In tears, Delaine Wilson walked out of the courtroom. The judge told her to stop crying, but the 49-year-old wept her entire drive home.
Perhaps a tear fell for every dollar of the $44,000 in fines, fees and court costs that were waived in a singular action after 15 years of marginal — but onerous — payments that wouldn’t have achieved a zero balance until Wilson reached age 195.
Amidst fear of re-incarceration, Wilson paid $6,100 despite minimum-wage work, three children, health problems and eventual guardianship of two grandkids. She attained two associate’s degrees at a community college but struggled to secure more lucrative opportunities because her felony conviction couldn’t be expunged until her debt was satisfied.
So on an October afternoon, new Tulsa County Special Judge David Guten forgave her legal financial obligations. In doing so, he removed what she saw as her last obstacle: the justice system itself.
“He said, ‘Don’t you do that. Don’t you cry because it will make me cry, and I still have court,’ ” Wilson recalled with a smile. “I think that’s what we need — more judges who have a heart and want change.”
That moment encapsulates what appears poised to be a hot topic in the upcoming legislative session: A broken justice system overly reliant on court collections from poverty-stricken people that is trying to reform itself but needs help and direction from lawmakers.
A Tulsa County group advocating to reform the entire court collection process believes treating court debt as a civil rather than criminal matter would do more than anything else to prevent Oklahoma from being what many believe is some level of a debtors’ prison system.
“You aren’t going to go to jail for a civil judgment,” said James Hinds, a Tulsa defense attorney and member of the working group. “It’s simply the only surefire way to keep people from going to jail simply because they aren’t coming up with the money.
“It’s not serving social justice, namely using judicial-criminal enforcement on matters that are basically really civil debts.”
The court collections problem isn’t unique to Tulsa, nor Oklahoma, but the issue has been studied here.
Court costs were the fourth most common reason for admission to the Tulsa County jail in 2016, with five days being the average length of stay, according to a Vera Institute of Justice study in 2017. There were 1,163 admissions for court cost and, on any given day, there were 16 inmates being held for that reason.
Vera no longer tracks the data, but a Tulsa World review of booking data found progress since the nonprofit began its analysis. There was a 57% drop in arrests on only failure-to-pay warrants from 2016 (1,079) through 2018 (465).
The Tulsa County judiciary in September launched a seven-day-a-week bond docket to provide individualized bail hearings within 24 hours to the majority of those who are arrested. The protocol is to release people held on a failure-to-pay warrant on their own recognizance with a summons date to a cost docket to address the debt. The new protocol prevents defendants from sitting in jail for days simply because they are unable to afford bail.
Milk vs. court payment
Wilson had been clean nearly seven years when she relapsed with methamphetamine in 2002 after she was laid off from a manufacturing job at age 31.
A year and a half later, she and her then-husband were charged with manufacturing a controlled substance, child endangerment and possession of drug paraphernalia.
She clearly remembers the instruction she received from the judge who accepted her guilty plea in 2004: “I’m releasing you on seven years probation and a $50,000 fine. I don’t expect you to ever pay it off, but just keep making your payments.”
Usually, she mailed in payments each month between $5 and $50. Other months she didn’t.
She regained custody of her children — ages 16, 14 and 12 — after four months. Sometimes her choice was money for groceries or utilities, not court debt.
“If I don’t pay it, I’m gonna go to jail. You know what I mean?” Wilson said. “It makes it even more stressful.”
There were two bench warrants for court costs issued against her, one which she got wiped clean by depositing a $500 paycheck at the courthouse instead of the bank. Some years the court clerk’s office took her state tax refund even though she was on a payment plan.
“I just didn’t feel like I was ever going to get out from under it,” Wilson said. “It wasn’t ever going to be gone or better. It was always going to be there.
“When (the judge) said, ‘I know you’ll never get it paid off, just make your payments,’ I wish at that moment I would have said something. But it was just, ‘Thank God I’m getting out. I’m not gonna have to go to prison for the seven years.’ At that moment it’s like, ‘Man, that’s a lot. But oh well. I guess I’ll just pay on it the rest of my life.’ ”
As administrative director of the courts for the past four years, Jari Askins sits on the governor’s Criminal Justice Reentry, Supervision, Treatment and Opportunity Reform Task Force — or RESTORE.
In a recent Senate interim study on fines and fees, Askins said tells judges about people she’s heard from on probation or parole who were picked up in the 2010s on traffic ticket costs resulting from the 1990s.
That shouldn’t happen, Askins said, explaining how she has been around long enough to have seen when that wasn’t the practice.
“But the impact that can occur and what we need to be doing I think directly relates to fees and fines, because even the fines sometimes in statute is a singular amount,” she said. “If they are convicted of X crime — let’s say trafficking maybe or something — it may be a $10,000 fine. That may not be appropriate for the individual that’s in front of the court. There may absolutely not be any possibility of paying that.”
