Chief Justice Maureen O'Connor
Mayors Association of Ohio
June 14, 2017

Good afternoon.

Thank you Kent (Scarrett, Ohio Municipal League executive director) for that introduction, the invitation to speak at this annual conference, and for your leadership of the municipal league. I’m pleased to be here.

I want to address one of the nation’s most fundamental access to justice issues: so-called “Debtors’ Prisons” because you may be unwittingly playing a role.

You no doubt are familiar with this issue in reference to Ferguson, Missouri, and the U.S. Dept. of Justice findings that the city’s municipal court focused on raising revenue rather than public safety needs.

So what is the judiciary doing about the problem of collecting fines and fees from offenders who do not have the means to pay?

One major initiative involves the work of the National Task Force on Fines, Fees and Bail Practices, which was established by the Conference of Chief Justices and the Conference of State Court Administrators.

The task force seeks to address the ongoing impact that court fines, fees, and bail practices have on economically disadvantaged communities across the United States.

I serve as co-chair with Kentucky State Court Administrative Director Laurie Dudgeon

As co-chairs, we created three working groups:

Access to Justice and Fairness.

Transparency, Governance & Structural Reform.

and Accountability, Judicial Performance and Qualification, and Oversight.

Here is a sampling of issues the task force is addressing:

The drafting of model statutes, court rules, policies, processes and procedures for setting, collecting, and waiving court-imposed payments.

Compiling and creating best practices for setting, processing, and codifying the collection of fines, fees, bails, and bonds.

Reviewing and revising suggested guidelines for qualifications and oversight of judges in courts created by local governments or traffic courts, including reviewing and updating state codes of judicial conduct and the jurisdiction of judicial conduct commissions to ensure their applicability to all judges.

One of the task force’s deliverables was a bench card for judges nationwide. It better educates judges about appropriate financial sanctions and obligations that can be levied in court.

The U.S. Department of Justice is also deeply involved on this issue. DOJ workshops/meetings have covered the momentum of the reform efforts and the identification of justice system practices that contribute to the cycle of poverty and prevent successful reentry efforts.

In Ohio, we’ve been hard at work attacking this problem for a while.

In 2013, the ACLU of Ohio met with me, our staff, and judges to discuss its findings in “The Outskirts of Hope.” The report alleged unconstitutional practices of the collection of fines and costs in seven counties. None of us want the public to perceive justice in this manner, so engaging our critics was essential to solving the problems.

We took an active role on several fronts to educate judges and court personnel regarding state statutes and case law about the collection of court costs and fines. Courses were presented at judicial association meetings to raise awareness of the problems and present solutions.

We developed an adult court bench card for judges in 2014 – the first one in the nation – in consultation with a workgroup of judges.

Intended as a reference guide, the bench card briefly explains the differences between court costs and fines, when enforcing fines by incarceration is appropriate, and the process for a court to substitute community service as payment for court costs. It also includes citations to state statutes and court cases.

The bench card begins with a general statement about fines and court costs and appropriate collection methods:

“Fines are separate from court costs. Court costs, restitution and fees are civil, not criminal, obligations and may be collected only by the methods provided for the collection of civil judgments. Sole authority exists under R.C. 2947.14 for a court or magistrate to commit an offender to jail for nonpayment of fines in a criminal case. An offender CANNOT be held in contempt of court for refusal to pay fines. Accordingly, unpaid fines and/or court costs may neither be a condition of probation, nor grounds for an extension or violation of probation.”

In 2016, we made available a similar bench card for juvenile courts.

The juvenile court bench card briefly explains the fine schedule per type of offense, assessing obligations on parents for the delinquent acts of a child, and the process for a court to substitute community service as payment for court costs. It also includes citations to state statutes and court cases.

Also in 2016, we made available a bench card regarding sealing criminal records and the proper steps to take to waive fees for those who can’t afford to pay them.

