Then consequently, those must be bad Laws, which authorize the Imprisoning [of] any Man for Debt, who does honestly give up to his Creditors all that he hath in the World. . . . [T]o what good End, a Debtor is shut up in a Prison, after he is stripped of all his Goods. Can his Creditors, with all their Wisdom, have more than All? Will his Imprisonment increase his Estate? Will his Confinement pay or diminish his Debts? [O]r the Punishment of his Body be any Kind of Advantage to them, or to Society?1
Introduction
The United States is a nation that loathes its poor.2 The ethos of this country is that any person can be successful if he works hard enough3 — that the United States is a land of opportunity. Not succeeding, then, is seen as an individual shortcoming. People are poor because of their own bad decisions,4 because the government incentivizes poverty via the welfare state,5 or because they are being punished by God.6 Or, they’re lying; poor people are not actually poor but are instead misrepresenting their circumstances to take advantage of others’ generosity or government services.7 These narratives are embedded to the point of being nearly unassailable.8 As a result, the country’s public figures openly flaunt their disdain for the poor,9 and legislatures across the country pass laws that penalize homelessness,10 “criminalize[] poverty,”11 and make it more difficult for altruists to help the less fortunate and for the poor to access social services.12
Bias against the poor manifests in disparate outcomes in the criminal legal system based on wealth.13 The Constitution ostensibly protects the poor from being incarcerated merely because they are, well, poor. Indeed, in a triad of decisions, the U.S. Supreme Court announced that when a person’s indigency prevents him from paying a legal financial obligation (LFO), he cannot be incarcerated for the crime of nonpayment.14 But there are workarounds to this rule; state courts have created and are exploiting loopholes in the Court’s protect-the-poor jurisprudence. In some jurisdictions, rather than sending indigent people to jail for failing to satisfy their LFOs, courts issue contempt of court warrants when debtors fail to pay court-ordered fines.15 Nonpayment becomes a crime in these circumstances because the debtors have disobeyed the court’s order to pay the fine, rendering the resultant warrants — and the concomitant arrests and incarceration — constitutional, even if the defendants did not pay because they had no money. In certain other jurisdictions, courts refuse to consider indigency when imposing LFOs; instead, they consider a debtor’s ability to pay his fines only after he has already been arrested for nonpayment.16 Constitution notwithstanding, then, poor people are still being arrested and incarcerated for being poor. And at base, in its current incarnation, the criminal legal system reflects the nation’s disdain for the poor and treats indigent defendants with contempt.
For those concerned with how indigent defendants fare in the criminal legal system, several state court decisions offer glimpses of an alternate reality where the aims of the Supreme Court’s protect-the-poor jurisprudence are realized. Beck v. Elmore County Magistrate Court,17 for example, held that Idaho courts cannot issue contempt warrants for failure to pay LFOs without first determining on the record that the defendant willfully did not pay his fine.18 Put differently, the court eschewed failure to pay a fine as being sufficient evidence in itself to substantiate a contempt of court charge and instead stated that willful nonpayment requires one to have been able to pay in the first place.19 As previously operated, the Idaho process violated the Fourteenth Amendment because “it effectively turned a fine into jail time without due process.”20 Moving forward, Idaho courts must conduct an ability-to-pay inquiry “before issuing a [contempt] warrant” based on an individual’s failure to pay his fine.21 Only after finding he has chosen not to pay, despite having the means to do so, can the court imprison him.22
Decisions like Beck, which stop indigent defendants from being incarcerated for failure to pay before courts determine if their nonpayment was willful, are significant for two key reasons. First, they vindicate poor people’s Fourteenth Amendment rights by closing a seemingly unintended loophole in the Court’s jurisprudence that allows such incarceration. Given the number of indigent people at risk of incarceration due to their inability to pay fines,23 precluding a court from issuing arrest warrants right after nonpayment is significant in that it gives the indigent defendant a chance to avoid incarceration by proving his nonpayment was unintentional.24 Much ink has been spilled about the ill effects and witlessness of incarcerating people for being poor, and this Note need not synthesize that literature.25
