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    Dec 08

    Fighting Colorado Probation Violations For Failure To Pay Fines And Costs - 18-1.3-702

    By H. Michael Steinberg – Colorado Probation Violation Lawyer

    Fighting Colorado Probation Violations For Failure To Pay Fines And Costs – Until very recently judges in our Colorado courts were routinely jailing individuals for the non-payment of fines and other court costs.

    As a result of privatizing probation services – individuals – private probation officers so to speak who are  so poorly trained and who do not fully understand the impact a jail sentence may have on a person’s future -filed complaints to revoke the probation of people unable to pay their fines and costs because of financial hardship.

    So called “private probation” has been called “offender-funded justice” because of the shift from using state and local employees to private owned and operated companies that contract with local probation offices to deliver probation based services.

    With the privatization of probation officers – Colorado is one of more than a dozen states, including Alabama, Florida, Georgia, Idaho, Illinois, Michigan, Mississippi, Missouri, Montana, Tennessee and Utah, – saving tax dollars by squeezing those on probation. In these states private probation officers have financial motivations to collect the money from those on probation or under Court supervision.  Private probation has been heralded as cost saving when compared to the costs of the equivalent state employee. The motivation to prove this theory by collecting previously uncollected court fines and costs – has led to the issuance of hundreds if not thousands of arrest warrants based on the failure to pay court fines and costs.

    These unfair and “cold” decisions to request arrest warrants for the failure to pay fines and costs whether the non-payment was the result of financial hardship or it was purely willful in nature  – led to an investigation by the ACLU and a new law passed by the Colorado State Legislature and signed by the Governor to address the issue.

    The Costs Of Probation Supervision And Other Court Costs In Colorado Criminal Cases

    The costs of probation are many and can be prohibitively expensive. Probation supervision fees run $50.00 a month. Add to that costs for drug and alcohol classes, domestic violence treatment, useful public service fees, ankle monitoring fees, drug and alcohol evaluations and monitoring costs for UA’s (urinalysis) or breathalizer fees, and the costs escalate and the list of the costs is seemingly endless.

    Here is the list of possible COURT costs -(not including restitution and interest on that restitution) as excerpted from the statute):

    § 18-1.3-701. Judgment for costs and fines.

    (2) The costs assessed pursuant to subsection (1) of this section or section 16-18-101, C.R.S., may include:

    (a) Any docket fee required by article 32 of title 13, C.R.S., or any other fee or tax required by statute to be paid to the clerk of the court;

    (b) The jury fee required by section 13-71-144 , C.R.S.;

    (c) Any fees required to be paid to sheriffs pursuant to section 30-1-104 , C.R.S.;

    (d) Any fees of the court reporter for all or any part of a transcript necessarily obtained for use in the case, including the fees provided for in section 16-18-101(2) , C.R.S., and including the fees for a transcript of any preliminary hearing;

    (d.5) The actual costs paid to any expert witness;

    (e) (I) The witness fees and mileage paid pursuant to article 33 of title 13, C.R.S., and section 16-9-203 , C.R.S.;

    (II) For any person required to travel more than fifty miles from the person’s place of residence to the place where specified in the subpoena, in addition

    to the witness fee and mileage specified in subparagraph (I) of this paragraph (e):

    (A) Actual lodging expenses incurred; and

    (B) Actual rental car, taxi, or other transportation costs incurred;

    (e.5) If a person under eighteen years of age is required to appear, the amount that a parent or guardian of the person was paid for transportation and lodging expenses incurred while accompanying the person;

    (f) Any fees for exemplification and copies of papers necessarily obtained for use in the case;

    (g) Any costs of taking depositions for the perpetuation of testimony, including reporter’s fees, witness fees, expert witness fees, mileage for witnesses, and sheriff fees for service of subpoenas;

    (h) Any statutory fees for service of process or statutory fees for any required publications;

    (h.5) Any fees for interpreters required during depositions or during trials;

    (i) Any item specifically authorized by statute to be included as part of the costs;

    (j) On proper motion of the prosecuting attorney and at the discretion of the court, any other reasonable and necessary costs incurred by the prosecuting attorney or law enforcement agency that are directly the result of the prosecution of the defendant, including the costs resulting from the collection and analysis of any chemical test upon the defendant pursuant to section 42-4-1301.1 , C.R.S., which costs shall be reimbursed by the defendant directly to the law enforcement agency that performed such chemical tests;

    (k) Any costs incurred in obtaining a governor’s warrant pursuant to section 16-19-108 C.R.S.;

    (l) Any costs incurred by the law enforcement agency in photocopying reports, developing film, and purchasing videotape as necessary for use in the case;

    (m) Any costs of participation in a diversion program if the offender or juvenile unsuccessfully participated in a diversion program prior to the conviction or adjudication.

    So Called “Debtor’s Prisons” Are Unconstitutional – “Jailing The Poor” For Being Poor

    The U.S. Supreme Court has held that jailing poor people for not paying court-related fines violates the constitution’s equal protection clause The Colorado Supreme Court has also ruled that jailing an indigent defendant for failure to pay fines and costs should not occur because it punishes the poor for being poor.

    Even for the smallest of crimes court costs can run into the hundreds if not thousands of dollars.

    pay-for-jail and pay-or-be-jailed” decisions by Colorado Judges – especially Colorado’s municipal court Judges.

