to increase revenues as the city was sliding toward bankruptcy. Jailing those who can’t afford to pay fines or issuing warrants for their arrests is a tactic known as “pay or stay,” and it’s controversial nationwide.
An investigation by Bridge Magazine, however, finds that the policy in 36th District Court – which was meant to generate revenue – may actually cost more than it collects, puts an added burden on jail facilities, and may violate state court rules. Michigan law and rules from the Michigan State Court Administrative Office say judges should consider a defendant’s ability to pay a fine whenever jail is on the line.
Robinson acknowledges he typically doesn’t hold hearings to determine whether defendants in his courtroom can pay fines.
“It is wrong and illegal to sentence a defendant to jail because of a debt owed to the court without first holding a hearing to determine the defendant’s ability to pay,” said 51th District Judge Thomas Boyd, president of the Michigan District Judges Association.
“Any court sending a defendant to jail should be holding a hearing or proving a judge already did that hearing.”
In January and February alone, county taxpayers paid to jail 256 people who didn’t pay
traffic tickets, according to records obtained from the Wayne County Jail through the state’s Freedom of Information Act.
A review of hundreds of jail and district court records shows they were jailed for an average of four days at a cost to taxpayers of $600 apiece, but in most cases they owed fines totaling half that amount.
In extreme cases, defendants convicted of driving with a suspended license owed just $315 but stayed in jail for seven days, at a cost to taxpayers of about $1,050, according to jail and district court records.
The two months of records analyzed by Bridge are typical of the year-around makeup of the jail population, said Jeriel Heard, chief of the county’s jails.
“That’s not a good use of my money as a taxpayer,” said Oakland University political science professor Diane Hartmus, who has studied 36th District Court. “Even if you’re taking out the human element of what it does to somebody to spend time in jail, financially this makes no sense.”
In Michigan, no money collected from traffic fines goes to reimburse county jails for costs of incarcerating inmates. In Wayne County, which includes Detroit, Sheriff Benny Napoleon said there are better alternatives than jailing people who don’t pay the fines. The county’s three jails, which have about 2,900 beds, are so overcrowded they regularly must release inmates.
“There are parks that need cleaning and roadsides that could be picked up,” Napoleon said. “I would like to see more people doing community service rather than going to jail. That would save taxpayers money and it would benefit the community.”
I’m a judge, not a DJ
Detroit’s 36th District Court is by far the busiest in the state, handling 500,000 cases last year, 319,000 of which were traffic cases. In a narrow sense, Robinson’s collection docket has increased revenues. Traffic fines are expected to increase this year to $12 million, up about $1 million from the year before Robinson’s docket was created.
He argues that other judges already have convicted defendants before they enter his courtroom, so there’s no need for him to assess whether they can pay the fines.
“That ship has sailed …. I say it in my courtroom all the time. I’m not a disc jockey. I don’t take requests,” he said.
Robinson said that, despite his tough talk, he rarely sends people to directly to jail and works to put defendants on payment plans first. During two months of records reviewed for this report, Robinson’s cases typically ended in warrants for defendants’ arrests because defendants failed to appear.
That is true of the court overall, where 64 percent of traffic misdemeanor cases end in warrants.
Robinson said the collections docket ensures the court dispenses “accurate and predictable enforcement,” which wasn’t always the case a few years ago as Detroit descended into bankruptcy.
“We wanted a culture change,” Robinson said, adding “the question is why should people not be held accountable? We enforce our orders.”
Community activist Clark Washington said the court’s reputation for jailing those who don’t pay is counterproductive because it keeps some defendants away. Those who can’t afford to pay tickets are less likely to appear in court, leading to more drivers with suspended licenses and driving without insurance, said Washington, an organizer for Detroit Action Commonwealth, a group that advocates for the poor.
“We don’t go to traffic court in Detroit because we’ve got no money,” he said. “And if you go in there with no money, you aren’t getting out. So we don’t go. It’s catch me if you can.”
Nancy Blount, chief judge of the 36th District Court, said the 30-judge court is one of the “most defendant friendly courts in the state.” Even so, her court made news in May by banning all pens, pencils and other “writing instruments” for everyone except lawyers and “properly credentialed” media. The ban is supposed to protect the court’s new murals from possible vandalism.