Second, and more to this Note’s contribution, Beck-type decisions have implications that extend beyond the Fourteenth Amendment, affecting poor people’s Fourth Amendment rights as well. Indeed, the Supreme Court in Utah v. Strieff26 held that a breach of one’s constitutional right to be free from unreasonable search and seizure is cured if the officer discovers that the person he has unconstitutionally stopped has an outstanding arrest warrant.27 The warrant saves the fruits of that unconstitutional stop from the exclusionary rule.28 On first blush, Strieff may seem only tangentially related to the issue of incarcerating the indigent for failing to pay their LFOs. But the link between Strieff and cases like Beck comes into sharp relief when one learns that Edward Strieff’s arrest warrant was based on a financial obligation he was unable to pay: a parking ticket.29 Because poor people are less likely to be able to pay their LFOs, they are more likely to have failure-to-pay warrants out for their arrest.30 After Strieff, this probability means that their Fourth Amendment rights have been enfeebled; if a court issues an arrest warrant for an indigent person based on his unpaid fine, and that person is later unconstitutionally stopped by the police, he will not be able to move to suppress evidence gathered in violation of his Fourth Amendment rights. In effect, then, the Fourth Amendment’s protections vary based on wealth: Those with means enjoy a more fulsome Fourth Amendment, but the poor get only an insipid version of it.
Given the number of active arrest warrants across the country for failure to pay one’s fine,31 if more state courts were required to engage in an ability-to-pay analysis before issuing warrants against indigent people for failure to pay — under the guise of contempt or otherwise — the Fourth Amendment violations sanctioned by the Court in Strieff would pose less of a problem. Indigent debtors could avoid arrest and incarceration for being unable to pay their LFOs. This Note is the first to fully parse out the Fourteenth and Fourth Amendment implications of failure-to-pay warrants.32 It proceeds as follows: Part I discusses the criminalization of poverty and what is at stake for poor people. Part II then describes the jurisprudence that enables courts to circumvent Fourteenth Amendment equal protection requirements. Finally, Part III recounts the facts and reasoning behind Strieff and Beck, highlights the cases’ interrelatedness, advocates for Beck’s reasoning to be adopted nationwide, and addresses counterarguments.
I. The Criminalization of Poverty, And Impotent Constitutional Protections for the Poor
A. The Criminalization of Poverty in the United States
To appreciate why cases like Beck and Strieff are significant, it is helpful to discuss some ways America’s poor are marginalized. Almost any contact a poor person has with the criminal legal system runs the risk of pushing him into financial ruin.33 States tack miscellaneous fees onto fines for nonjailable offenses, rendering seemingly minor financial penalties all but impossible to pay for the nation’s poor.34 For example, in California, penalty fees added to a traffic ticket with a base fine of thirty-five dollars could ultimately cost the driver up to $234.35 A report by the state auditor noted that “the total cost for a traffic infraction almost doubled from 2002 to 2010” and “that failure to pay all or any portion of a fine [could] result in an additional civil assessment of up to $300” levied against drivers.36 According to one estimate, that $300 late fee was imposed on over 300,000 Californians in fiscal year 2019–2020.37 In other jurisdictions, for crimes slightly more serious than mere traffic violations,38 the accused can simply pay to have the entire prosecution against him cease.39 And in other American cities, most notably in Ferguson, Missouri, police have been known to target poor, Black communities intentionally for enforcement of revenue-generating crimes, using the resultant extorted money to fund city budgets.40 When residents do not pay those fines, warrants are issued for their arrest.41
