Collateral Consequences

Alabama Bail Bond Tax Should Be Declared Unconstitutional Because It Is Replete with Conflicts of Interest

Republican Ohio Supreme Court Justice Maureen O’Connor:

“Here in Ohio I have spoken out unequivocally that courts are centers of justice, not automatic teller machines whose purpose is to generate revenue for governments, including themselves,”

Apparently, the Alabama Legislature does not agree with this belief.  Check out the number of court cost bills pending before the Legislature at present. Even the non-partisan and typically apolitical Alabama State Bar has stepped into the fray.

Some in Alabama have been priced out of the state court system because of fees added to court filings, many of which don’t fund services for the system collecting the money.

That was the message this week from Suzi Huffaker, legislative counsel for the Alabama State Bar Association, when she spoke to a joint meeting of the Bar Association chapters from Colbert, Franklin and Lauderdale counties.

Huffaker said “Alabama has some of the highest court costs in the nation” because adding fees and fines to court filings has become a way for organizations outside the court system to raise funds.”What has happened is, in funding our courts, they have borrowed money from different places (and) we have increased fines and fees,” Huffaker said. “So now we have put together a piecemeal system that, in fact, I view as we have raised taxes through fines and fees as opposed to raising taxes.”

Statewide, 26 percent of monies collected as court costs were “non-court disbursements.” That totaled $116.6 million in the 2015-16 fiscal year.

A few years ago the Alabama added one such new tax: the Alabama Bail Bond Fee. I have now challenged the constitutionality of this tax in court.

The Code of Alabama sets out a schedule for bail bond fees aka taxes in § 12-19-311. These fees are to be charged on “every bail bond in all courts of this state” with the exception of traffic cases unless it is a “serious” traffic offense. Code of Alabama § 12-19-311(a)(1). The “tax” schedule begins with a filing fee of thirty-five dollars for every bond executed within the state.  §12-19-311(a)(1)(a).

On top of that, each misdemeanor offense carries with it a bail bond “tax” in the amount of 3.5 percent of the total bail bond or one hundred dollars, whichever is greater, so long as the total “tax” does not exceed $450. Code of Alabama § 12-19-311(a)(1)(b). Each felony offense carries a bail bond “tax” of 3.5 percent of the total bail bond or $150 dollars, whichever is greater, so long as the total fee does not exceed $750.  However, those released on their own recognizance, judicial public bail or a signature bond pay a flat fee of twenty five dollars.

Contempt proceedings may be initiated for failure to pay the fee, whereupon additional fines may be imposed. Code of Alabama § 12-19-311(d). Moreover, bail bond fees may not be “remitted, waived or reduced unless all other costs, fees, and charges of the court are remitted or waived.” Code of Alabama § 12-19-311(e)(4).

Pursuant to collection, the thirty-five dollar filing fee is distributed as follows: forty-five percent to the court clerk’s fund, forty-five percent to the Solicitor’s Fund and ten percent to the Sheriff’s fund. Code of Alabama § 12-19-311(f). The bail bond fees are distributed as follows: $21.50 to the Sheriff’s Fund; forty percent of the remainder to the court clerk’s fund, forty-five percent of the remainder to the Solicitor’s Fund and ten percent to the Alabama forensic Services Trust Fund. Code of Alabama § 12-19-311(g). Those funds distributed to the district attorney are to be used for “the payment of any and all expenses incurred by the district attorney in the discharge of his duties of the office or for any legitimate law enforcement purpose” while the fees distributed to the court clerk are to be used “at the discretion of the clerk, to support the functions of the office of the clerk.” Code of Alabama § 12-19-312(a)(b). The money in the Circuit Clerk’s fund shall be used “for the support of local court operations, including, but not limited to, salaries and benefits of court employees where necessary for the efficient operations of the courts.” Code of Alabama § 12-19-310(e)(1). The Circuit Clerk may also use money in the Circuit Clerk’s fund “for the purpose of awarding merit and promotions raises to full-time employees of the clerk’s office.” Code of Alabama § 12-19-310(e)(2).  It is the Clerk who sets the value of bail in each case, the money from which is used to provide funding for the Clerk’s office.

