Alabama fed court settlement establishes RTC in ability-to-pay cases

In Cleveland v. City of Montgomery, 2014 U.S. Dist. LEXIS 160679 (N.D. Ala. 2014), the Southern Poverty Law Center brought a case in federal court against the City of Montgomery, Alabama, alleging it was jailing debtors who had failed to pay fines without first determining if they had the ability to pay.  The settlement agreement spells out the new procedures for the city’s municipal courts going forward. As part of the settlement agreement

• The City’s notice to the debtor must inform them that they cannot be jailed when actually unable to pay fines and costs, and that only a willful nonpayment incurs jail time.

• At the first compliance hearing, the judge has to ask why the debtor has failed to pay in full, and if the debtor is unable to pay, the court has to send the debtor to the public defender’s office.  “Even if the debtor does not indicate an inability to pay, the court is prohibited from converting the debtor’s fines into a prison sentence without first conducting an indigence/ability-to-pay hearing.”

• All indigent debtors are given a public defender at the ability-to-pay hearing (and the PD must help the debtor with filing a substantial hardship affidavit).  At that hearing, the court has to make an express indigent/ability-to-pay determination, and if the debtor is below 125% of the poverty level, they’re presumed indigent and unable to pay absent a finding that the debtor has substantial liquid assets.  If they’re above 125% of poverty, they can still prove they’re unable to pay.  If the judge finds the debtor is unable to pay, “the court is required to provide the debtor the option of completing community service in lieu of making monetary payments.”

As part of the settlement, the parties asked the court to declare that the settlement complied with the U.S. Supreme Court’s decision in Turner v. Rogers, 564 U.S. 431 (2011) (as well as Bearden v. Georgia, 103 S.Ct 2064 [1983], the SCOTUS case about debtor’s prison).  The court noted the procedural safeguards outlined in Turner and then observed:

The judicial procedures offered by the parties incorporate all of the procedural safeguards discussed in Turner. Under the procedures, debtors are notified that an individual cannot be incarcerated solely due to an inability to pay; the court utilizes a form to elicit debtors’ financial information and debtors are afforded an opportunity to respond to questions regarding their financial capabilities; and the court is required to make an express finding regarding each debtor’s ability to pay. The judicial procedures then go a step further to safeguard against the “erroneous deprivation of liberty” and provide for public-defender representation at all indigence/ability-to-pay hearings for debtors facing the possibility of incarceration following non-payment.