If they cannot gather the requisite funds to avoid jail, indigent debtors are incarcerated. In Massachusetts, they serve what is colloquially known as “fine time,” a period in jail where each day served reduces the debtor’s balance owed by ninety dollars.42 In Mississippi, judges sentence defendants to be incarcerated in “restitution centers” for indefinite periods of time.43 Essentially jails, these facilities restrict residents’ activities, sometimes allowing defendants to leave only if they are going to work.44 The state then takes most of the money the residents earn and applies it to their outstanding debts, which grow daily because they are charged “room and board” for their stay.45 Especially for defendants who earn minimum wage and have other financial obligations, stays in restitution centers can stretch for months.46
How has the United States gotten to this point? The problem is with the relationship between financial sanctions and the criminal legal system broadly. People are fined because those fines (theoretically) generate revenue, not because the fines are part of a rational theory of punishment or rehabilitation.47 It is difficult to quantify the exact scale of the criminal justice debt issue because many states do not track their court debt.48 That said, a recent estimate puts the total outstanding amount of fines and fees debt nationwide at over $27.6 billion.49 A disproportionate amount of this debt is borne by communities of color.50 States issue “tens of thousands of . . . warrants” each year for unpaid fines, but it is difficult to know the scope of the problem on this end, too, “because states and local courts do not typically track these orders as a category of arrest warrants.”51 Available data indicate that four small claims courts in Massachusetts “issued 1,325 [debt-based] warrants” in 2016;52 New York City had “1.2 million outstanding warrants, many for” court debt, in 2014;53 and in Texas, “[b]etween 2012 and the end of 2018, . . . municipal and justice of the peace courts issued” nearly 5 million warrants for unpaid court debt.54 But ultimately, because indigent people often cannot pay their fines expeditiously (if at all), a state may spend more to collect the debt than what it would gain in revenue. This imbalance would render the entire scheme financially imprudent.55
B. The Supreme Court’s (Failed) Attempt to Protect the Poor
In the latter half of the twentieth century, the Supreme Court released a trio of decisions seeking to provide constitutional protections to indigent defendants facing incarceration for failing to pay LFOs. Together, these decisions — Williams v. Illinois,56 Tate v. Short,57 and Bearden v. Georgia58 — announced that, absent exigent circumstances, indigent defendants cannot go to jail simply for being too poor to pay LFOs.59 Nonetheless, states continue to jail indigent defendants who default on their LFOs due to inability to pay. Before getting into how Williams, Tate, and Bearden have failed the poor, it is helpful to understand their facts and rationales.
In Williams, the Court considered a challenge from a petitioner sentenced to the maximum penalty for a petty theft conviction: “[O]ne year imprisonment and a $500 fine.”60 Claiming indigency, Williams did not pay the fine while incarcerated.61 Illinois law at the time provided that defendants who did not pay the fines associated with their convictions could be incarcerated until those fines were “paid, or satisfied at the rate of $5.00 per day of imprisonment.”62 While incarcerated, Williams petitioned to be released at the end of his year-long prison stint so he could get a job and pay his debt because he was “indigent at all stages of the proceedings.”63 The court rejected Williams’s request, thus opening the door for him to serve an additional 101 days in prison, the amount of time it would take for his fine to be paid.64 On appeal, the Supreme Court deemed unconstitutional Williams’s sentence to more than three additional months in prison.65 The Court held “that the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status.”66
Then, in Tate, the Court again found in favor of the indigent defendant challenging his incarceration for failing to pay his LFO. Here, the debt — for unpaid traffic offenses — totaled $425.67 Tate, who earned between twenty-five and sixty dollars per week and was the sole provider for his wife and two children, could not pay that debt.68 Consequently, he was sentenced to eighty-five days of labor at the municipal prison farm.69 The Texas Court of Criminal Appeals affirmed a lower court’s denial of Tate’s habeas corpus application.70 But the Supreme Court reversed.71 Extending the logic of Williams, the Court stated that “[a]lthough the instant case involves offenses punishable by fines only, petitioner’s imprisonment for nonpayment constitutes precisely the same unconstitutional discrimination [seen in Williams] since, like Williams, petitioner was . . . imprison[ed] solely because of his indigency.”72