Both the Sheriff, the District Attorney and the Circuit clerk, then, have a structural financial interest in the imposition and collection of bail bond fees. This financial stake creates a conflict of interest for all three offices. Since the Clerk both sets the bond and benefits from the bail bond fee, a potential conflict arises from the temptation to impose higher bonds in order to receive a higher amount from each case. Since the bond fee for a recognizance bond is capped at $25, a potential conflict of interest for the District Attorney arises in the temptation to oppose recognizance and other low bonds in order to obtain a higher amount from the collection of bond fees for misdemeanors or felonies. And the Sheriff is financially incentivized to make arrests in lieu of release on recognizance.

The Supreme Court of the United States has held repeatedly that financial assessments, such as the one imposed by Alabama’s bail bond “tax,” may violate the Due Process Clause of the Costitution if such assessments create a “possible” financial conflict of interest, either personal or structural, or even just a “temptation” which would undermine the defendant’s right to an impartial judicial system. Tumey v. Ohio, 273 U.S. 510 (1927); Ward v. Village of Monroeville, 409 U.S. 57 (1972).

In Tumey, the mayor of the town was responsible for trying the case and also received “the amount of his costs in each case, in addition to his regular salary, as compensation for hearing such cases. But no fees or costs in such cases are paid him except by the defendant if convicted.” Tumey, at 520. The Supreme Court of the United States held that “Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused” is a violation of the Due Process Clause. Id. at 532.

In Connally v. Georgia, 429 U.S. 245 (1977), the Supreme Court extended Tumey from mayors to magistrate judges. In that case, the magistrate testified that he became a justice of the peace “primarily because he was interested in a livelihood”, that there was no salary involved, that his compensation was directly tied to the number of warrants he issued, and that from January 1, 1973 until the date of his testimony, he had issued approximately 10,000 warrants for either search or arrest. The justice of the peace collected no money if the warrant was not issued.  The Supreme Court concluded that the rationale from Tumey and Ward was applicable to Connally.  Because the financial welfare of the magistrate was “enhanced” by issuing warrants and not enhanced by determining that no warrant should be issued, it offered the “possible temptation” which was a violation of the Due Process rights of the accused, because the magistrate had a “direct, personal, substantial, pecuniary interest” in the scheme. Thus due process is violated when there is a personal financial benefit from the assessments, as there is for the Circuit Clerk and staff, since money may be used to grant raises and provide salaries.

In Ward, a major portion (at times over half) of the village’s annual revenue was brought in through fees and fines collected from ordinance violations and traffic offenses.  These cases were presided over by the mayor of the town.  The State attempted to argue that the fact that such a large percentage of funds came from the mayor’s court did not rob him of his ability to be impartial.  The Supreme Court of the United States disagreed, holding that “the test is whether the mayor’s situation is one ‘which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused.’”  The Court held that the mayor’s responsibility for town finances, as the village’s chief executive, provided a temptation to “maintain the high level of contribution from the mayor’s court.” The mayor’s occupation of “two practically and seriously inconsistent positions, one partisan and the other judicial [and] necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him.”  Thus, due process may be violated even where there is no personal financial benefit from the assessments, such as the situation where the District Attorney’s office is benefitted by the collection of bail bond fees and thus, necessarily, has a temptation to oppose recognizance and lower bonds.