    Notwithstanding the Colorado constitutional prohibition of jailing the indigent – ( “no person shall be imprisoned for debt.”), Judges – especially at the municipal level -routinely jailed the poor where they could not pay their court costs and fines.

    “Jailing poor people for fines they cannot pay violates the Constitution and punishes poor people just for being poor. It also wastes taxpayer resources, crowds the jails, and doesn’t get the fines paid.” Mark Silverstein, ACLU Legal Director

    “Incarcerating the poor creates a two-tiered system of justice. The poorest are punished more harshly and, due to escalating fines and fees that attach because of late payments or non-payments, poor people pay more in fines.”

    Why The New Law Makes Sense

    The new law – reprinted below – allows Judges to determine if a person is able or unable to pay a fine, and once that determination is made – find a solution that makes sense to “pay “the fine or cos. This can include things such as public service or a payment plan.

    It is only after this evaluation – if it is established that an individual can pay but then chooses not to do so, that they are can be found to be in “contempt of court.”

    Putting aside the unconstitutionality of the incarceration of criminal court “debtors” – incarceration leads to the loss of employment, housing, the breakup of families – and sometimes the need to go on public assistance before locating a new job.

    Jailing a person because they owe a debt to the criminal courts of Colorado means not only that the Court will not collect that debt, it means the costs of jail is taxed to the public. This makes no sense and is one of the main reasons support for the new law was bipartisan here in Colorado.

    The ACLU specifically went after the municipal courts of Colorado such as Westminster, Wheat Ridge, and Northglenn – these cities would routinely issue “pay or serve” warrants without NO consideration as to the debtor’s ability to pay.

    Here Is The NEW LAW – 18-1.3-702

    § 18-1.3-702. Monetary payments – due process required

    (1) (a) When the court imposes a sentence that includes the payment of a monetary amount, the court may direct as follows:

    (I) That the defendant pay the entire monetary amount at the time sentence is pronounced;

    (II) That the defendant pay the entire monetary amount at some later date;

    (III) That the defendant pay as directed by the court or the court’s designated official the monetary amount:

    (A) At a future date certain in its entirety;

    (B) By periodic payments which may include payments at intervals, referred to in this section as a “payment plan“; or

    (C) By other payment arrangement as determined by the court or the court’s designated official;

    (IV) When the defendant is sentenced to a period of probation as well as payment of a monetary amount, that payment of the monetary amount be made a condition of probation.

    (b) A court’s designated official shall report to the court on any failure to pay.

    (c) As used in this section, “court’s designated official” includes, but is not limited to, a “collections investigator” as defined in section 18-1.3-602 (1).

    (2) When the court imposes a sentence that includes payment of any monetary amount, the court shall instruct the defendant as follows:

    (a) If at any time the defendant is unable to pay the monetary amount due, the defendant must contact the court’s designated official or appear before the court to explain why he or she is unable to pay the monetary amount; and

    (b) If the defendant has the ability to pay the monetary amount as directed by the court or the court’s designee but willfully fails to pay, the defendant may be imprisoned for failure to comply with the court’s lawful order to pay pursuant to the terms of this section.

    (3) Incarceration for failure to pay is prohibited absent provision of the following procedural protections:

    (a) When a defendant is unable to pay a monetary amount due without undue hardship to himself or herself or his or her dependents, the court shall not imprison the defendant for his or her failure to pay;

    (b) Except in the case of a corporation, if the defendant failed to pay a monetary amount due, the court, when appropriate, may consider a motion to impose part or all of a suspended sentence, may consider a motion to revoke probation, or may institute proceedings for contempt of court. When instituting contempt of court proceedings, the court, including a municipal court, shall provide all procedural protections mandated in rule 107 of Colorado rules of civil procedure or rule 407 of Colorado rules of county court civil procedure.

    (c) The court shall not find the defendant in contempt of court, nor impose a suspended sentence, nor revoke probation, nor order the defendant to jail for failure to pay unless the court has made findings on the record, after providing notice to the defendant and a hearing, that the defendant has the ability to comply with the court’s order to pay a monetary amount due without undue hardship to the defendant or the defendant’s dependents and that the defendant has not made a good faith effort to comply with the order.

    If the defendant fails to appear at the hearing referenced in this paragraph (c) after receiving notice, the court may issue a warrant for his or her arrest for failure to appear. In no event shall the court issue a warrant for failure to pay money.

    (4) If the court finds a defendant in contempt of court for willful failure to pay, the court may direct that the defendant be imprisoned until the monetary payment ordered by the court is made, but the court shall specify a maximum period of imprisonment subject to the following limits:

    [HMS – Limitations On The Amount Of Time That Can Be Imposed]

    (a) When the monetary amount was imposed for a felony, the period shall not exceed one year;

    (b) When the monetary amount was imposed for a misdemeanor, the period shall not exceed one-third of the maximum term of imprisonment authorized for the misdemeanor;

    (c) When the monetary amount was imposed for a petty offense, a traffic violation, or a violation of a municipal ordinance, any of which is punishable by a possible jail sentence, the period shall not exceed fifteen days;

    (d) There shall be no imprisonment in those cases when no imprisonment is provided for in the possible sentence; and

    (e) When a sentence of imprisonment and a monetary amount was imposed, the aggregate of the period and the term of the sentence shall not exceed the maximum term of imprisonment authorized for the offense.

    (5) This section applies to all courts of record in Colorado, including but not limited to municipal courts.

    (6) Nothing in this section prevents the collection of a monetary amount in the same manner as a judgment in a civil action. 

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