Finally, and most importantly, Bearden reaffirmed that an indigent person’s nonpayment of his court-imposed debt was not sufficient, by itself, to justify his incarceration. Bearden was placed on probation after pleading guilty to burglary and theft charges.73 One term of his probation was that he “pay a $500 fine and $250 in restitution,” with $100 due on the day the condition was imposed, $100 due the next day, “and the $550 balance [due] within four months.”74 Bearden borrowed money to pay the first $200 on schedule.75 After that, “however, [he] was laid off.”76 Illiterate and lacking a complete secondary education,77 Bearden struggled to find gainful employment thereafter and could not pay the balance of his debt.78 So before his four-month window expired, Bearden told his probation office that he would be late in paying his fine due to his being unemployed.79 Rather than granting Bearden more time, “the State filed a petition . . . to revoke [Bearden’s] probation” and send him to jail for the rest of his probationary period to punish his nonpayment.80 The trial court acquiesced, the appeals court affirmed, and the state supreme court “denied review.”81 But the Supreme Court reversed, condemning the State’s actions.82 It stated that a “court must inquire into the reasons for the failure to pay” and “consider alternative[s]” to imprisonment for probationers who cannot “pay despite sufficient bona fide efforts.”83 “To do otherwise would . . . be contrary to the fundamental fairness required by the Fourteenth Amendment.”84
Critically, Bearden introduced a crucial protection for the poor: the willfulness, or ability-to-pay, analysis. The Court’s decisions in Williams and Tate concerned disparate punishments for the poor and nonpoor based on statutes — one that gave the option between incarceration and fine payment (Williams) and another that did not include such an option but nonetheless resulted in the poor being jailed and the nonpoor going free (Tate). But Bearden introduced the mens rea requirement for nonpayment-based incarceration: that the defendant must have the means to pay and choose to eschew his financial obligations.
Together, this trio of decisions seems to clearly prohibit courts from putting indigent people in jail for being too poor to pay their LFOs except as a last resort. They recognized that there are better ways to ensure compliance with the law than punishing indigency with incarceration.85 But in reality, Williams, Tate, and Bearden have not stopped states from incarcerating the indigent for their unpaid LFOs.86
II. Fissures in the Fourteenth Amendment
The issue with William, Tate, and Bearden is twofold. First, judges routinely ignore Bearden and send people to jail for not paying fines without any recourse or consequences.87 The indigent people sent to jail are hardly ever represented by counsel88 and may lack the resources to challenge their incarceration either before or after the fact.89 Their exploitation goes unchecked, particularly because the judicial system often perceives benefits from the revenue generated by defendants’ LFOs.90
The second reason is somewhat more complicated. In Williams, Tate, and Bearden, the Court held only that the Fourteenth Amendment (1) prohibits disparate punishments based on wealth91 and (2) requires courts to assess a defendant’s ability to pay before sentencing him to incarceration for failing to pay his LFO.92 But the cases did not explicitly require courts to engage in an ability-to-pay analysis before arresting someone for not paying his LFO. This distinction is significant. It means that if an indigent person defaults on his LFO, a court does not have to determine if that nonpayment was willful before issuing a contempt of court arrest warrant based on nonpayment or an arrest warrant for someone to appear at a hearing to determine his ability to pay. The Court’s intent in deciding Williams, Tate, and Bearden seems to have been to stop indigent people from being incarcerated for failing to pay except as a last resort. But state courts have figured out how to seemingly comply with the letter — but not the spirit — of those decisions, even though the result is the same for the indigent: jail time.