Proof of an actual conflict of interest is unnecessary, as demonstrated in the case of Brown v. Vance, 637 F. 2d 272 (5th Cir. 1981). The test is to be leveled at the system, itself, rather than at the individual judge.  The mere possibility of bias, then, is sufficient to violate due process. The Brown court held that the compensation system for judges in two Mississippi counties created an incentive for judges to favor the State in criminal cases. Judges were compensated regardless of whether the defendant was convicted or not, however, their compensation was also tied to the number of cases filed within the individual judge’s court.  While officers were supposed to assign cases to judges evenly, statistics showed, and the Chief of the Mississippi Highway Patrol, admitted that officers were more likely to assign a case to a judge whom they believed would be more likely to convict the defendant. Citing Tumey and Ward, the 5th Circuit held that there was no need to show either “actual judicial prejudice” or “direct pecuniary interest” because the system itself caused “possible temptation to the average man as a judge to forget the burden of proof required to convict to the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused.” The Mississippi fee system was found to violate the due process rights of criminal defendants.

The Sixth Circuit ruled similarly in DiPiero v. City of Macedonia, 180 F. 3d 770 (6th Cir.1999). In that case, the Court held that the possibility of structural financial conflict of interest, which violated due process, could exist in the event of a possibility that a judge, because of his or her institutional responsibilities, may rule in a way that will aid the institution that the judge represents. Mere possibility of temptation is all that is required by the Supreme Court’s binding opinions.

In Rose v. Vill. of Peninsula, 875 F. Supp. 442, 451 (N.D. Ohio 1995), the Appellant alleged that the Mayor had encouraged city police to charge people with violations of city ordinances, rather than state laws, to increase the amount of funding for the village. The Mayor also served as the judge in the mayor’s court, where he heard cases and imposed monetary fines for traffic violations.  The Appellant argued that he could not be an impartial judge since he was also responsible for the city’s finances. The Court looked at the percentage of village revenue comprised by fees and fines from the mayor’s court and determined that over 10% of the village’s general fund was derived from such. The Court held this percentage to be “substantial”. Id. While substantiality was not the solely determining factor, the Court held that it was a major factor in determining that the scheme violated the due process rights of the accused.

Reviewing courts are likely to find a due process violating where the judiciary controls the financial assessments generated from adjudications, such as is the case with Alabama’s scheme, wherein the court clerk sets the value of the bail. In Augustus v. Roemer, the state of Louisiana imposed a bail bond fee schedule remarkably similar to the one currently in place in Alabama. In that case, the Court held the scheme unconstitutional because the courts exercised total control over the funds collected, which were used to run the criminal justice systems in the parishes.  This created a plain temptation and was a violation of due process.

There is a conflict in Alabama scheme. To start,

  • The Sheriff and his deputies have a structural conflict of interest because Sheriff’s fund is impacted by the decision whether to arrest a person or release with merely a court citation.
  • The court clerks have a structural conflict of interest because the decision of whether to issue a warrant and establish a bail bond, and to set a value for said bail bond, rests entirely with them. The receipt of funds into the court clerk’s funds is directly tied to whether or not a warrant and bond is issued. Secondly, the amount of financial revenue taken in by the clerks under the bail bond fee schedule would be significantly reduced by allowing the accused judicial public bail, recognizance or signature bonds, thus creating a further structural conflict of interests.
  • The magistrates and court clerks have an additional conflict of interest in that financial receipts are directly determined by the amount of the bond which is, again, set by the clerks.
  • A fourth structural conflict exists because there are executive and judicial responsibilities exercised by clerks, financial assessments make up substantial portions of the budget, and the judiciary exercises substantial discretion in spending those proceeds.
  • Finally, a structural conflict exists for the clerks because the clerks have almost complete discretion over the proceeds of the bail bond fee, including the ability to provide salaries and raises, after exercising their power to set the value of bond, on which the fee is calculated.
  • The District Attorney, likewise, is subject to a “temptation” and conflict of interest because his office, too, will receive funds from the proceeds of the bail bond fees, thus making it in his interest to oppose recognizance, signature, public judicial or other low bond mechanisms.