“The only thing you need here is cash,” said a security guard recently to a young woman waiting to pass through the metal detectors on her way into court.
State says court is in compliance
Boyd, president of the district judges’ association, said it’s possible to have good collection rates without the tough strategy.
“I say you will never be in trouble with us if you can’t make a payment,” said Boyd, whose court covers Ingham County. “As long as you’re the one who tells us you can’t make a payment and you do it before it’s due. I say it so many times I could say it in my sleep.”
State Court Administrator Milton Mack, whose office oversees the state’s 135 district and circuit court judges, has issued guidance strongly stating that courts should determine if defendants can pay fines.
“Ability to pay is something that needs to be considered whenever somebody is at risk of being incarcerated,” Mack said.
Even so, the state office rates 36th District Court as complying with “all required components of a trial court collections program.” The office’s regional administrator, Paul Paruk, declined to comment in detail on the collections docket.
“It’s hard for me to comment on a practice that I haven’t looked into and that nobody has complained about before,” Paruk said.
Is pay or stay fair?
Pay or stay is a controversial approach to justice nationwide.
Courts from Houston, Texas to Eastpointe, Michigan have used tactics harsher than those in Detroit. In Eastpointe, the ACLU sued over a woman who was threatened with jail because she couldn’t immediately afford to pay $445 in fines for failing to have her dogs licensed. After the suit, the judge agreed to end the practice.
The Michigan Secretary of State also was recently hit with a class-action suit by a civil rights group, Equal Justice Under Law, over its practice of suspending licenses of motorists who have safe driving records but can’t afford to pay traffic fines or court fees.
The suit named two impoverished Detroit mothers, Adrian Fowler and Kitia Harris, who had licenses suspended after failing to pay routine infractions.
“Losing a driver’s license is an extraordinary punishment that goes far beyond a fine,” Phil Telfeyan, founder and executive director of Equal Justice Under Law, said in a statement. “It is an attack on a person’s independence, pride and character. As a nation, we encourage our citizens to be self-sufficient. To take away someone’s ability to drive simply because they are too poor to pay a fine is unfair, unjust, and un-American.”
State makes big money off tickets
David Hogg, a retired judge in northern Michigan, said the state’s reliance on fines to pay for court operations perpetuates pay-or-stay practices.
“This is a more difficult problem than just a bunch of mean judges sending poor people to jail,” said Hogg, who was a judge in the 84th District Court in Wexford County.
In Michigan, traffic fines have a way of multiplying because of added court costs and fees.
A $25 ticket for driving with an improper license plate, for instance, actually costs $225 after adding on $75 for a crime victim rights assessment, $50 for local court costs, $25 for an attorney fee fund and $50 for state costs.
The state costs are distributed to 18 funds, ranging from judicial pension systems and libraries to highways. Robinson and the 275 other judges in the state’s 105 district courts can waive the $50 state costs if defendants are declared indigent.
The 36th District Court cost $34 million a year to operate last year and brought in about $26 million through fines and fees (less than half of which was traffic fines). The state took $9 million of that.
A state House Fiscal Agency report from last October conservatively estimated Michigan collects $100 million per year from traffic fines. The money pays for the salaries of the state’s district judges and leaves the rest of the cost of running the courts to municipalities.
Solutions aren’t easy because there needs to be consequences for breaking the law, Hogg said.
“There has to be a way to hold poor people accountable for their behavior,” he said. “The problem isn’t only sending people who can’t pay to jail. The problem is having people who can’t pay have no consequences at all.”
Alternative sentences like community service may work on a limited basis, Hogg said, but there “aren’t enough probation officers in the world” if it was more widely used.
Alexandra Natapoff, a criminal law professor at Loyola Law School in Los Angeles, is writing a book about how courts handle low-level offenses. She said fines have gotten out of hand.
“Just because you can afford to pay a $500 fine doesn’t mean you should have to,” she said. “We should be having a public conversation about ways to raise revenue, but this is happening under the radar and without that conversation.”
A system designed by bankruptcy
Robinson’s collections docket was created, in large part, because the 36th District Court didn’t collect enough money.
