Courts throughout Colorado are sending impoverished people to jail, not because they’ve committed crimes, but because they can’t pay fines for violations as small as traffic offenses or dog-leash and pet-licensing laws.
It’s a practice that critics say violates the U.S. and Colorado constitutions and amounts to a resurgence of debtors’ prisons, which were abolished in the 1800s. Civil rights lawyers also argue that it’s a waste of resources and ends up penalizing those in poverty.
“Jailing Colorado residents because they are too poor to pay their fines is a bad idea for multiple reasons,” said Mark Silverstein, legal director of the American Civil Liberties Union of Colorado. “It doesn’t get the fine paid. It wastes resources. It worsens poverty. It unfairly creates a two-tiered justice system.”
A 1983 U.S. Supreme Court ruling found that jailing poor people for not paying court-related fines violates the constitution’s equal protection clause.
In 1987, the Colorado Supreme Court ruled that jailing an indigent defendant for failure to pay shouldn’t occur because it punishes the poor for being poor. The Colorado Constitution also states that “no person shall be imprisoned for debt.”
But in nine of the largest 16 cities in Colorado, the ACLU found that judges routinely issue “pay-or-serve” warrants against those too poor to pay court fines. In such cases, individuals are given a stark option: Pay up in cash or pay off fines by serving time in jail.
Some judges don’t give defendants a court hearing before sending them to jail for unpaid fines. When hearings are held, judges routinely ignore signs of indigence, such as notations on the police summons that the defendant is homeless, a review of court files shows.
In Westminster, unpaid court fines of as little as $90 can result in a 10-day jail sentence.
Westminster’s Municipal Presiding Judge John Stipech issued a standing order in 2001 that remains in effect today that requires a defendant be jailed for 10 days for failure to pay a court-ordered fine, no matter how small the amount owed.
Pay or go to jail
Jared Thornburg ran afoul of that order in 2012, shortly after he lost his oil-rig job and his company-paid housing after a chemical burn to his left eye.
He was homeless and hoping to scrape together whatever he could for a motel room when a police officer stopped him. He had made a wrong turn in his Jeep and was driving a defective vehicle — non-jailable offenses, according to the Colorado Revised Statutes.
Stipech ordered Thornburg to pay $306.25 in fines, but he could make an initial payment of only $61.25, records show. Eight days later, Stipech issued an order for his arrest, demanding the final payment or 10 days in jail. Thornburg went to jail because he couldn’t pay.
“It sucked,” said Thornburg, 29, of Brighton. “It hasn’t helped even to this day. It hasn’t made my life any easier. I think it’s stupid. They put me in jail for 10 days, and I just didn’t have the money. They spent a lot more putting me in jail for 10 days than the amount I owed them.”
He said he was on the verge of landing a job at Taco Bell when he was jailed. Once released from incarceration, he resorted to “couch surfing” at his friends’ homes until he landed a job at a grocery store.
Stipech didn’t return telephone messages seeking comment.
Colorado courts don’t apply consistent standards on how to deal with those too poor to pay. A judge in one county might send a defendant to jail for weeks, while across the county line the same person could get a break if he or she relies on food stamps.
In some areas, attempts to pay are ignored and aren’t sufficient to keep the poor from going to jail.
Records show that Kim Santistevan was 19 and without a job or a car when she was arrested in March 2012 in Wheat Ridge for possession of alcohol by a minor.
Despite those hurdles, she tried to pay off her $250 court fine for her guilty plea. She had checks on her behalf sent twice to Wheat Ridge Municipal Court for $250. But by then her fines had risen to $325 due to an additional bench-warrant fee and a failure-to-appear fee. A court clerk returned the checks twice, stating in letters that partial payment could not be accepted, and only a full $325 payment would suffice.
By June of 2012, Santistevan’s total debt had risen to $550 after she failed to appear for another court hearing. Wheat Ridge Municipal Court Presiding Judge Christopher Randall issued a warrant for her arrest, demanding she pay that amount or spend 13 days in jail. She was incarcerated for 16 days, records show.
In another case, Christopher Penney, a homeless man who pleaded guilty to public possession of alcohol, told Randall that he was in the hospital the day his fine was due. The judge still ordered him to come up with the $625 in fines or serve the time in jail.
“The balance is 625 bucks and the way it works is you come up with the $625, and if you had that kind of money you already would have done it, or you serve at $50 a day, so it’s 13 days,” the judge said, according to an audio recording of the hearing.
“I want to try to put a positive spin on that,” the judge added. “You don’t have to pay the fine. You get out of the fine.”
Unable to pay, Penney did the time.
Randall declined comment.
The ACLU found that in a six-month period ending in July 2013, Wheat Ridge Municipal Court issued at least 190 pay-or-serve warrants. Many were for failure to pay a fine for minor violations, ranging from ordinances regulating dogs on leashes, possession of alcohol in public to animal licenses.
Joining Wheat Ridge and Westminster in the pay-or-serve practice are Colorado Springs, Northglenn, Fort Collins, Lakewood, Thornton, Arvada, Boulder, Loveland and Broomfield, the ACLU found.
Dropped in Denver
Not all jurisdictions engage in the practice though. Denver County Court judges voted in June 2012 to stop issuing arrest warrants for failure to pay, deciding the practice was ineffective and costly. They estimated the change would cut jail costs by about $1 million annually. A collection agency has helped the court increase its collection of fines and fees.
The order from Denver County Court Presiding Judge John Marcucci that put a stop to the failure to pay warrants states the change was warranted “after reviewing current collections effectiveness with modern processes, the minimal effectiveness of this jail use, the many fiscal and social costs of arrest and incarceration as well as to foster an overall more positive approach to justice.”
Marcucci said he pushed for the change after spending four years staffing the jail courtroom.
“I saw the arrest for outstanding fines and costs as a lose-lose proposition,” Marcucci said. “Those arrested often were unable to pay. And we were spending money to arrest them and spending money to incarcerate them after they were arrested, and we were losing out on the ability to collect fines and costs.”
Courts can garnish wages to pay fines over time or require fines to be paid before an individual can renew a driver’s license, he said.
At the urging of the ACLU, a Colorado Supreme Court committee in charge of the rules for criminal procedure is considering clarifying how county and district courts should deal with defendants who can’t pay court-ordered fines.
A draft proposal would require judges to instruct defendants that they have the right to show evidence they are unable to pay court fines and can request that their court fines be waived or modified. The rules would allow a contempt finding for failure to pay a fine if the judge determines the defendant can pay without undue hardship.
For now, “pay-or-serve” remains the law in cities throughout Colorado.
That means people like Dennis Melling will continue to end up in jail.
In Westminster, police arrested Melling for panhandling in a Safeway parking lot. He pleaded guilty to trespassing in June 2012 and was ordered to pay $145.
A month later, Westminster Municipal Court Associate Judge Paul Basso issued a warrant for Melling’s arrest for failure to pay what had grown to $195 in fines, records show. The warrant said Melling could either spend 10 days in jail or pay his fines and get released.
Melling served the time at the Jefferson County Detention Center.