SB36 By Senator Sanders RFD Judiciary Rd 1 07-FEB-17

SYNOPSIS: This bill would create the Fairness in Enforcement of Fines and Fees Act and would require all courts within the State of Alabama and all municipal or other governmental entities to comply with basic constitutional principles relevant to the enforcement of fines and fees, including due process, equal protection, and right to counsel.

This bill would prohibit a person from being incarcerated for nonpayment of fines or fees without a prior indigency determination and would provide the person with certain notifications.

This bill would require a person charged with a traffic violation or minor misdemeanor be provided with adequate information, including the charges against him or her and the options he or she has for resolving the charges.

This bill would require a court to proportion all fines, fees, and costs imposed by the court when a sufficient showing of indigency has been made and would require the court to consider alternative sentencing, such as payment plan options or community service in lieu of paying fines and fees.

This bill would require notice regarding the waiver of posting certain bonds based on the inability to pay and would require meaningful notice and adequate representation, including counsel, in cases where the enforcement of fines and fees could result in imprisonment.

This bill would prohibit the use of arrest warrants as a means of coercing payment of a court debt and prohibit arrest warrants from being issued in response to the inability of a person to pay a fine or fee.

This bill would provide that if a defendant fails to make a court appearance the court would have to conduct a hearing on why a warrant should not be issued and include an assessment of the ability of the person to pay any pending fine or fee.

This bill would require a court to provide notice of a show cause hearing through first class mail, at a minimum, and would require the court to attempt to make contact with the person by telephone or text message if available.

This bill would prohibit bail or bond practices that cause a person to remain incarcerated solely because he or she cannot afford to pay for his or her release and would require that a person arrested for an initial violation of law or on an outstanding warrant receive a court date and be released on his or her own recognizance within a certain time frame under certain conditions.

This bill would provide that the failure of a person to appear or pay a fine in a case involving a traffic violation or minor misdemeanor may not be grounds for suspension of the driver's license of the person and would provide for immediate reinstatement of the driver's license of any person whose driver's license has been suspended for failing to appear or pay a fine in such cases.

This bill would require prosecutors to operate impartially and independently from courts and would require the prosecutor, not court staff, to perform prosecutorial duties.

This bill would require a municipality to ensure the sufficient independence of its municipal judges to avoid impropriety and existing or potential conflicts of interest.

This bill would require certain notice requirements regarding diversion from the justice system be made to a person with a mental illness or intellectual or developmental disability.

This bill would require courts and municipal or other governmental entities to provide appropriate training on safeguarding against unconstitutional practices by its staff and private contractors.

A BILL TO BE ENTITLED AN ACT

Relating to the enforcement of fines and fees by courts within the State of Alabama; to create the Fairness in Enforcement of Fines and Fees Act; to require all courts and governmental entities to comply with basic constitutional principles relevant to the enforcement of fines and fees, including due process, equal protection, and rights to counsel; to prohibit a person from being incarcerated for nonpayment of fines or fees due to indigency; to provide certain notice requirements; to require proportional fines, fees, and costs under certain conditions; to provide for alternative sentencing; to restrict the use of arrest warrants as a means of coercing payment; to further provide for show cause hearing notice requirements; to prohibit a person from being held on bail or bond solely because he or she cannot pay for his or her release; to limit the grounds for the suspension of a driver's license of a person; to require prosecutors to perform prosecutorial duties; to require municipalities ensure the independence of its municipal judges; to require certain notices to a person with a mental illness or intellectual or developmental disability; and require training on safeguarding against unconstitutional practices under certain conditions.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. This act is known and may be cited as the Fairness in Enforcement of Fines and Fees Act.

Section 2. (a) No person shall be incarcerated for nonpayment of fines or fees without a prior indigency determination establishing that the failure to pay was willful rather than based on inability to pay.

(b) A person charged with a traffic violation or a minor misdemeanor shall be provided with oral and written notices and shall be provided ability-to-pay determinations consistent with the following requirements:

(1) The person shall be provided with adequate and reliable information regarding the charges brought against him or her, the options and requirements for resolving the charges, and the consequences for failing to resolve the charges in a timely matter.