Consider the situation in Pennsylvania. Pennsylvania Rule of Criminal Procedure 706(A) states that “[a] court shall not commit the defendant to prison for failure to pay a fine or costs unless it appears after hearing that the defendant is financially able to pay the fine or costs.”93 Then, if a defendant is found unable to pay, subsection C of that same rule requires a court to consider “the defendant’s financial means,” “insofar as is just and practicable,” before imposing mandatory costs.94 The issue is that the ability-to-pay analysis happens only at the stage of the proceeding when a criminal defendant faces incarceration for nonpayment and not at any point prior to that.95 This timing means that when a person becomes delinquent on his LFO in Pennsylvania, a court can issue a warrant for his arrest, the police can arrest him, and he can wait in jail for more than three days before the court determines whether he willfully did not pay or simply lacked the means to do so.96 Advocates challenged this scheme on Bearden grounds,97 but the Pennsylvania Supreme Court held that it is constitutional even though it results in indigent defendants being incarcerated, if only temporarily, before their ability-to-pay hearings take place.98
These regimes, and others across the country that circumvent the Fourteenth Amendment, are insidious. They turn nonpayment into a strict liability crime — essentially standing for the proposition that the only reason a person does not pay his court debt is because he does not want to, not because he cannot.99 State courts are casting too wide of a net, sweeping in those they should not punish — people unable to pay their LFOs due to their being indigent — with those they wish to punish — people who choose not to pay.
And it matters that poor people are being jailed, even for a few days, for nonwillful nonpayment of their LFOs. It does not matter that they are not formally sentenced to a term in jail or prison for failing to pay their LFOs; the arrest is sufficient to wreak havoc on their lives. Being arrested can result in a person losing his job or his home, and the concomitant record makes securing future employment and housing more difficult.100 Arrests come with indignities and invasions of privacy.101 Conditions in U.S. jails and prisons are bleak, to say the least.102 And the fear of being arrested for an unpaid LFO causes debtors to forego paying for food, medicine, and other necessities, sending ripple effects through their families.103 In short, it does not matter that indigent people who default on their fines are only temporarily incarcerated. What matters is that the consequences of such incarceration can be disastrous.
III. The Poverty Gap in the Court’s Fourteenth Amendment Jurisprudence and How to Plug It
A. Loopholes to Handcuffs: How State Courts’ Circumvention of the Fourteenth Amendment Enfeebles the Fourth Amendment for the Poor
Arrest warrants for unpaid LFOs diminish indigent debtors’ Fourth Amendment protections against unconstitutional searches and seizures. Under the Fourth Amendment, “[t]he right of the people to be secure . . . against unreasonable searches and seizures[] shall not be violated.”104 To prevent the “reduc[tion of] the Fourth Amendment to a form of words,”105 the Supreme Court has interpreted the amendment as, inter alia, prohibiting states from introducing evidence gathered via illegal means against criminal defendants at trial.106 This prohibition has two closely related manifestations — the exclusionary rule and the fruit of the poisonous tree doctrine — which together disallow both direct and derivative evidence gathered in violation of the Fourth Amendment from being used against a defendant in a criminal trial.107 The purpose of these doctrines is deterrence, disincentivizing police from violating criminal defendants’ constitutional rights by forbidding officers from benefiting from their own bad behavior (that is, by rendering unconstitutionally derived evidence inadmissible).108 Absent these mechanisms, the Fourth Amendment would be toothless.
But over time, the Court has carved out exceptions to the exclusionary rule and fruit of the poisonous tree doctrine. Describing the exclusionary rule as imposing “substantial social costs,”109 the Court has created exceptions out of a desire to not “set[] the guilty free and the dangerous at large.”110 One such exception is the attenuation doctrine. Under that doctrine, courts “need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police,”111 because “[i]n some cases, . . . the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression.”112 And in such cases, it is irrelevant that the State has violated a person’s Fourth Amendment rights and that his only remedy in his criminal proceeding — suppression — is unavailable to him. Because some event purportedly breaks the link between the unconstitutional police activity and the discovery of the evidence, the Court says suppression is inapposite.
