Incarcerated for Indigence: Probation Revocation for Inability to Pay Court-Ordered Fines Found to Violate Due Process.

AuthorWynhausen, Aaron
PositionNOTE

State ex rel. Fleming v. Mo. Bd. of Prob. & Parole, 515 S.W.3d 224 (Mo. 2017) (en banc)

  1. INTRODUCTION

    Currently, in Missouri, if you are an alleged criminal offender unable to afford bail, sitting in county jail waiting for trial, you may be racking up a bill worth thousands of dollars for your "care." State prosecutors and judges have the discretion to impose this bill upon you, and if you are unable to pay this bill for any reason, then the true cost may well be the incalculable expense of your freedom. The Supreme Court of Missouri recently considered a case that followed this pattern and ultimately released a man who spent three years in state prison for failure to "pay for his stay" while awaiting trial in a county jail.

    William Fleming was an indigent resident of Farmington, Missouri, on probation for assault.1 His five-year probation term was revoked after four years and ten months, and he was then sentenced to a seven-year prison term solely for a failure to pay court-ordered fines in the time allotted by the court. 2 He filed for a writ of habeas corpus with the Supreme Court of Missouri, challenging the sufficiency of his sentence, and he won.3 The court found his due process rights were violated because the sentencing court failed to follow established judicial procedures for revoking probation when an offender fails to pay legal financial obligations ("LFOs").4 His equal protection rights were also violated because the sentencing court neglected to account for his indigence as the impetus for his failure to pay--a condition that offenders with financial means would have far less trouble satisfying. (5) Habeas corpus was thus granted despite Fleming's release on parole, a status that could arguably cure the restrictions to his liberty due to a lack of physical imprisonment. (6)

    The outcome of this case is important for a few reasons. First, it demonstrates the state judiciary's reluctance to condone imprisonment for a defendant's inability to pay court-ordered fines and costs. This reluctance is underscored by other recent legislative and judicial developments in Missouri that indicate a problem exists and needs to be actively addressed. Defense attorneys, prosecutors, and judges should now be on notice of the required procedure when sentencing an offender to jail for financial shortcomings. Second, it highlights the potential for unjust outcomes in Missouri's current statutory scheme. The vast bulk of the fines imposed on Fleming came from a "pay-to-stay" statute called the Missouri Incarceration Reimbursement Act ("MIRA") that transfers the costs of a prisoner's "care" directly to the prisoner. (7) While such statutes are common throughout the country, (8) their efficacy and actual reduction of financial burdens to taxpayers are dubious. When combined with another Missouri statute that provides state reimbursement to counties based on per diem prisoner population, a potentially perverse incentive for courts to encourage stricter sentencing is created. Third, the court's broad interpretation of Missouri's writ of habeas corpus jurisprudence reaffirms a commitment to liberty for state residents. By not considering the case moot upon Fleming's release to parole, the court acknowledged the common law roots of the doctrine and upheld the right of residents to challenge restrictive government intrusion into their lives. In short, the outcome in this decision was apt and is hopefully indicative of further changes in the way the state legal system treats its poorest residents.

    This Note introduces the facts and holding of the case at hand in Part II. Part III then explores the legal background on which the outcome of the case rested. Next, Part IV summarizes the instant decision and holding. Finally, Part V provides commentary on the case and the propriety of its outcome before suggesting further developments to the Missouri criminal justice system.

  2. FACTS AND HOLDING

    William Fleming sought a writ of habeas corpus against the Missouri Board of Probation and Parole from the Supreme Court of Missouri. (9) Fleming's ordeal began when he was served with an arrest warrant for domestic assault on May 1, 2008. (10) On May 6, he was arraigned and received his first hearing. (11) Fleming asserted indigence and submitted an application for public defender assistance, which was granted. (12) On May 27, a bond reduction hearing was held and his bond was set at $50,000--an amount Fleming was unable to post. (13) On June 24, the case was moved to the Twenty-Fourth Judicial Circuit, and another arraignment hearing was scheduled for July 11 of that year. (14) At that arraignment, Fleming appeared and pled not guilty to two counts of second-degree domestic assault, one count of second-degree assault, and one count of unlawful use of a weapon. (15) A trial was scheduled for July 31. (16)