(2) The citation, summons, arrest notification form, and other charging documents shall contain, or at a minimum be contemporaneously supplemented with, a separate document that contains clear and detailed information regarding the rights and responsibilities of the person charged, including all of the following information:

a. The specific violation charged.

b. The options of the person for addressing the charge, including whether an in-person appearance is required or if alternative methods, including online payment, are available.

c. Information regarding all pending deadlines.

d. A clear statement notifying the person of the right to challenge the charge in court and instructions regarding how to do so.

e. The exact date, time, and location of the court session at which the person must or may appear.

f. Information regarding how to seek a continuance for a court date.

g. The specific fine imposed, if the charged offense has a preset fine.

h. A clear statement that the person is entitled to have the amount of the imposed fine proportioned to the ability of the person to pay.

i. The range of possible penalties for failing to meet court requirements.

j. Clear instructions regarding how to acquire information regarding a pending charge, including how to contact a clerk of the court by phone and in person.

(c)(1) A court shall affirmatively inquire as to the financial capacity of a person prior to initially assessing fines, fees, and costs.

(2) When a sufficient showing of indigency is made based on the completion of a standard affidavit by the person under penalty of perjury, without requirement of further proof, the court shall proportion all fines, fees, and costs imposed by the court to the financial resources of the person.

(3) Objective and consistent criteria shall be established for proportioning fines, fees, and costs to the income of a person in cases where the person makes sufficient showing of indigency.

(4) The objective and consistent criteria shall take into account the income of the defendant and shall also consider any documented fines or fees owed to other courts.

(5) Ability-to-pay determinations shall be conducted prior to the court imposing an initial fine or fee, upon any increase in the fine or related court costs and fees, and upon the request of a person for an ability-to-pay determination at any point in a case.

(6) No more than a single assessment shall be imposed for court costs and fees for all traffic violations arising from any one stop or arrest, unless separate court proceedings are necessary and held.

Section 3. (a) A person unable to pay fines and fees shall be provided with appropriate alternatives to incarceration, including reasonable installment payment plan options and community service, consistent with the following requirements:

(1) The person shall be provided with the option of performing community service in lieu of paying fines and fees.

(2) A community service program shall establish reasonable rates at which community service is credited against pending fines and fees and shall establish reasonable time periods for the completion of community service obligations that take into account the existing employment and familial obligations of the person.

(3) The person shall be provided with the option of a court-managed payment plan for reasonable periodic payments, which shall include all of the following:

a. An ability-to-pay determination to assess a periodic payment amount that is reasonable in light of the financial resources of the person.

b. Procedures for the person to seek a reduction in the periodic payment amount.

c. Procedures to allow the person, without appearing in court, to seek requests for extensions of payment obligations, to be granted upon a showing of good cause.

d. Opportunities each month, at varied days and times, for the person on the payment plan to appear before the court to petition the court for a modification or extension of the payment plan or for other relief.

(b) If a person fails to timely fulfill a community service obligation or fails to satisfy a court debt within the time frame allotted by a court payment plan, the court shall collect the outstanding debt in a manner consistent with the processes set forth in this act.

Section 4. (a) Access to a judicial hearing or appeal may not be conditioned upon the prepayment of bonds, fines, or fees.

(b) A person shall be provided with notice of the availability of waivers of the requirement for posting appellate bond based on his or her inability to pay, and the person shall be granted the waiver if it is determined that he or she is unable to pay.

Section 5. A person shall be provided with meaningful notice and adequate representation, including counsel in cases which may result in imprisonment, in the enforcement of fines and fees.

Section 6. (a) An arrest warrant may not be used as a means of coercing the payment of a court debt when the person has not been afforded constitutionally adequate procedural protections.

(b) An arrest warrant may not be used as a means of collecting a court debt.

(c) An arrest warrant related to a traffic violation or a minor misdemeanor may be issued, if at all, only after all other mechanisms available for securing the appearance of a person in court have been exhausted.

(d) An arrest warrant may not be issued in response to the financial inability of a person to pay a fine or fee.

