By: Michael Campbell | Twitter: @itsthesoup
Posted: Feb. 4, 2018 | 2:25 p.m.
VIRGINIA – Just over a year after the United States Department of Justice called the practice “unconstitutional,” lawmakers in the General Assembly are now looking to change state language that requires the driver’s licenses of those convicted of an offense to be automatically suspended for fees go unpaid by the offender.
A total of three bills, two in the State Senate and a lone bill in the House of Delegates, aim to remove the requirement that courts in the Commonwealth “suspend the driver’s license of a person convicted of any violation of the law who fails or refuses to provide for immediate payment of fines or costs.”
Instead of using the automatic suspension of driving privileges as a penalty for nonpayment, the bills would allow the courts, after 90 days of nonpayment “where the court finds the nonpayment was not an intentional refusal to obey the sentence of the court, to provide additional time for payment, reduce the amount of each payment installment, assign community service in lieu of payment, or waive the unpaid portion in whole or in part.”
License suspension would remain an option for those who the court finds their nonpayment was “an intentional refusal to obey the sentence of the court,” in which case the courts would have the option to suspend the defendant’s drivers license until “payment in full, or until the defendant enters into a payment plan.”
Just over a year ago, well before these bills were introduced by lawmakers, the United States Department of Justice filed a statement of interest in the U.S. District Court for the Western District of Virginia in the class action case Stinnie et al v. Holcomb, where the plaintiffs allege their driver’s licenses were indefinitely suspended because they did not pay court fines and costs that they could not afford.
They further allege that 900,000 people in Virginia, or one in six drivers, have had their licenses suspended for failure to pay court debt, an ability of the court granted by the Code of Virginia.
For the Department of Justice, their position rests on “a fundamental principle, developed in a long line of Supreme Court cases, ‘that conditioning access or outcomes in the justice system solely on a person’s ability to pay violates the Fourteenth Amendment.’”
The DOJ’s brief also explains that a driver’s license is a constitutionally protected interest under clear Supreme Court precedent and that it cannot be suspended under the circumstances permitted in Virginia without adequate notice and a meaningful opportunity to be heard first.
“People depend on driver’s licenses to get to work, access health care and provide for their families – and so when their license is suspended for reasons that do not relate to public safety, it unnecessarily disrupts lives and harms communities,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Civil Rights Division. “This brief advances the department’s robust efforts to prevent unlawful practices that punish poverty at every stage of the justice system and that trap vulnerable residents in cycles of debt from court fines and fees.”
Pat Levy-Lavelle, an attorney at the Legal Aid Justice Center, called the state’s current license suspension policy “literally Virginia’s form of debtor’s prison” in a statement paired with the organization’s latest findings on court payment plan options.
“If you can’t drive, you can’t work, and you can’t pay,” Lavelle continued. “And if you do drive, you go to jail—and even the most generous of payment plan policies can’t save you.”
The three bills moving through the General Assembly would allow those defendants who have shown a “good faith” effort to get the money to pay their fees to able to enter into a payment agreement with the courts where installment payments can be made, the defendant could be assigned community service in lieu of payment, or the court could decide to waive all or part of the defendant’s unpaid fines.
While the bills are seen as a step in the right direction by some, officials with the LAJC have their own concerns about many of the Commonwealth’s General District Court payment plan policies, which would be utilized if these bills are passed and signed into law by Governor Ralph Northam.
It’s the belief of the LAJC that, “Payment plan policies in place across Virginia are not designed to take into account people’s individual financial circumstances, resulting in unrealistic and unaffordable payment plans that often lead to default.”
Their new report titled Driving on Empty: Payment Plan Reforms Don’t Fix Virginia’s Court Debt Crisis, looks at over 100 general district court payment policies and found, “More than [one-third] of GDC policies do not mention ability-to-pay at all. None provides any indication how it evaluates ability to pay or what that means for payment plan terms”
In addition, regarding community service in lieu of paying the monetary fines, the LAJC’s report found, “Many courts have no community service provisions (or very restrictive community service provisions), charge arbitrarily high down payments to enter plans, fail to mention the statutory right to seek modification of plans, or restrict access to subsequent payment plans for indebted Virginians who default.”
“Federal caselaw requires courts to assess an individual’s ability to pay prior to enforcing the collection of court debt and not to enforce court debt as to indigent people (so long as they remain indigent) and others for whom such enforcement would cause hardship,” their report stated. “Despite this, general district courts across Virginia frequently fail to meaningfully incorporate an individual’s financial status into the terms of payment plans. This often results in several consequences for the defendant, including financial distress, collections proceedings, and the automatic suspension of driver’s licenses.”
“These low-income drivers lose their licenses after they fail to either pay in full within 30 days of sentencing or obtain a payment plan within the same time period and maintain it,” the report continues. “For many drivers, this means giving up their only legal mode of transportation to work and forcing them to choose between losing their jobs or risking incarceration for driving illegally.”
For the LAJC, they believe a hard look needs to be taken at the role of court debt in the criminal and traffic justice systems.
“Ability to pay should be taken into account at sentencing, to
avoid saddling Virginians with unnecessary debt (such as non-punitive financial charges generally, i.e. court-appointed attorney fees and jury fees), and Virginia should consider the use of income/asset-calibrated financial penalties (“day fines”) when financial penalties are deemed necessary,” their report concludes. “Moreover, Virginia should explore the role that non-traditional (e.g., not jailing or fining) sentencing – such as
crediting completion of educational programs or job skills training – may play in giving judges a wider set of tools to use that avoid the risk of punishing Virginians for their poverty and can encourage rehabilitation.”
“Virginia must face head-on the constitutional imperative that inability to pay must be taken seriously, especially prior to imposing collateral consequences,” the LAJC adds. “Repealing driver’s license suspension for unpaid court debt is an important stop on that road.”
At last check, the bills are awaiting votes in the House of Delegates and State Senate’s Courts of Justice committees.