She has been educating judges that state law already allows them to turn a legal financial obligation into a civil judgment in instances where they recognize the debt won’t be collectable in a criminal case.
“You can still collect as a civil judgment, you collect as a hearing on assets, or you might collect as a garnishment action,” Askins said. “But the important thing is, as a civil judgment, you cannot issue a bench warrant for failure to pay.”
Court collection reform
The court collection matter can be boiled down to a couple of fundamental points.
The number and amount of court costs and fees have skyrocketed; and the method of collection disproportionately incarcerates poor people. Several people who are a part of the justice system have told the Tulsa World it will take legislative action to address the issues.
Steve Lewis, former U.S. attorney and Speaker of the Oklahoma House of Representatives, said the ultimate goal is to create a system in which no person can be jailed for court costs.
Lewis is the Tulsa County working group’s lobbyist. Supported by QuikTrip co-founder Burt B. Holmes, other group members include: retired Oklahoma Supreme Court Justice Dan Boudreau; former Tulsa County Presiding District Judge William Kellough; public relations executive Steve Turnbo; Tulsa County Assistant Public Defender Glen Blake; and Open Justice Oklahoma director Ryan Gentzler.
Lewis has spoken with some legislators but none has committed to sponsoring the group’s proposed bill. However, there is no problem finding interest in it, he said.
“It may not look exactly like what we’re proposing, but I think we can make progress,” Lewis said, adding that he believes there will be a sponsor for it in the session.
The draft legislation would require courts:
• Disclose to defendants the total amount of fines, costs, fees and assessments before accepting a plea deal;
• Hold a hearing anytime a financial obligation is imposed on a defendant to determine the person’s ability to pay;
• Issue a summons — not a warrant — to hold a hearing to determine if nonpayment is willful;
• Order community service, lower or waive court costs or turn the debt into a civil judgment when a defendant is unable to pay without undue hardship; and
• Issue a warrant for failure to appear — not for court costs — in the event a person doesn’t show up to the hearing to determine reasons for nonpayment.
‘Silly way of collecting debt’
A government doesn’t necessarily have to handle debt in civil court but generally that route is more humane and effective than criminal court, according to Lisa Foster, co-director of the Fines & Fees Justice Center, a national reform advocacy group.
Foster said what matters most is that judges inquire about a person’s ability to pay before imposing assessments. Then set reasonable payment plans, community service hours or reduce or waive costs.
Otherwise, she said, a cash-strapped person will end up missing a payment or court date and be penalized more harshly for what could be issues outside of their control. Perhaps a child became sick, or work wouldn’t allow for leave. Maybe he or she simply forgot.
“We shouldn’t be making people come back to court all the time,” Foster said. “That’s a silly way of collecting debt. But that’s what happens when you collect in the criminal court system.”
Additionally, government incurs its own costs in trying to collect debts.
Vera Institute of Justice studied New Orleans and found that in 2015 the city spent $6.4 million detaining people who were unable to pay and collected $4.5 million in bail and bond money, as well as fines and fees.
In other words, New Orleans lost $1.9 million dollars — a conservative calculation. The analysis didn’t include costs of monitoring payment, enforcing nonpayment or hours logged by court clerks, judges, collection staff and police officers.
Vera didn’t perform that level of analysis in its study of Tulsa County.
Cite- or book-and-release procedure
Vera Institute recommended law enforcement officers in Tulsa County have the option to issue citations for state misdemeanors — such as failure to pay — directly to district court as an alternative to arrest.
Another alternative would be a book-and-release procedure in which a person goes through the booking process but then is released.
Nearly 2½ years ago, Vera Institute noted that the Tulsa County District Attorney’s Office already was working with local law enforcement to develop such a mechanism.
However, Tulsa County Public Defender Corbin Brewster said that process appears to be a “very low priority” for prosecutors, given it still doesn’t exist.
“We worked to negotiate as broad a book-and-release policy in Tulsa County as we could, and the DA’s Office opposed that policy and promoted as many exceptions as they could,” Brewster said. “So we didn’t see eye to eye on a book-and-release policy in Tulsa.
“I would not characterize there being cooperation between the DA’s Office and local law enforcement on a citation process, because I have not seen that in the last 2½ years.”
Tulsa County District Attorney Steve Kunzweiler in an email said he was discussing various options with Vera Institute, which was interested in ways to lessen downstream consequences of arrest and avoid loss of employment.
Kunzweiler said his office interacts with investigative and judicial entities on a daily basis but doesn’t dictate how they operate anymore than they do in reverse. He said that is a necessary check and balance of the criminal justice system.