Utah v. Strieff illustrates the issue. In Strieff, the respondent was stopped by a police officer without probable cause or reasonable suspicion.113 Everyone in the case — the police officer, the State, and the Solicitor General — conceded that this stop was unconstitutional.114 Nonetheless, the officer stopped Strieff,115 ran Strieff’s name through a police database, and discovered an arrest warrant for an outstanding traffic violation — a parking ticket.116 The officer “arrested Strieff [on] that warrant.”117 In a search of Strieff “incident to the arrest,” police found drug-related contraband.118
Unsurprisingly, Strieff argued that the contraband should be subject to the exclusionary rule under the fruit of the poisonous tree doctrine.119 Since that evidence was found only after the police illegally stopped Strieff, he argued that it could not be used against him at trial.120 Although the lower courts both decided not to suppress the evidence,121 the Utah Supreme Court ruled that the exclusionary rule should apply, and it reversed the lower courts’ denial of Strieff’s suppression motion.122
But the Supreme Court reversed.123 In a 5–3 decision,124 it held that the officer’s discovery of Strieff’s arrest warrant for the unpaid parking ticket sufficiently attenuated the connection between the unconstitutional stop and the seized contraband.125 First, the Court disagreed with the Utah Supreme Court’s contention that the attenuation doctrine applies only in situations where a defendant’s voluntary act attenuates the taint of the illegal police activity.126 Then, it held that because Strieff’s arrest warrant was valid and because the officer merely “made two good-faith mistakes” in stopping Strieff,127 the attenuation doctrine applied.128 Notably, the Court was unmoved by Strieff’s argument that “because of the prevalence of outstanding arrest warrants in many jurisdictions, police will engage in dragnet searches if the exclusionary rule is not applied.”129 It instead stated that the solution to such misconduct is civil suits, and perhaps the outcome would have been different had Strieff presented evidence of deliberate, flagrant police misconduct.130
Justice Sotomayor, in dissent,131 framed the outcome differently:
The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. . . . This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants — even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.132
She went on to note that the officer’s discovery of the warrant was not simply a serendipitous accident, as the majority implied, because “at the time of the arrest, Salt Lake County had a ‘backlog of outstanding warrants’ so large that it faced the ‘potential for civil liability.’”133 Citing nationwide reports explaining how a seemingly minor violation can subject an individual to arrest, Justice Sotomayor described outstanding warrants as “surprisingly common”134 and noted that there are “astounding numbers of warrants” — “‘drawers and drawers’ full” — “that many cities issue for traffic violations and ordinance infractions.”135 Given that context, she noted that “[t]he majority does not suggest what makes this case ‘isolated’ from these and countless other examples. Nor does it offer guidance for how a defendant can prove that his arrest was the result of ‘widespread’ misconduct.”136
One fact worth mentioning explicitly, which is perhaps tacit in Justice Sotomayor’s dissent, is that the “‘drawers and drawers’ full” of arrest warrants to which she referred are disproportionately for indigent people.137 The issue in Strieff, then, is not confined to the Fourth Amendment. Instead, Strieff stands for the proposition that poor people will less often be able to vindicate their Fourth and Fourteenth Amendment rights, because if their Fourth Amendment rights are violated, but a police officer later discovers that they have a warrant for an unpaid LFO (a “common” situation), they cannot have the fruits of the illegal stop suppressed.
B. Plugging the Gap: How Requiring Earlier Ability-to-Pay Analyses Would Vindicate Bearden and Neuter Strieff
As previously discussed, one way states circumvent the Fourteenth Amendment is by arresting poor people for failing to pay LFOs before determining if their nonpayment was willful.138 And they argue this process is constitutional because those people are not being sentenced to incarceration for being too poor to pay their fines — they are just being jailed for contempt or temporarily jailed pending their ability-to-pay hearings. But if this appears to be a distinction without a difference, that’s because it is. That there is, facially, an alternate reason for the arrest does not change the fact that the debtor is ultimately in jail for being too poor to pay his fine. So functionally, in most jurisdictions across the country, today’s indigent debtors are as susceptible as ever to being jailed for being poor, Fourteenth Amendment notwithstanding. And even those who aren’t ultimately arrested nonetheless have their Fourth Amendment rights diluted to nearly nothing.