I’ll conclude with a return to Justice O’Conner’s letter to Ohio judges:

I know the pressure that many of you face to generate revenue, to increase collection rates, to “self-fund” as if the courts are a business trading in a commodity. But court cases are not business transactions. We do not buy and sell a commodity; we perform a public service. Nevertheless, focus on the “business” of the courts appears at times to be overtaking interest in our fundamental responsibility to do justice…Pressure that courts self-fund can create a system of justice that is premised on a “pay-as-you-go” model, not the principle that courts and the administration of justice are a fundamental and general obligation of government. If the existence of a court is dependent upon self-funding, we run the danger of creating a system of built-in incentives for courts to use judicial power for self-preservation not the promotion of justice for all. . . . Judges and court staff cannot be seen as collection agents. Whether courts contribute to a city’s
bottom line or generate sufficient cash flow for its own operations should not be even a secondary thought considering the role of the judiciary in our system of government.


43 States Suspend Licenses for Unpaid Court Debt including Alabama

So true:

“When you are faced with the uncertainty of potentially being pulled over and being incarcerated versus the certainty of losing your job and not being able to provide for your family, most people would choose to drive, and that’s what most people choose,” says Angela Ciolfi, a lawyer representing Taylor and the other plaintiffs in the Virginia suit. “We don’t live in a society where most people can rely on public transportation and work and shop and meet their basic needs without driving.”

Alabama is one of 43 states, plus the District of Columbia, that suspends driver’s licenses for people with unpaid court debt, according a recent report by the Legal Aid Justice Center, a Virginia-based organization that filed a lawsuit there challenging the practice.

The Alabama Rules of Criminal Rules state:
If the court orders a defendant to pay a fine and/or restitution imposed as a result of a traffic infraction, the court may suspend the defendant’s privilege to operate a motor vehicle in this state upon a failure of the defendant to comply with the order of the court. If the defendant’s privilege to operate a motor vehicle has been suspended for failure to comply with such court order, the privilege may remain suspended until the total amount of the fine and/or restitution imposed is paid.
I haven’t seen many times that a court proactively actually suspends the license for failure to pay. However, a court can do this regardless of ability to pay. The operative word in the rule is “may.” Its discretionary. A court needs to affirmatively pursue this option.
On the other hand, Alabama will suspend your license of failing to appear for a hearing. And this is automatic; a judge does not need to specifically act. As soon as the clerk transmits the notice of the FTA to Department of Public Safety, the license is suspended.

Alabama statute has placed a target on the back of juveniles for sex predators.

In Alabama, some juvenile sex offenders which have been adjudicated low-level offenders have protection from the harshness of the Alabama Sex Offender Registration and Notification Act. After consideration of evidence from a juvenile court, the judge may exclude a child from notification or, at least, limit the requirements as the particular facts demand.

However, in an odd quirk of statutory language, many juveniles which are automatically transferred to adult court are subject the full impact of lifetime, mandatory registration and notification scheme.

For these children, the state has placed a target on their back for sexual predators. According to this study performed by Dr. LeTourneau of Johns Hopkins University,  children on the registry were five times as likely to have been approached by an adult for sex in the past year, compared to nonregistered children.

The study also showed:

  • Children on the registry were four times as likely to have attempted suicide in the last 30 days, compared to nonregistered children.
  • Registered children were nearly twice as likely to have experienced a sexual assault.

Dr. LeTourneau concludes,

“The process of subjecting children to sex offender registration and notification requirements not only conveys to the child that he or she is worthless, it also essentially alerts the rest of the world that a child has engaged in an illegal sexual behavior,” says study lead Elizabeth Letourneau, PhD, a professor in the Bloomberg School’s Department of Mental Health and director of the Moore Center for the Prevention of Child Sexual Abuse. “Not only is this policy stigmatizing and distressing, but it may make children vulnerable to unscrupulous or predatory adults who use the information to target registered children for sexual assault.”

I argue that the Alabama Sex Offender Registration and Community Notification Act (hereinafter “ASORCNA)” is unconstitutional as applied to minor children like this because it violates his due process rights and is a cruel and unusual punishment.