    Prior to his scheduled trial, Fleming agreed to a plea bargain; thus, the trial instead became a sentencing hearing. (17) Fleming subsequently pleaded guilty to the two counts of second-degree domestic assault, and the State agreed not to prosecute the other charges. (18) He was then sentenced to serve two concurrent seven-year prison terms, the execution of which was suspended and replaced with five years of supervised probation. (19) The terms of Fleming's probation included completion of a domestic abuse or anger management program, a mental health program, and payment of "court costs" within three years. (20) The court costs were calculated to include expenses and fees of $301.50 for the public defender lien, (21) a ninety-two dollar reimbursement to the Crime Victims' Compensation Fund, and a $3870 jail "board bill" for the twelve weeks he spent incarcerated while awaiting disposition of his case. (22) Thus, Fleming's total bill was $4263.50, and his probation was scheduled to end on July 30, 2013. (23)

    Fleming's financial means were very limited. (24) He was unemployed and reported to his probation officer that his primary source of income was a monthly Supplemental Security Income ("SSI") disbursement for a physical injury and bipolar disorder that amounted to $449 per month. (25) In April 2009, he agreed to make monthly payments of $118 to the court, but he made only one payment of this amount, in May 2009. (26) In August 2009, Fleming's probation officer issued a citation for failure to make the monthly payments and wrote in a case summary that Fleming continued "to have financial difficulties" and failed to receive housing assistance. (27) After the citation, Fleming made semi-regular ten-dollar monthly payments but was able to pay only a total of $288 by the end of the three-year period set by the sentencing court. (28)

    In August 2011, Fleming's probation officer filed a violation report for failure to pay the balance of the court costs within the specified time. (29) The report highlighted Fleming's financial difficulties, noted he would continue to make ten-dollar payments, discussed the possibility of proscribing alternative arrangements to count as credit for the costs, and requested a probation revocation hearing to best determine how to proceed. (30) A hearing was held on September 9, 2011, during which Fleming admitted to violating the payment condition of his probation. (31) The court accepted his admission without making any inquiry into the reasons for his failure to make payment in full. (32) Disposition of the probation revocation was deferred for three months on the condition that $150 be paid in fifty-dollar monthly installments before a rehearing in December 2011. (33) Fleming did not make the monthly payments but managed to make a lump-sum $150 payment prior to the deadline. (34)

    At the December hearing, Fleming was ordered to continue making fifty-dollar monthly payments, a task at which he achieved partial success, and the formal probation revocation hearing was continued and rescheduled multiple times until April 12, 2013. (35) By the time of the April hearing, with only a couple months left of his probation, Fleming had paid over $1100 toward his total bill but still owed over $3000. (36) In the meantime, the balance of the jail boarding bill had been sent to a collection agency, which had begun garnishing his SSI checks to pay off the debt. (37) Fleming argued he had complied with all other conditions of his probation, insisted he was indigent, and suggested that his payments of $1100 were evidence he was making a good-faith effort to complete the probation terms, despite his indigence. (38) The State argued that Fleming's poor payment record indicated he had not made a good-faith effort to pay the costs, despite having the means to do so, and that his admission at the September 2011 hearing precluded any later argument of indigence. (39)

    The court agreed with the State, revoked Fleming's probation, and, after nearly five years of probation, ordered execution of the prison sentences solely based upon the admission at the September hearing. (40) Despite a statement by the sentencing judge that people should not "be sent to prison because they can't pay their court costs," the court concluded that the only option was to revoke probation, even though it admitted the availability of other means of punishment. (41) Thus, nearly five years after a guilty plea for domestic assault, the court sent an indigent Missourian--relying on SSI disability for income and represented by a public defender--to a seven-year prison sentence for failing to pay for his three-month stay in county jail, which itself resulted from an inability to post a $50,000 bond after arrest. (42)

    Fleming filed a writ of habeas corpus with the Twenty-Fourth Judicial Circuit in October 2015, which was denied. (43) He then filed a writ of habeas corpus with the Missouri Court of Appeals, Western District, in March 2016, which was also denied. (44) Finally, he filed a writ of habeas corpus with the Supreme Court of Missouri in June...

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