Roxana Beck’s case presents a paradigmatic example of a court using contempt to justify the otherwise unconstitutional jailing of an indigent debtor. Beck pleaded guilty to a nonviolent misdemeanor punishable “by a fine of not more than . . . $300 . . . [or] not more than ninety . . . days in the county jail, or both.”139 Beck worked at Burger King; she requested her fines be either waived or set “as low [as] possible” since her “hours of work . . . had recently been reduced.”140 But the court refused.141 Beck was not sentenced to serve any time in county jail, but the terms of her sentence required her “to pay $150 in fines, $197.50 in court costs, and $291 in restitution to the Idaho State Lab.”142 This decision ultimately rendered her liable for $638.50.143
As is typical when mammoth fines are imposed on low-income debtors, Beck eventually found herself in arrears.144 This delay prompted Elmore County to issue a contempt warrant for Beck’s arrest.145 Months later, she was arrested in a different Idaho county, arraigned the next day in that county, and held until she could be transported back to Elmore County.146 It took four days for that transfer to happen.147 That day, she “was sentenced to five days in jail,” but was given “five days’ credit for [the] time [she] served” between being arrested and being seen by the Elmore magistrate judge.148 Nonetheless, her debt remained.149 Beck was “reordered to pay the outstanding fines, court costs, and restitution from her misdemeanor conviction,” minus a seventy-dollar credit for having been “held in jail for two days longer than the statutory maximum.”150 Per her agreement with the court, “if Beck missed a payment” toward her debt, “the entire sum would become due and [another] warrant may be issued for her arrest for failure to pay.”151
Beck filed a petition for a writ of prohibition seeking to prevent the State from issuing another warrant for her arrest should she miss a payment toward her court debt.152 The Idaho Supreme Court sided with her.153 It held that the trial court’s practice of issuing bench warrants after a debtor failed to pay her court debt was prohibited by Bearden, and that under the Equal Protection Clause, a person could be in contempt of court for failure to pay her fine only if she willfully did not pay that fine.154 Echoing Bearden, the Beck court explained that “determin[ing] that an individual has willfully disobeyed a court order by failing to pay fines and fees [requires] . . . at least some inquiry into why the person failed to pay,” and that “the mere allegation that an individual failed to pay court-ordered fines and fees, as was before the magistrate court in this case, is not sufficient to provide a substantial basis for a probable cause determination with respect to willfulness.”155 It went on to “hold that the magistrate court’s issuance of the warrant of attachment against Beck, without considering the reasons that she failed to pay, violate[d] the Fourteenth Amendment . . . [because] it effectively turned a fine into jail time without due process.”156
Beck is significant, then, because it breathes life back into Williams, Tate, and Bearden, vindicating indigent debtors’ constitutional rights under the Equal Protection Clause.
C. Beck and Beyond: Protecting Poor Americans from Going to Jail for Being Poor
The virtue of decisions like Beck, which require courts to conduct ability-to-pay hearings not only before a court sentences a debtor to incarceration for failing to pay his fines but also before a court seeks to have someone arrested for nonpayment,157 is that they stop state courts from exploiting a loophole in Williams, Tate, and Bearden. In states where this willfulness analysis is not a perfunctory final step before sentencing poor people to incarceration and is instead a meaningful protection to prevent them from being jailed for being too poor to pay their LFOs, there will be fewer warrants like the one that led to Edward Strieff’s arrest. Given that “fundamental fairness” under the Fourteenth Amendment prohibits the state from incarcerating an indigent debtor when, “through no fault of his own, he cannot pay [his] fine,”158 Beck and similar interpretations of Bearden embody what is actually required under the Equal Protection Clause.
It is not enough to require courts, before sentencing a defendant for failing to pay his fines, to inquire as to whether his nonpayment is or is not willful. Instead, courts must conduct this type of ability-to-pay analysis any time a defendant faces incarceration for an infraction based on his nonpayment, including contempt. Requiring an ability-to-pay analysis in all such situations, be it at the time the fine is levied by the court, before the court issues a contempt warrant, or at some other moment before incarceration for failure to pay is imminent, would close the loophole states have created in the Court’s Fourteenth Amendment precedent, which sought to protect the poor from being jailed for failure to pay for any amount of time. In practice, courts would then need to issue orders to show cause as to why a warrant should not be issued for failing to pay before actually issuing that warrant, a potentially modest procedural step that could make all the difference for indigent defendants.