The Alabama statute, without question, is the most comprehensive in the nation. If convicted as a youthful offender, a child will be required to SORNA register as an adult for life as follows:

  1. His name, photograph, address of residence and employment and where he goes to
    school, his physical description, the license plate and description of any vehicle he
    uses, the criminal history of the sex offense for which he was convicted, the text
    of the criminal provision of the sex offense for which he has been convicted and
    his current status will be posted on a website available to the public for the rest of
    his life. Ala. Code § 15-20A-8 (a)(1)-(10).
  2. If he fails to register, he will be guilty of having committed a class C felony,
    which carries a prison term of up to ten years. Ala. Code §§ 15-20A-10(j); 13A-5-
  3. He will be required to appear during his birth month and every three months
    thereafter to reverify all of the information on file with the registry. Ala. Code §
  4. Any time he changes residences or schools or employment, or any other change
    which affects the information required for registration, he must appear in person
    “immediately” to re-register. Ala. Code § 15-20A-10(b-c).
  5. His driver’s license or ID shall bear designation that he is a registered sex offender. §15-
  6. He will subject to electronic monitoring supervised by the Board of Pardon and Paroles for 10 years following release.
  7. There are housing and employment restrictions. A child may be required to move out of their home if minor sibling resides there, regardless whether the sibling was the victim or even the same sex as the offending child.

ASORCNA, and other registration schemes like it, do not reduce recidivism when applied to minor children because juvenile recidivism is already statistically less than five percent. If anything, evidence shows that registration and notification for juveniles may actually increase the level of recidivism due to the ostracism and lack of opportunity for healthy social connections that juveniles experience.

Minor children have transitory character traits and lessened culpability. Because of this, they are entitled to individualized review of the risk of recidivism before any adult registration requirement can be imposed on them. In 2014, the Pennsylvania Supreme Court ruled that Pennsylvania’s own lifetime registration requirements for violated due process when applied to youth offenders. In the interest of J.B. 107 A. 3d 1, 35 (Pa. 2014). The majority opinion held that “statutes that infringed upon protected interests or denied benefits by utilizing presumptions that the existence of one fact was statutorily conclusive of the truth of another fact” violated due process when there was no “meaningful opportunity to contest the validity of the second fact.” Id., at 25 (citing Vlandis v. Kline, 412 U.S. 441 (1973); Stanley v. Illinois, 405 U.S. 645 (1972); Bell v. Burson, 402 U.S. 535 (1971)). Like the Pennsylvania statute, Alabama’s law creates an irrebuttable presumption that all minor children who have committed certain sex offenses are likely to recidivate without giving them a meaningful opportunity to contest this presumption.

Furthermore, juvenile “impulsivity and sexual curiosity” lower as children become more mature, which leads to the lower rate of sex offense recidivism. J.B., at 17. Alabama’s juvenile code has an acceptable alternative for determining whether an offender is likely to recidivate, namely by assessing each juvenile individually to determine what is in their best interest and the best interest of the community.

The Supreme Court of Ohio addressed this issue in In re C.P., In holding that the federal registration requirements violated due process, the court said that “fundamental fairness is not a one-way street”. In re C.P., at 750. In other words, fundamental fairness does not mean that states can lessen due process requirements for juveniles. Instead, fundamental fairness mandates “additional procedural safeguards for juveniles in order to meet the juvenile system’s goals of rehabilitation and reintegration into society.” Id. Several states give discretion to courts to weigh specific facts and circumstances in making the decision as to whether registration will be required of an adjudicated juvenile. See A.R.S. 13-3821(D); IC 11-8-8-5(c); M.G.L. 6 § 178E(c); N.C.G.S. §14-208.26(a); 10A Okl.St. § 2-8-104A-B; RI ST § 11-37.1-4(j); VA Code § 9.1-902G; RCW 9A.44.143. In those states, unlike Alabama, lifetime registration is not automatically imposed simply because of the nature of the offense. Courts are allowed to determine whether registration is vital to the public interest. To provide fundamental fairness in the adjudication of minor children, Alabama should, at a minimum, join the ranks of these states.