A report commissioned by the Michigan Supreme Court concluded the district court needs to “get serious about its collection efforts to promote public compliance” and ensure “scofflaws” pay. The state also criticized the court’s use of a private collections agency that kept 20 percent of all ticket revenue.
The state found the court was inefficient in expensive and darkly comic ways. Among other problems, a state investigation found that 183 computers were scattered throughout the court, none was ever turned on and no court employees had email addresses.
The court was so antiquated that the Michigan Supreme Court had to pass out paper copies notifying workers it was assuming “superintending” control of 36th District Court.
During the year the state had control of the 36th District, it made sweeping changes that led to savings that included restructuring union contracts and cutting staff. The state also tried to create more accountability for judges on the court by trying to ensure they showed up to work on time, and appointed Blount as chief judge to bring about the “culture change.”
Hartmus, the political science professor, said the state should not be treating the court as a city department, even just financially.
“What was particularly uncomfortable about the bankruptcy was the concern that the court would start issuing fines to pay their own budget,” she said. “That creates distrust.”
Blount, the court’s chief judge, said she pushes back against an expectation the court should make money,
“We are not in the business of generating revenue,” she says. “And I tell City Council that.”
When the state stepped in and set up the docket, it reported that revenue from overall collections – including all fines, not just those related to traffic offenses – increased about 17 percent to $2.4 million a month.
Predictable but harsh
Since 2014, when the state stepped aside, the methods used for collections have become more predictable, but attorney Charles Hobbs said the methods are questionable.
Hobbs works for a nonprofit legal defense project called Street Democracy and represents military veterans and people struggling with homelessness in Wayne County. One of his clients, Lorinzo Ervin, wanted help navigating the collections docket.
Ervin pleaded guilty in 36th District Court to having an open container of alcohol in a vehicle and was ordered by the court to pay $385. At the time, he said he was homeless and looking for a job and avoided the court because he couldn’t pay the fine.
A few months later, Ervin got his life together and went into Robinson’s courtroom for what’s known as a show cause hearing. These hearings are the bread-and-butter of the collections docket and are supposed to be a last chance for defendants to explain why they shouldn’t be held in contempt and sent to jail for not paying their fine.
Ervin wanted a chance to give his side of the story.
“I Googled ‘show cause’ hearing before I went and did some research. I was prepared,” he said.
But Ervin said Robinson didn’t seem to want to give him a hearing.
“He was really mad and yelling at me, saying, ‘You are entitled to that hearing but you still might go to jail. So are you sure you want it?’” Ervin remembered.
Robinson acknowledged he rarely holds a hearing and says he goes “literally months” without one. Instead, defendants deal with the court clerk to set up payment plans while Robinson sits nearby.
There is no way to verify Ervin’s account. Because Robinson rarely calls court into session, what goes on in his courtroom isn’t transcribed by a court reporter, meaning there is no official record.
Ervin said he got his hearing and with it more time to pay, but he said the court made it hard for him to pay. That delayed efforts to get his back his license, which he said he needs for his new job at a moving company.
He said he was told by court staffers he would soon receive a summons for another hearing. After one didn’t arrive by mail for two weeks, he phoned the court.
When he did, Ervin said he was surprised to learn he had a warrant for his arrest from the ticket. That’s when Ervin thought he needed a lawyer and connected with Hobbs.
Ervin’s original fine of $325 had increased by $200 because of late fees and warrant costs by the time he went back to court. When court officers called his name, he said he was detained within the courtroom, put in the jury box, and told he could not leave unless he paid half his fine that day.
Ervin said he only had enough money to pay for the cost of the old ticket, not the additional costs.
“(Robinson) told me, ‘Get on the phone and call somebody,’” he said. “I told him I didn’t have anybody to call.”
Hobbs came into the courtroom a few minutes later and was able to negotiate the amount down to keep Ervin out of jail that day but he said he wasn’t happy with the way his client was treated.
“That is basically an unlawful arrest,” said Hobbs.
Hobbs questions if threatening jail even for those willing to work with the court makes sense.
“It is a waste of time for the court, especially when people are making payments” Hobbs said. “What is the point?”