(e) A court shall meet all of the following minimum requirements:

(1) A person who has missed a required court appearance or payment with notice of the missed requirement, shall be provided notice of a new court date or payment deadline, and shall be provided notice of the potential consequences for failing to satisfy the subsequent requirement.

(2) If a person fails to satisfy the subsequent required court appearance, the court shall conduct a hearing on why a warrant should not be issued, including an assessment of ability to pay any pending fine or fee. The court may not issue a warrant for a person who appears at the show cause hearing.

(3) A court shall provide effective notice of any motion for an order to show cause, at a minimum, through first class mail, and shall attempt to contract the person by telephone or text message if the contact information is available.

(f) If the mechanisms provided by this section are unsuccessful at securing payment or otherwise resolving the case, the court may issue an arrest warrant and, upon arresting a person pursuant to an outstanding arrest warrant, the detention of the person shall comply with all of the requirements of this act.

Section 7. (a) Bail or bond practices that cause a person to remain incarcerated solely because he or she cannot afford to pay for his or her release are prohibited.

(b) No person shall be held in custody after an arrest because the person cannot afford to post a monetary bond.

(c) A fixed monetary bond schedule may not be used to detain persons who are determined to be unable to pay.

(d) A person arrested for an initial violation of law or an outstanding warrant shall receive a court date and be released on his or her own recognizance as soon as is practicable after booking, and in any case within 12 hours of booking.

(e)(1) In circumstances where a person who is arrested has a documented history of failing to appear for a required court appearance, an unsecured bond not to exceed one hundred dollars ($100) may be required prior to release.

(2) In such circumstances, the person who is arrested shall be provided with the option of pleading guilty and paying the amount of the fine without needing to subsequently appear in court, unless the person is charged with an offense for which an in-person appearance is otherwise required by law.

(f) If the person cannot or does not elect to resolve the charge through payment of a fine, the person shall:

(1) Be provided with a new court date.

(2) Be clearly instructed that failure to appear as required may result in an assessment of the amount of the unsecured bond.

(3) Prior to the assessment, be provided a show cause hearing as to why the unsecured bond may not be assessed, with actual notice to the person.

(4) In no case be required to pay the bond amount prior to release.

(g) A person who is arrested for assault or threatening conduct, including assault on a law enforcement officer, or who presents a danger to a victim, the public, or any other person, may be held beyond 12 hours, provided that both of the following requirements are met:

(1) The chief law enforcement officer or his or her designee shall authorize the detention beyond 12 hours.

(2) A person held beyond 12 hours shall be brought before a court within 24 hours of arrest.

Section 8. (a) The failure of a person to appear or pay a fine in a case involving a traffic violation or minor misdemeanor may not be grounds for suspension of the driver's license of the person.

(b) In cases where the driver's license of a person has been suspended for failing to appear or pay a fine in a case involving a traffic violation or minor misdemeanor, reinstatement letters shall be sent immediately and the reinstatement letters may not be conditioned upon payment of outstanding fines or fees in full.

Section 9. (a) A court shall operate impartially, independently from the prosecutor, and in a manner that eliminates existing and potential unlawful conflicts of interest.

(b) The prosecutor, not the court staff, shall perform all prosecutorial duties, including, but not limited to, all of the following:

(1) Maintaining case files separate and apart from those maintained by the court.

(2) Reviewing case files and filings.

(3) Setting fine recommendations.

(4) Responding to all discovery requests.

(5) Prosecuting all charges by information.

Section 10. A municipality shall ensure that a municipal judge appointed to serve on a municipal court is sufficiently independent to avoid impropriety, the appearance of impropriety, and existing or potential conflicts of interest.

Section 11. A person with a mental illness or an intellectual or developmental disability shall be provided with information about his or her available options for diversion from the justice system.

Section 12. A court and a municipal or other governmental entity has the duty to safeguard against unconstitutional practices by court staff, staff of the municipality or governmental entity, and private contractors, including the duty to provide appropriate training.

Section 13. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Courts

Fees

Due Process

Constitutional Law

Equal Protection

Counsel

Traffic Offenses

Misdemeanors

Indigents