Habitual Inequality:

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I have noticed over the course of my legal career that criminal defendants with money (or who have supportive families with money), fare better than those who are poor. We see it play out in several distinct ways within the criminal justice system. It has been pointed out how poor people pay astronomically higher fines and fees in traffic and misdemeanor courts, such as Municipal Courts. People with money get a traffic ticket, or some other minor municipal offense, like Disturbing the Peace, or Public Intoxication, and they simply pay the fine with a single check. These monied offenders are then off the hook, living footloose and fancy free. However, people without money — poor people — often cannot afford to pay the fine, and they have to be placed on some type of payment plan, almost always with an additional fee on top of the fine. If these people cannot make the payment, they may incur late fee penalties, of even contempt of court fines. Last year, HBO’s John Oliver discussed this topic, highlighting a particular case — which is more common than you might think — where a person began with a $100 ticket for a minor traffic offense, and ended up paying over $1,400 in finance charges, late fees and contempt fines.

We have also seen some discussion lately about inequality when it comes to pre-trial offenders posting bail to get out of jail. Whenever someone is arrested, whether it be for murder or possession of drugs or even certain traffic violations, bail is set to allow the offender to be released from jail until trial, with few special exceptions. However, again, while people with money can usually post bail without difficulty — even on serious charges — poor people often have much more difficulty — even on minor crimes. As it stands, it is not uncommon for a wealthy man charged with murder or rape(think Harvey Weinstein) to post bail without spending even a few days in jail. On the other hand, a poor man will often sit in jail for months on a minor marijuana charge simply because he couldn’t afford the $150 required by the bondsman to post bail. In fact, last year the U.S. Justice Department actually acknowledged this problem, generating a memo that said “[b]ail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violate the Fourteenth Amendment.” Several high profile cases have since made progress toward evening that playing field, though there is still a long way to go.

More and more lately, I have also noticed another wealth-dependent privilege contained in the Multiple Offender statutes. These are laws that add additional and increased penalties for repeat offenders. Most states have a broad Habitual Offender statute that applies to all felony offenses and offenders. For example, a person with a prior burglary conviction will get a longer sentence on his 2nd burglary conviction pursuant to these Habitual Offender statutes. In Louisiana, 2nd and 3rd offenses generally carry up to double the maximum sentence for a first offense, while 4th time offenders face mandatory minimum 20 years in prison up to a maximum of life without parole — even for relatively minor drug offenses, such that a person with 3 prior convictions for simple possession of cocaine — or even non-narcotic prescription medication — can be locked up for life on a fourth offense.

There are also crime-specific multiple offender statutes, such as multiple offenses for Driving While Intoxicated (DWI). DWI is, in many states, referred to as an “enhanceable misdemeanor,” meaning that the penalties vary depending on the number of previous DWI convictions. Again, in Louisiana, while DWI first and second offense are misdemeanors with a maximum of 6 months in jail, a fourth offense carries a minimum of 10 years up to a maximum of 20 years at hard labor.

While I am generally opposed to oppressive habitual offender sentencing schemes, I understand the reasoning behind them. As long as they aren’t abused, and they offer judicial discretion to account for special circumstances, I don’t generally have a strong objection. However, the way it is implemented in many places today is too strict, not taking the individual facts of the case into account, and essentially punishing petty thieves, or petty drug offenders, with the same degree of severity as serious, violent offenders, such as murderers and rapists.

And, of course, there is a certain amount of inequality built into the statutes. Most habitual offender statutes will offer a “cleansing” period for prior convictions, only allowing the prosecutor to use convictions less than ten years old, for example. But that doesn’t mean they can’t still use older convictions, as long as there was a “linking” conviction less than ten years prior to the current charge. For instance, if you were charged in 2017 with a felony, and you had a prior felony conviction in 2008, and another in 1999, and another in 1990, they could charge you as a fourth-time felony offender, since each of the prior convictions is less than 10 years older than the next one. However, if you were charged in 2017 and your prior convictions were in 2006, 2005, and 2004, you could still be a first time offender, since the most recent one was more than ten years ago.

There’s a catch — and this is where is gets really unfair — the time period for “cleansing” your record does not start to run until the end of your sentence on the prior conviction, and — wait for it — payment of all fines and fees. So here we go again, a system where you get a faster cleansing period just by having more money. So a rich guy could get convicted of a felony in 2007, get 6 months probation and a $1,000 fine, and would be completely cleansed by mid-2017, free to commit another consequence-free felony. However, a poor guy could get the same sentence, yet not be able to pay the fine up front, and have to go on a payment plan, and pay additional fees, and sometimes contempt of court fees if he misses a payment, or could lose his job and stop paying altogether, and he could still be technically “on probation” for years. During that entire time — until the last dollar is paid — the clock is stopped on his cleansing period.

It is well settled in our law that a person cannot be punished for their inability to pay fines and fees. In the case of an indigent defendant it is impermissible to impose a prison term in lieu of fine payment that would result in the defendant’s serving a longer term than the maximum for the offense, Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). It is likewise impermissible to imprison an indigent defendant for failure to pay a fine for a crime punishable by fines only, Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). Most importantly, it is a constitutional violation to revoke a person’s probation, and increase their punishment, because the defendant could not pay his fine without determining that he had not made sufficient bona fide efforts to pay or that adequate alternative forms of punishment did not exist. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). Unfortunately, this framework has not yet been applied to the application of habitual offender statutes.

I have personally seen people who are charged with a 2nd offense DWI 25 years after a prior DWI, even though the cleansing period is 10 years, because they didn’t — or couldn’t — pay all the fines and fees they owed for the previous case. Or perhaps even worse, I had a client with a prior felony theft charge from 2003 for which he received a 1 year sentence, plus a fine. He successfully completed his probation, and paid all of his fines. However, because there was some nominal court cost and/or administrative fee not paid in full, the record was not marked “closed” for several additional years. When he was arrested again in 2016, because that case was not officially closed until 2007, he was charged as a habitual offender, when again, the cleansing period is ten (10) years.

I am not here advocating for the abolishment of habitual offender laws. I am not advocating for the “right” of criminals to have an easier time avoiding enhanced sentences for recidivism. I do have some pretty fundamental objections to the way most habitual offender statutes are written, but I will save those arguments for another article. At this time, I am specifically opposed to the inequity written into these laws, allowing people with money to enjoy less severe consequences than those without money. A law is not necessarily unfair if it invokes harsh consequences, but it is absolutely unfair if those consequences affect different people differently based solely on their ability to pay money. That is a violation of the Equal Protection clause of the 14th Amendment, and should be addressed. I’ll hold my breath while I’m waiting.

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