Last week I posted a link on my Facebook page to a New York Times article discussing an initiative by the U.S. Department of Justice “calling on state judges across the country to root out unconstitutional policies that have locked poor people in a cycle of fines, debt and jail,” which initiative targets, among other issues, the fact that in some states, judges routinely impose large fines/surcharges/court costs/etc on criminal defendants without any consideration of the defendant’s ability to pay the same, and then use the threat of additional jail time as a collection tool.
This doesn’t happen in Iowa, in part because while judges are required to impose fines in most cases, they generally have discretion to suspend some or all of a fine (or authorize community service in lieu of the fine) if, for example, a defendant is on a fixed income that barely covers his or her living expenses. This policy is NOT based on a desire to “reward” a defendant for being indigent, or to “punish” a non-indigent defendant for holding down a decent paying job; it’s based on an acknowledgement that ordering a poor person to pay hundreds or thousands of dollars in fines and surcharges is the equivalent of ordering him to grow wings and fly to the moon – it’s impossible and it’s not going to happen, and trying to force the impossible to happen is just throwing good (taxpayer) money after bad.
But Operating While Intoxicated offenses are handled differently. OWI mandatory minimum fines are very high (with surcharges, it’s $1,687 for 1st, $2,531 for 2nd, and $4,219 for 3rd), and – in contrast to the fines imposed for pretty much any other indictable offense – a judge cannot suspend any part of an OWI fine (I actually disagree with that interpretation of Iowa Code 907.3(c) but I’m not a judge so …). In my Facebook post I suggested that denying Iowa judges the authority to take into account the objective ability of individual OWI defendants to pay these large fines/surcharges was problematic, both from a constitutional and a common sense standpoint.
Several of my Facebook friends then suggested that I was advocating in favor of forcing rich OWI defendants to pay the fines of poor OWI defendants, and/or that I was excusing and minimizing the actions of low income people who drive while intoxicated – which is not what my post said or implied. No one should drive while intoxicated, ever, and I have no problem with the mandatory driving suspensions and the mandatory jail sentences associated with OWI offenses, because serving a jail sentence and losing driving privileges for a set period of time is pretty much equally unpleasant for everyone, whether they are rich, poor, or in between. As it should be.
However, the imposition of a fine/surcharge in excess (sometimes way in excess) of $1,500 does hit lower income defendants a lot harder than it hits non-lower income defendants – that’s just a fact, right? I’m far from rich, but if I was (hypothetically) convicted of OWI 1st Offense tomorrow, I could pay off all of my court debt within six months, and doing so would, realistically, have minimal impact on my day to day life – maybe I’d have to be more careful at the grocery store, or put off that trip to Chicago to see my sister, but I’d still be able to pay all of my bills, and take my kid out to dinner, and occasionally go to the movies. And a zero balance with the clerk of court means that the DOT would restore my driving privileges at the end of my six month implied consent suspension period, assuming I’ve completed the drunk drivers class at the community college, completed any recommended substance abuse treatment, and paid the DOT my $250 reinstatement fee.
That’s nice for me; however, a guy earning $8.50 an hour – let’s call him Jake – who’s supporting a family of four simply can’t afford to pay the clerk of court $250 a month for six months. A judge will probably allow Jake to pay $100 a month for fifteen months, but Jake has a family, and he works forty hours a week but barely earns enough to pay the rent, put gas in his car (so his wife can drive him to work) and food on his table, and thus, coming up with an extra $100 every single month for fifteen months is an extremely heavy lift … and something always comes up, especially if you have kids, right? If that “something” is winter boots for the kids, or tires for the car (that Jake needs so his wife can drive him to work), or a family pet who needs to see a vet, maybe Jake decides that he’ll take care of that “something” this month, and (somehow) pay the clerk $200 towards the fine next month … except by then, his case has been sent to a private debt collection agency, which has tacked a 25% surcharge onto the total amount of debt, so Jake owes a lot more than he started out owing, and now Jake won’t be getting his driving privileges back any time in the foreseeable future, and it’s just a really bad situation. Especially if Jake ends up driving himself to work (because his wife is sick, maybe) and gets caught driving without a license and without insurance.
And sure, Jake should have never ever driven under the influence of alcohol in the first place, but the point is that if (hypothetically) I drive under the influence of alcohol and get caught, I can pay off my court debt and get my legal driving privileges back within six months without losing any sleep or missing any meals, even though (and this is important) I am no more or less morally or legally culpable than Jake – I just make more money than Jake.
A mandatory minimum fine that poses a huge (possibly insurmountable) financial hardship for some defendants, and poses only an inconvenience (maybe a big inconvenience, maybe a small inconvenience, but still just an inconvenience) for others doesn’t make sense, it doesn’t make Iowa a safer place to live, and it isn’t fair. And yes, I am well aware that life isn’t fair, but a guiding principal of our criminal justice system is that defendants with similar criminal records who commit the same crime under basically the same circumstances should ideally “suffer” the same amount/level of punishment. A $1,500 fine is, objectively, a much harsher level of punishment for Jake than it is for the me, and that is not the way our justice system is supposed to work.
Luckily, there’s an easy fix: the legislature should give Iowa judges at least some discretion to suspend at least some of a mandatory minimum OWI fine, based on a judge’s determination of what a defendant can or should be able to pay (which again, I think judges can already do, but the AG disagrees). That’s how it works with (I’m pretty sure) every other fine imposed for every other indictable criminal offense (including violent felonies), and I can’t think of any good rationale for treating OWI fines any differently. Can you?