The reference guide – developed by Supreme Court staff and a local judge – seeks to better educate the judicial branch about who is eligible to have a record sealed, when an offender may apply to have his record sealed, the fees that can be charged, and when a filing fee is not required.

The bench card also briefly outlines the elements of the state statute that governs the sealing of a criminal record and provides sample language for courts to waive the application fee because of indigency.

For more than three years, the Supreme Court has used judge association meetings, Judicial College courses, and less-formal settings to educate judges and court personnel about the issue. We intend to raise this issue at every turn, so no Ohio judge is unaware.

To be clear, I know that Ohio’s judges agree with me that courts are not to be used as an ATM for city council.

A recent story in the Findlay newspaper highlights the difficult position many judges are in.

Findlay Municipal Court seeks to end the culture of “put it on my tab,” and start collecting unpaid court fines and costs.

At the end of 2016, offenders owed the court $11.7 million in outstanding fines and costs. Back in 2010, that tab was $2.8 million.

Earlier this year, the court began using other methods to collect on the debt. But, by law, the court must follow specific guidelines.

Judge Jonathan Starn told the newspaper that the court is not some super collection agency. “Our hands have really been tied in the last few years,” he said.

This article – and others – leave the impression that judges have a responsibility to collect fines and costs. Again, to reiterate, collecting courts costs is NOT a judicial responsibility. This attitude furthers a wrong-headed assumption that courts serve as ATMs and affects the public’s perception about fairness in courts.

Judges do not give convicted criminals a free pass, but accountability for criminal behavior must be considered on an individual basis with many factors, including the ability to pay a fine, factored into their individual decisions. When we accomplish this, I am convinced that public faith in the fairness of our judicial system will increase dramatically.

I asked the statewide municipal court judges association in January to drive home to their funding authorities that municipal and county courts are not an extension of the executive branch. I reminded them that they preside over an equal and separate branch. When we accomplish this, I told them, they will be free from unrealistic community expectations.

As another way to draw attention to the issue, PBS’s Tavis Smiley filmed an episode of his “Courting Justice” series in Cleveland in December.

One of the judges who appeared on the panel, Cleveland Municipal Court Judge Ron Adrine, has been a leader on this issue.

In December, Judge Adrine announced that the Cleveland Municipal Court would implement an assessment system to set bail based on the likelihood of whether a suspect would skip bail or commit a crime if released without bail.

The assessment tool was developed by the Laura and John Arnold Foundation.

Judge Adrine is hopeful that by using the public safety assessment tool, the court would continue to bolster public safety and ensure that only those who pose a significant risk are detained, and those who can be safely released are able to be productive members of our community while they await their court date.

A foundation representative also applauded the initiative noting that unnecessary pretrial detentions put a major strain on local budgets and have an enormous impact on defendants’ lives.

I couldn’t agree more, and I have encouraged other courts to consider using this assessment tool.

The main reason that I wanted to speak in front of this group today was to solicit your help in turning around this wrong-headed notion.

Whether it’s intentional or not, courts “feel” financial pressure from local funding authorities.

In these budget-conscious times, it is understandable that you are looking under every rock for additional funding.

However, the co-equal judicial branch of government is not the place to look.

It is the role of the local funding authority to provide adequate funds for courts to operate.

Courts should not be mandated to self-fund from fines and fees.

When government engages in such practices, it acts as a predator.

When government is so dependent on fines and costs that courts must rely on fines and fees for revenue, it’s a violation of due process.

Please know that I have reached out to have a similar discussion with the County Commissioners Association of Ohio.

Only by continuing to raise awareness of the ongoing impact that court fines, fees, and bail practices have on economically disadvantaged communities can we eliminate the practice.

And only by forging partnerships across branches of government about the revenue pressures on courts can we increase understanding.

Ohioans deserve nothing less.

Thank you for your time and attention today. I appreciate the opportunity to have an open and frank conversation about this topic and to communicate directly to league members about my concerns.