“One of the recommendations I made to address this matter is for the courts to issue a ‘personal recognizance bond’ warrant on failure to pay warrants,” Kunzweiler wrote. “In essence, if an officer encounters a person who has a failure to pay warrant, the individual could be quickly processed on the warrant, ordered to appear at a future court date, and released.”
Maj. Laurel Roberts, division commander of Tulsa Police Department’s special operations, said officers have discretion in the field over whether to arrest someone on a court cost warrant or let them go. But Roberts emphasized a bench warrant is a mandate from a judge to arrest an individual and that there is no cite-and-release or book-and-release option.
In a typical year, Brewster said 70% of felony cases are taken by public defenders after a judge holds a hearing to evaluate a defendant’s financial status and determines he or she can’t afford an attorney.
Tulsa County is on pace for 6,300 felony cases this year, of which well over 4,000 will be handled by a public defender, he said.
“Those are the same people that we’re trying to collect thousands — millions — of dollars from in terms of court costs, fines and fees that are assessed when they resolve their criminal case,” Brewster said. “So the assessment of these costs and the collection of this money by the courts is being imposed on the poorest people in our community, and the people we already have evaluated in a court of law as indigent for the purposes of appointment of a public defender.”
Brewster wants to see arrests for failure to pay stop immediately and then perform a systematic cleansing of backlogged debts.
He said there should be a docket established to wipe out the worst cases after a judicial review to determine the age of the debt and the probability of collection. Then more recent cases should be evaluated for conversion to civil judgments, allowing the tools and protections of civil court, such as poverty and hardship exemptions, to protect people.
“There’s no discretion at the street level by the police,” Brewster said. “I’m not blaming them — they have a court order they’re complying with — but we’re arresting individuals that end up making them more vulnerable to crime themselves. It makes no sense from a public safety standpoint.”
Guten, who was appointed a Tulsa County District Court special judge in February, said there are tradeoffs between handling court collections in criminal court or through civil processes.
For example, he said, criminal judges can’t garnish wages, but that can happen in civil courts.
He said he would support a plan that implements either a cite- or book-and-release process for those with only delinquent court debt. He also would like to see a debt forgiveness or incentive program to take care of old warrants.
“I know that’s one of the things that we really have talked about and are looking into is how best to do away with all these outstanding warrants — these old warrants, getting rid of them — and trying to kind of start fresh,” Guten said.
A ‘humanistic approach’
A couple of month’s of unsigned bench warrants for failure to appear at cost dockets were piled up in a basket on a corner of Judge Guten’s desk during a recent interview.
Guten said he sits on those types of warrants for awhile. He checks court records to see if any of the defendants voluntarily come in to the cost desk after missing the docket, in which case he will trash the warrant.
Or if a person has another open case, he emails the assigned judge to have the judge direct that person to visit the cost desk to sign up for a payment plan before leaving the courthouse.
“We really do try to avoid them unless there’s just no other way to get them to come back,” Guten said of court cost-related warrants, which he described as the only mechanism he has to get a person in front of him to address delinquent court debt.
The cost docket he handles is Tuesday and Friday afternoons each week.
During one in October, a man visited with Guten prior to the docket. He told the judge he had walked from Broken Arrow and needed to handle the matter quickly so he could return before dark.
During the docket, Guten emphasized individually to each person the importance of showing up. He said no one present would be arrested for not paying, and he noted that he can adjust payments downward or suspend them if hardships arise.
One 45-year-old woman had been arrested in June on a failure-to-pay warrant. She returned to see him in August, having performed 60 hours of community service.
“Today is better than the last time I came here,” she told him, explaining that she had found a full-time logistics programming job. Now she was catching up on mortgage and car payments, as well as medical bills.
They agreed to a $50 monthly payment plan, which Guten said he would match if she stays up to date on it — an offer he made to each person that day.
“So we’re effectively cutting your bill in half if you stay current and consistent,” he reminded her.
Afterward in his chambers, Guten said he tries to encourage people and rewards those who do abide by their payment plans by offering incentives.
“When you give somebody hope and show there’s a way out — a positive end to the circumstances they’re in — they want to do more,” he said.
Guten referenced Delaine Wilson, with whom he visited during an impromptu hearing for relief from court debt prior to the cost docket that day. He said there’s a balance between upholding the law and exercising his flexibility as a judge, and taking a “humanistic approach.”
Wilson had pleaded guilty, complied with seven years’ probation and paid “way more” of her $50,000-plus in court debt than most people do, he said.
“She owed a lot of money, there’s no doubt about that, but she deserves a second chance,” Guten said. “And we would not be able to give that to her if we were to leave her on the current (payment) schedule.
“She deserves a chance to go off and do something good with her life, far greater than what she’s able to do today because we’re the thing that’s holding her back.”