In October, Oklahoma state Sen. Julie Daniels led an interim study in hopes of finding out more information about the financial needs of government agencies involved in operating the criminal legal system, as well as of those ordered to pay court costs.
Though Gov. Kevin Stitt signed a bipartisan bill this year making State Question 780 retroactive, Daniels said she wanted to make sure it and other well-intended reform measures do not create unintended consequences that could leave the court system without adequate resources to do its job.
“I think there’s a good three dozen fees (set by statute) that go to executive branch entities that don’t have much to do with running the courts or the district attorney’s office or the courthouse,” Daniels, R-Bartlesville, told the Tulsa World. “We really need to look at those. But the other piece is ‘How do you incentivize people to pay what they owe?’”
By the end of the Senate Judiciary Committee’s discussions, there were three possible ideas for reform proposals for the next legislative session: conversion of outstanding costs to civil debt, improved specialization of hearings to determine ability to pay and an upfront notification to defendants regarding exact costs owed.
Charles Koch Foundation senior research fellow Vikrant Reddy, one of the speakers for the study, said there is a nationwide recognition of the “dysfunction” inherent in funding government agencies with revenue collected from fee assessments against justice-involved individuals. And even some who work in or alongside the state’s court system say they are interested in legislative reform of what they view as an often burdensome portion of the broader concept of “justice.”
“The bottom line is it’s a legislative effort, it sounds like, for this to change,” said Randy Proffitt, second deputy for the Tulsa County Court Clerk’s Office. “More clarity, for one, would be a benefit (for us.)”
Proffitt described an initiative two years ago in which his office attempted to reduce defendants’ outstanding debt by offering amnesty to those who brought canned goods or other shelf-stable foods for donation to an area food bank. The program, as he put it, was a “massive success” with a high participation rate, but the District Attorney’s Office put an end to the effort based on its determination that the Court Clerk’s Office did not have statutory authority to waive any portion of court costs.
“Fear is the enemy here because they just don’t know who to trust. If they come before us, all they (the staff) are talking about is costs,” Proffitt said of the issue, telling the World he would personally support the use of summonses in lieu of failure-to-pay warrants.
“We want to do everything we can to help them out, get in front of a judge and get things straightened out.”
A person who is the subject of a failure-to-pay warrant is charged an additional fee for its filing, which Proffitt said can cause an otherwise small debt to balloon and prevent expungement of a criminal record despite completion of all other obligations.
‘We need to set people up for success’
Human Rights Watch released a report this fall that used Tulsa as a case study for policing in the United States. That report determined that “aggressive enforcement” of minor infractions perpetuates unmanageable court debt particularly among the area’s poorest residents, many of whom are people of color. The organization additionally identified arrests for failure-to-pay warrants as a significant component of policing in Tulsa up to at least 2016 and said jail bookings for financial reasons were commonplace.
But in more recent years, the Court Clerk’s Office has recalled such warrants upon receipt of a payment, typically of $250, and establishment of a payment plan.
New Special Judge David Guten presides over a daily morning bond docket and a twice-weekly afternoon cost docket, and multiple World reporters have seen Guten grant partial reductions of debt or suspension of balances for those who appear and detail their hardships.
Oklahoma law requires a “Rule 8” hearing to gauge a person’s ability to pay, but judges such as Guten often do not hear detailed information about defendants’ financial statuses until after they have been identified for sustained nonpayment.
Proffitt said the initial determination of ability can be far away from when a person is legally required to begin making payments following release from prison. He said Guten’s cost docket functions in practice as a “de facto Rule 8” but that clerks do not have the same allowance for discretion as a judge.
Minnesota state Sen. Nick Zerwas, a proponent of fee reform laws, questioned the policy basis behind the establishment of fee schedules such as the one Daniels identified in the interim study.
Zerwas, a Republican, received national attention after he spearheaded reform efforts in the Minnesota Legislature. He said one of the biggest hurdles was anxiety from “state and local bureaucrats” about the money they could lose even though there was bipartisan legislative support in Minnesota for changes.
“What, as a state, are we trying to accomplish? And are we truly accomplishing that?” Zerwas asked during a September symposium in New York City on fines and fees.
“We need to set people up for success, and operating a fine and fee structure that inhibits people from work is so counterintuitive and so punitive that you wonder what the heck the original point was.”
Reddy, from the Koch Institute, said there is also no solid evidence proving the imposition of fees reduces recidivism and that fines tied to offenses should be proportional to the charge. He added that assessment of interest or late charges — a regular instance when Tulsa County defendants’ court debt went to Aberdeen Enterprizes II, a private collection agency named in a pending lawsuit about its practices — could even cause people to abandon attempts to pay. Tulsa County no longer contracts with Aberdeen.
But Trent Baggett with the District Attorneys Council told lawmakers that operation costs for the legal system, including his own agency, are still at least in part funded by court assessments. Despite this, Tulsa County District Attorney Steve Kunzweiler has said multiple times he believes it is “immoral” to fund his office with money collected from defendants in this manner.
Daniels told the World she wants to reduce the state’s dependence on defendants’ payment of fees and thinks the interim study was just the start of “scratching the surface” to find a solution. But she said she thought recent criminal justice reform measures tried to “do everything at once” without adequately considering the consequences.
“Everyone is going to be very protective of their revenue streams,” she said, noting the issue is further complicated by a distinct divide between collection practices in rural jurisdictions and urban ones such as Tulsa County.
“You don’t want to paint people into corners, and then we also have to remember that a judge is there to use his or her judgment,” she said.
When asked about the current Rule 8 statute, Daniels said individualizing the process of determining payment ability is time-intensive for judges and attorneys who routinely have heavy dockets or caseloads. That, she said, was part of her interest in looking at the practicality of making court debt a civil rather than criminal issue, which would require legislative action.
“If you make it a civil debt, you can’t issue a warrant for failure to pay,” Daniels said. “You can’t jail somebody. So they’re not going to be caught up in jail incarceration fees.”
When notified of the possibility of civil court involvement, Proffitt said he believed the idea — while potentially beneficial — could create unintended consequences.
“It would be given to debt collectors and sold off as civil debt,” he said. “We do not collect fines here. We receive them, and that’s a unique qualifier. We don’t make aggressive efforts at collection. We don’t make phone calls to collect fines.”
Daniels said there is no “magic answer” to quickly solve the dilemma but believes the Legislature should take action before there is “federal interference” from higher courts.
“I may move a little slower and more methodically,” she said. “But we’re assessing a lot of money that we’re never going to see, so are we assessing too much to begin with?”
“Let’s say that you’re getting 25 percent of what’s actually owed. But you’re drawing down on some debt even as other people are creating debt. You will recover some of it, but obviously this is a little off-kilter.”