(Photo by David Handschuh/NYLJ)

A new report from a court reform advocacy group Wednesday said town and village justices in New York commonly ignore legal precedent and state law by issuing bench warrants and jail terms for defendants who are too poor to pay fines and fees.

The Fund for Modern Courts, a group founded decades ago to advocate for improvements to the state's court system, said in the report that many of those justices don't follow case law and statutes that require them to adjust such a penalty if the individual is unable to pay.

“Failure to pay the fines imposed by the justice courts can result in significant consequences for a defendant, including imprisonment until the fine is collected,” said Amelia Starr, a partner at Davis Polk & Wardwell and a co-author of the report. “Our report, which is based on extensive interviews, discussions and a statewide survey, makes it clear that imprisonment for failure to pay fines is not limited to a few counties but stretches across New York.”

The Office of Court Administration acknowledged the report's findings and confirmed that such a problem exists in some town and village courts. A spokesman said they're currently working on a way to track data to develop further training on the issue.

“We appreciate the time and effort that has been put into this report. There is a problem with some of the Town and Village Courts regarding the issuance of warrants and remanding of defendants for their non-payment of the statutory fines and fees,” said Lucian Chalfen, the OCA spokesman. “We are in the process of upgrading our ability to track data on a more centralized basis from Town and Village Courts which will enable us to further focus training on problematic areas.”

The findings were generated after hearing from a focus group of town and village justices from across the state, conducting more than two dozen interviews, surveying defenders who appear in those courts, making an in-person visit to a local justice, and filing several freedom of information requests to county jails.

Through that research, according to the report, the group found that, rather than conduct an inquiry into the defendant's ability to pay or consider alternate remedies, town and village justices commonly incarcerate those individuals or issue bench warrants. The report said the practice could be viewed as the “crime” of indigence.

Both U.S. Supreme Court precedent and a section of the state's criminal procedure law require judges to consider a defendant's ability to pay a fee or fine before imposing a harsher penalty, such as incarceration, the report said.

The landmark decision in Bearden v. Georgia from the U.S. Supreme Court in 1983 specifically said that a court has to make a factual determination based on evidence that a defendant has the resources to pay a fee or fine before sending them to jail for nonpayment. The decision essentially said it must be shown that a defendant “willfully” chose not to pay a fee or fine, even though they had the money to do so.

The state's criminal procedure law, at section 420.10(5), requires a similar practice. The law essentially says that when a defendant is unable to pay a fine, they can apply to the court for a resentence. If the judge is satisfied the defendant can't pay the fine, they have to either lower the amount or adjust the terms of payment.

OCA has previously provided guidance to courts, in response to both the Bearden decision and state law, cautioning them to conduct an indigence hearing and determine that the failure to pay by the defendant was willful before incarcerating them. Chalfen said the office will continue to provide guidance to local justices on the issue.

“We have and continue to issue guidance further addressing the issue. While Town and Village Justices are not employed by New York State, they must undergo mandated 'Taking the Bench' training at the start of their tenure and return for recurrent training from time to time,” Chalfen said. “A continued focus on Town and Village Courts outside of New York City remains a priority.”

The report, in part, surveyed 95 public defenders and defense attorneys about their experience in town and village courts in relation to the consequences of not paying a fee or fine. Of those surveyed, 73 percent say they were aware of a town or village court that had issued a bench warrant for unpaid fines related to misdemeanors or violations, according to the report.

Nearly two-thirds of the defenders surveyed said those courts “rarely” or “never” considered a defendant's actual ability to pay before issuing a bench warrant, the report said. Of those who said they had observed or represented defendants arraigned on warrants for an unpaid fine, 79 percent said those defendants spent time in jail.

The report included a handful of recommendations that the state Legislature and courts could take to avoid issuing bench warrants and ordering incarceration for unpaid fines.

The first would require the Legislature to amend state law to require that courts conduct an ability to pay hearing before ordering incarceration for failure to pay fines and fees, regardless of whether the defendant requests such a hearing or not. Another recommendation would require that judges consider a defendant's ability to pay at their initial sentencing, rather than having them ask for a resentence.

The report also recommended more frequent training for local justices and the collection of data on practices by OCA, both of which Chalfen said the office was committed to doing. The final recommendation suggested that OCA establish a task force of judges, attorneys, municipal officials, experts and other stakeholders to review the question of fines and formulate new rules and best practices.

“Modern Courts believes that implementation of our recommendations would go a long way toward protecting the Constitutional rights of New Yorkers and respect for New York law,” the report said.

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