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Michigan Court Forced to End “Pay or Stay” Policy

by David M. Reutter

A Michigan state district court judge was ordered to end a “pay or stay” policy that he used to toss poor defendants in jail for their inability to pay fines, fees and court costs. 

The ACLU of Michigan assigned interns and fellows to watch the court proceedings of 38th District Court Judge Carl F. Gerds III, the only district judge in Eastpointe, Michigan. Time and again, the ACLU’s court watchers “routinely witnessed Judge Gerds impose sentences that required the defendant either immediately to pay the full amount of the fines, fees, and costs assessed or be sent to jail for a specified number of days.”

That statement came from Charlotte Bershbeck, a part-time, unpaid civil liberties fellow. “When imposing such sentences, Judge Gerds did not inquire into a defendant’s ability to pay,” she added.

The ACLU’s complaint was filed on behalf of Donna Elaine Anderson, who faced sentencing on a contempt charge for failure to license her dogs and appear in court on the dog license tickets. She was indigent and unable to pay $455 in fines, fees and costs, which subjected her to a near certainty of jail time under Gerds’ “pay or stay” policy.

Judge Gerds was caught on record stating those were a defendant’s only options at sentencing. The ACLU’s complaint also cited the case of Ryan E. Rockett, who faced $1,500 in fees and costs for operating a vehicle without insurance and driving with a suspended license. Failure to pay would result in 93 days in jail.

Upon imposing that sentence, Judge Gerds said, “Sir, if I ever see you again, you’re not getting that opportunity to pay or go to jail, you’re just going to jail and it’s going to be for 93 days.” Rockett asked, “Is it pay or stay?” Gerds responded, “yes, sir.”

Rockett, who was receiving food stamps at the time and had just obtained employment, went to jail for failure to pay and lost his job as a result. After 14 days an ACLU attorney obtained an emergency bond, and Judge Gerds’ pay or stay policy was declared unconstitutional by the Macomb County Circuit Court.

Nonetheless, upon resentencing Rockett after his initial jail sentence was vacated, Gerds failed to inquire into his ability to pay and held good on his promise by imposing another 93 days without authorization for release upon payment of fines and fees. Rockett then spent another four days in jail before a second emergency appeal bond was issued.

In a March 8, 2016 stipulation order, Judge Gerds agreed to end his pay or stay policy and to inquire into a defendant’s ability to pay. If the defendant is unable to pay, he agreed to “impose a payment alternative, such as a payment plan, or waiver of part, or all, of the amount of money owed to the extent permitted by law.” Gerds remains on the bench.

“We’re elated about the court’s order because it upholds a basic principle of fairness in our nation – that nobody should be jailed just because he or she is too poor to pay fines, fees, and costs,” said Michael J. Steinberg, ACLU Michigan’s legal director. See: In re: Donna Elaine Anderson, Circuit Court for Macomb County (MI), Case No. 15-2380-AS.

In May 2016, the Michigan Supreme Court announced changes to rules that limit when judges can sentence defendants to jail due to non-payment of court fees or fines. As of September 1, 2016, state courts are no longer allowed to jail a defendant for failure to pay unless they first determine he or she has the ability to pay.

The court rule changes are “a significant step forward in preventing the unnecessary and illegal incarceration of poor people,” stated Bob Gillett, executive director of the Michigan Advocacy Program. “Up until now there was no guidance in the court rules about what courts could do before sending someone to jail for nonpayment of a fee.” 

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