This tradition of treating juveniles differently than adults is based on our knowledge of child brain development. The United States Supreme Court held, ten years ago, that juveniles are inherently less culpable than adults for their actions because they are not fully developed, which leaves them more impulsive, susceptible to outside forces and with transitory traits of character. Roper v. Simmons, 543 U.S. 551, 569-570 (2005) (finding the imposition of the death penalty on juveniles to be cruel and unusual punishment). More recently, in 2010, the Supreme Court ruled that life without parole sentences for non-homicide crimes is cruel and unusual punishment when applied to juveniles. Graham v. Florida, 560 U.S. 48, 68 (2010). Based on empirical evidence of the American Medical Association and the American Psychological Association, the Supreme Court of the United States held that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds . . . parts of the brain involved in behavior control continue to mature through late adolescence.” Id., at 68. The Court also recognized that “juveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults.” Id., at 68, quoting Roper, at 570. The Court stated, moreover, that, “it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” Id. ASORCNA ignores the judicial findings of fact by the Supreme Court of the United States by declaring that certain children are not capable of change or rehabilitation and should be punished as adults simply because of the nature of the crime, without taking into account the individual, transitory characteristics of the child.

In 2006, Franklin Zimring, a law professor at the University of California, conducted a study of 6,000 juveniles and determined that “juvenile sex offending did not predict adult sex offending” because “juvenile sex offenders were not statistically more likely than juvenile non-sex offenders to commit an adult sex offense.” Amy. E. Halbrook, Juvenile Pariahs, 65 Hastings L.J. 1, 14 (2013).

Just five years ago, the Supreme Court of the United States voided a portion of Alabama’s Juvenile Code which automatically sentenced juveniles to life imprisonment without parole for homicides as a violation of the United States Constitution’s 8th Amendment ban on cruel and unusual punishment. Miller v. Alabama, 132 S.Ct. 2455, 2469 (2012). The Supreme Court’s reasoning was as follows, “by making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” Id., at 2469. The Court invoked its previous rulings, acknowledging that, “we have by now held on multiple occasions that a sentencing rule permissible for adults may not be so for children.” Id. at 2470. Alabama has not, to date, evaluated the constitutionality of mandatory lifetime registration provisions of ASORCNA under the United States Supreme Court’s rulings that adolescent development must be taken into consideration when determining punishment and culpability for the juvenile defendant.

Registration and notification denies the youth the ability to develop a positive self-identity. Id. “For a juvenile offender, the stigma of the label of sex offender attaches at the start of his adult life and cannot be shaken . . . It will be a constant cloud, a once every three month reminder to himself and the world that he cannot escape the mistakes of his youth.” In re C.P., 697 N.E. 2d 729, 741-42 (Ohio 2012). This is disastrous to both the juvenile justice goal of rehabilitation and for preventing recidivism, as is the stated goal of SORNA. “Crime is more likely to occur when bonds with mainstream society are weakened — that is when individuals lose or fail to develop social anchors such as school involvement, stable employment, stable residence, military service, job advancement, engagement with prosocial institutions, becoming a part of prosocial friendship networks, fitting into a neighborhood, having prospects for marriage or committed relationships or raising a family.” Mark Chaffin, Our Minds are Made Up — Don’t Confuse us with the Facts, University of Oklahoma Health Sciences Center, Child Maltreatment Vol. 13 No. 2, 110, 113 (May 2008).

Secondly, ASORCNA is cruel and unusual punishment as applied to minor children. The state argues that its not “punishment.” As the statutes applies to juveniles, the statutory scheme is “‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’”Smith v. Doe, 538 U.S. 84 (U.S. 2003) However, it meets the criteria for punishment set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). Moreover, there is a national trend against juvenile registration. ASORCNA does not take into account the rehabilitative potential of minor children and, therefore, does not meet the penological goals of rehabilitation and integration.