Equal-Protection Violations in Bulk - Restitution, Indigency, and Probation Revocation.
by: Rjohnson • July 29, 2012 • no comments
I was in court the other day (no bonus points if you can guess the county.) My client is on probation for a felony property offense with about $5,000 in fines and fees, most of which was a compensatory fine. He's made regular monthly payments as ordered, notwithstanding that he is unemployed. Nonetheless, he was arrested out of the blue on a PV warrant, a few months before his probation would have terminated, because the standard judgment form in that county has a notation that all financial obligations are due 60 days before probation ends. (As an aside, I'm not sure whether imposing that requirement in every case is lawful. It's not a standard condition under ORS 137.540, and it doesn't reflect an exercise of judicial discretion. I doubt it would help to complain in an individual case though.)
Although my client had done everything the court asked him, the court extended his probation for more than three years, to give him plenty of time to pay. So, my client is going to spend six years on probation, when a wealthy person who could pay the restitution would be done after the eighteen months in the original judgment.
I think the court's action was illegal. When an indigent person receives a more serious punishment than a wealthy person, it violates the right to equal protection under the Fourteenth Amendment. See, e.g., Bearden v. Georgia, 461 US 660, 103 S Ct 2064, 76 L Ed 2d 221 (1983). See also State v. Fuller, 12 Or App 152, 504 P2d 1393 (1973) (upholding a statutory procedure for assessing costs to a convicted criminal against an indigency-discrimination challenge, in part because an indigent person may not be sanctioned for failure to pay costs); State v. Davis, 30 Or App 439, 570 P2d 683 (1977) (rejecting argument that, on the facts of that case, the defendant had been unable to pay and therefore had not acted willfully.)
That principle is hard to apply, because there is a lot of distance between a wealthy client who can pay the financial obligations with no difficulty, and a destitute homeless client who needs every nickel to eat. Most people are in between, and in my experience It is rare to have a client who can't pay anything; I have had clients insist to me that they couldn't afford to pay the restitution, but then list the cable bill as one of their necessary monthly expenses.
In my case, my client is making payments, and I think I could prove that he is unable to pay off the full amount. That means that my client is ending up with years more on probation than a wealthy man, and I think that violates Bearden and its progeny. The problem would become a lot more serious if client were later revoked and went to prison, but we might need to attack the probation-extension ruling now rather than collaterally attacking it in a revocation hearing.
The judge was, as far as his reaction could be judged, shocked and appalled that I wanted my client off probation. Rather, the judge thought that my client got a favor because probation was extended instead of being revoked. I don't agree, but it would have been tactically unwise for me to argue with the judge and accidentally talk him into revoking. I'd feel pretty good about the chances on appeal, but not great, and client would have sat in prison until the Court of Appeals decided. The probation-extension ruling happened several times as I was watching, with indigent defendants just staying on probation, not having any problems, but unable to pay off the financial obligations.
I think that legally this issue is pretty simple, but tactically it is hard. It's hard to prove that a particular defendant is unable to pay (and, although the cases are pretty fuzzy, it appears to be the defendant's burden). Complaining about probation-extension could just lead to revocation, and that isn't much help. The judge's power at a probation hearing is tremendous, and it may not help to insist on a ruling on the wealth-discrimination claim. In theory, there is a slightly higher burden to revoke for failing to pay restitution, ORS 137.540(9), but I doubt that is a genuine impediment if the judge really wants to revoke. And if the judge plans to revoke your client anyway, then the wealth-discrimination issue becomes a lot more significant.
With all that said, there are certainly instances where this is an issue worth fighting, and unless someone complains about the constant probation extensions, they will continue to be imposed routinely. That may require a legislative fix, but it needs to stop.