Indeed, if Utah courts were bound by this interpretation of the Fourteenth Amendment, Edward Strieff likely would not have had a warrant issued for his arrest. Rather than the arrest warrant, he would have been issued a summons to appear in court, requiring him to appear before a judge and explain why he had not paid his parking tickets. If, during that hearing, the court credited Strieff’s account that he had not paid his tickets because he could not afford to do so, it could have determined an alternative punishment (for example, community service), set up a payment plan that was reasonable for an indigent person to comply with, or otherwise come up with a plan that did not lead to an indigent person being incarcerated for his indigency.
Had that happened, there would have been no warrant to attenuate the taint between the officer’s unconstitutional stop and his finding contraband on Strieff, meaning that the evidence would have been excluded, and the parties would have reached an outcome more aligned with a robust reading of the Fourth Amendment.159 In sum, requiring state courts to conduct ability-to-pay analyses before subjecting defaulting debtors to arrest, not just sentencing, for failure to pay gives necessary meaning to both the Fourth and Fourteenth Amendments.
D. Counterarguments
Detractors may argue that Beck’s innovation is inconsequential and that it will not actually do much to stem the tide of indigent people being jailed for nonpayment of fines. This argument is not totally without merit. Adding the additional step of courts having to conduct an ability-to-pay hearing before imposing nonpayment sanctions is only meaningful if the debtor (1) is made aware of the hearing and (2) actually attends the hearing. The first issue is one of institutional competence on a court’s part, and it may be addressed by instituting procedures prohibiting collection and incarceration proceedings from moving forward if the debtor is not sufficiently provided notice of said proceedings. The second issue is more complicated. It is difficult for indigent defendants to get to court no matter the stakes. They must take time off work, find childcare, figure out how to travel to sometimes faraway courthouses without reliable transportation, and otherwise disrupt their lives.160 As is the case with paying a facially insignificant fine to most people, the burden on the poor to get to court can be much greater than it is on the average person. Add to this dignity interests; an ability-to-pay hearing is, at base, a request for a person to stand up in open court and say, in front of everyone, that he is too poor to pay his court debt. One might, empathetically, imagine that to be a humiliating experience. Consequently, there is merit to the idea that a poor person, issued a summons to appear in court for an ability-to-pay hearing, will not show up.
Here, too, there is a response. Experiences drawn from other parts of the criminal legal system have shown that it is possible to implement “[b]ehavioral nudges” and otherwise make it easier for people to attend court hearings.161 In New York, researchers “made court information more salient by redesigning the court summons form and sending text messages to defendants.”162 They found those “interventions significantly reduced the rate at which defendants missed their court dates for low-level offenses, and fewer arrest warrants were issued as a result.”163 Other jurisdictions have implemented similar interventions, including providing transportation assistance,164 creating virtual hearing options,165 and creating flexible scheduling options for criminal defendants.166 The bottom line is that advocates should think critically about how to increase court attendance rates. The lessons from increasing attendance for other court proceedings can be transposed to the ability-to-pay hearing context. It is much easier to figure out how to get an indigent person to court to explain why they cannot pay an LFO than it is to get that insolvent person to pay a debt they have no funds to pay.
Conclusion
With no indication that poverty in the United States is abating, it is more important than ever to think about how the consequences of being indigent manifest in unexpected ways and in unexpected areas of the law. One such manifestation is in lesser Fourth Amendment protections for people issued arrest warrants after not paying their LFOs, even when they did not do so because they were insolvent. Decisions like Beck, which prohibit such warrants from being issued absent an ability-to-pay hearing, should be adopted nationwide because their reasoning plugs these constitutional gaps: It helps prevent poor people from being jailed simply for being poor.