$103,000 Settlement Between Colorado Town and ACLU Over “Pay or Serve” Jail Policy
by Matt Clarke
On May 4, 2016, Colorado Springs officials signed off on a $103,000 settlement that will end the practice of municipal judges converting fine-only violations of municipal ordinances into jail time for indigent defendants.
In a longstanding practice known as “pay or serve,” Colorado Springs municipal judges would sentence defendants unable to pay fines incurred for violating city ordinances to jail time, then credit the fines at the rate of $50 per day spent in jail. That practice resulted in hundreds of people being incarcerated solely because they were too poor to pay fines for non-jailable offenses, essentially creating a debtors’ prison.
The ACLU of Colorado became aware of the town’s “pay or serve” policy and launched an investigation. It discovered over 800 cases in which people had been sentenced to jail for failure to pay fines for non-jailable offenses between January 2014 and October 2015. Some were sentenced to months behind bars, and many were incarcerated for violations they did not commit.
The most egregious case was that of Shawn Hardman, who spent almost 100 days in jail for multiple violations of a city ordinance against soliciting near a street or highway. However, the citations indicated that he had been passively holding a sign requesting donations – a practice not prohibited by the ordinance.
On October 22, 2015, the ACLU sent a letter to Colorado Springs City Attorney Wynetta Massey that described the “pay or serve” policy and explained how it violated Colorado law and Supreme Court decisions. The letter named Hardman along with Barry Crews, Danielle Zolna and Justin Hamilton as potential plaintiffs, and mentioned that the ACLU estimated over 90% of the defendants cited for solicitation, like Hardman, had not broken the law.
“We asked the City to stop this unconstitutional practice, to repeal the ordinance that arguably authorized it, and to set up a fund to compensate defendants who had been sentenced to jail for non-jailable offenses,” said ACLU of Colorado Legal Director Mark Silverstein. “The City Attorney’s Office, to its credit, promptly agreed and worked collaboratively ... to reach the finalized settlement agreement.”
The city agreed to pay $52,159.18 in attorney fees to the ACLU, and established a $37,625 settlement fund to compensate people who had been jailed solely for a non-jailable offense since January 1, 2014, at a rate of $125 per day they were incarcerated. Hardman received $11,250 in damages and the other named potential plaintiffs received lesser amounts. The agreement was reached before a lawsuit was filed.
As part of the settlement, the city agreed to repeal its ordinance authorizing “the municipal court’s practice of converting fines into jail time at a daily rate.” Further, municipal court judges will “permanently cease imposing jail time, including by converting fines and/or costs into jail time, for any offense the Colorado Springs Municipal Code identifies as non-jailable,” and judges will undergo training on the policy changes. Additionally, on its own initiative, the city ordered its police force to stop issuing citations for violations of the solicitation ordinance.
“I was trapped in a cell that it seemed like I could never get out of. I was told over and over that I either had to pay or go back to jail. I was homeless and jobless, so the cycle kept repeating,” Hardman said. “I am thankful for this settlement, because it will help me keep a roof over my head, something I have wanted for a long time. Even more, I am proud that the settlement will protect other people living on the streets in Colorado Springs from going through what I went through – being jailed just because I was poor.”
Sources: ACLU of Colorado letter (Oct. 22, 2015); www.aclu-co.org