Oklahoma strengthens rights for debtors in fees and fines matters

Generally

Indigent civil contempt respondents have the right to counsel if they are facing incarceration, as do those subject to other Legal Financial Obligation (LFO) enforcement mechanisms, at least at the “willfulness” hearing, which may result in incarceration.  As discussed below, because the right to counsel does not apply to the “cost hearing” portion, the right to counsel is classified as “qualified.”

Civil contempt matters

Oklahoma law grants a statutory right to counsel and notice of this right for an indigent defendant facing a civil contempt action that could result in incarceration. Okla. Stat. tit. 12, Chap. 2, App., Rule 29 (“In a civil contempt action which may result in the incarceration of a defendant who appears without counsel, the court must inform the defendant that he has a right to counsel and that if he is financially unable to employ counsel and desires such, the court must assign counsel to defend him. Only after receiving notice of this right, can the defendant knowingly and intelligently waive his right to counsel.”).

Other enforcement mechanisms

In 2023, Oklahoma enacted HB 2259, which amended Okla. Stat. tit. 22, § 22-983.  Under the statute, the court may issue a warrant for “failure to comply with the terms of a court financial obligations payment plan[.]” See Okla. Stat. tit. 22 § 983(1)-(2).  A “cost hearing” is held at which “the court determines the ability of a defendant to pay court financial obligations.” Id. at (3).  Alternatively, a defendant may request a cost hearing at any time due to a change in their financial circumstances. Id. at (D)(2).

At the cost hearing, if a defendant is found unable to pay, the court shall relieve them of the debt, in whole or in part. Id. at (B)(1).  If a defendant is found able to pay at the cost hearing and then becomes delinquent, a court may conduct a willfulness hearing. Id. at (J)(1).  If a finding of “willful failure to pay court financial obligations” is made, the court may impose a jail sentence. Id. at (J)(3). However, a jail sentence may only be imposed if “the hearing is conducted on the record” and “the defendant is represented by counsel or expressly waives his or her right to counsel.” Id. In other words, the defendant has the right to counsel at the “willfulness” hearing but not at any initial “cost hearings.”

To read more about HB 2259, see Steve Lewis, Commentary: HB 2259 will revolutionize processing and collecting of court financial obligations owed by defendants, Oklahoma Policy Institute (June 5, 2023).

Impetus for recent legislative changes

Prior to the 2023 amendments, the hearings were not bifurcated; the ability to pay and willfulness determinations were made at a single hearing at which individuals were not entitled to counsel. And although the failure to comply with a “court financial obligations payment plan” or the “failure to appear at a cost hearing or willfulness hearing” may result in the issuance of a “cost arrest warrant”, see Okla. Stat. Ann. tit. 22, § 983(A), the 2023 amendments changed the law such a cost hearing or willfulness hearing must generally be held within 72 hours of the arrest, Okla. Stat. Ann. tit. 22, § 983(H)(4). In addition, 2024 legislative changes appear to have made the issuance of a cost arrest warrant discretionary. See 2024 Okla. Sess. Law Serv. Ch. 211 (H.B. 3546) (amending the cost hearing summons language to notify the defendant that the court may–rather than will–issue a warrant for the failure to appear at the cost hearing).

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Note: The NCCRC is grateful to Ed Wunch, Criminal Justice Debt Attorney with Legal Aid Services of Oklahoma for his assistance with understanding the state of the law in Oklahoma and the legislative history.