Criminal Defense Newsletter November, 2007 Volume 31, Number 2
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Features 2007 Criminal Law Section Policy Statement......... Indigent Repayment of Debts ................................. Renew Your CDRC Subscriptions Now!.................
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Nickel and Diming the Criminal Defendant: A Look at Financial Penalties in Felony Cases
Departments Circuit Court Opinion of the Month: Statute Banning Expungement of Minor Drug Drug Offenses Ruled Unconstitutional .............. From Other States................................................... Legislative Update .................................................. New and Interesting in the Online Brief Bank......... Reports and Studies................................................ Spotlight on: Thomas M. Loeb................................ Technical Tip ........................................................... Training Calendar.................................................... Training Events .......................................................
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Appellate Courts Michigan Court of Appeals Published Opinion Summaries ........................... Unpublished Opinion Summaries........................ Michigan Supreme Court Order Summaries................................................ United States Court of Appeals Sixth Circuit Opinion Summaries........................ United States District Court Opinion Summaries ............................................ United States Supreme Court Certiorari Granted Summaries............................
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More frequently than ever before, criminal sentences include significant financial penalties that are either set by law or imposed in the discretion of the trial judge. These penalties apply to prison sentences as well as probationary terms. Because many defendants are indigent and will have little or no ability to pay, especially once they enter the prison system, questions arise as to the validity of these assessments. Is there legal authority for the financial penalty? Is the defendant’s ability to pay relevant at all? And where exactly does the money go? What follows is a list of the various costs, fees and assessments that may be ordered with a felony sentence and the statutory authority supporting them.1 Money that returns directly to the county, either in whole or in part, is marked with an asterisk. To the extent that a defendant’s ability to pay is relevant, it is discussed accordingly (at a minimum, it must be considered in assessing attorney fees, the probation/ parole oversight fee and costs imposed as a condition of probation). The 20% late penalty is also mentioned, and defense counsel may wish to note that the payment date for financial penalties may be deferred for good cause shown and the late fee may be waived upon request of the defendant to the court (assessments are otherwise due within 56 days). The article concludes with reference to post-sentence attempts to collect from criminal defendants in the form of jail and prison reimbursement actions. For a more thorough discussion of indigency (including partial indigency), and the court’s duty to inquire into the defendant’s ability to repay the expenses of court-appointed counsel, see the lead issue in next month’s newsletter.
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Restitution Restitution is paid directly to the victim, and once restitution is paid the county is not required to reimburse the defendant upon a finding that the restitution order was erroneous. People v Diermier, 209 Mich App 449; 531 NW2d 762 (1995). The trial court “shall” order full restitution, if restitution is appropriate. MCL 780.766(2); MCL 769.1a(2). Since 1997, the defendant’s ability to pay is no longer a statutory consideration when determining the amount of restitution. See People v Lueth, 253 Mich App 670, 692; 660 NW2d 322 (2002). Unless otherwise provided by the court, restitution shall be made immediately. The court may, in its discretion, order restitution paid in installments or within a specified period. MCL 7691.a(10); MCL 780.766(10). In terms of payment priority, restitution orders are paramount and are paid first over all other financial penalties. When a defendant pays money toward courtordered financial obligations, the first 50% is applied to MCL 780.826a(2); MCL 775.22(2); MCL restitution. 780.766a(2). If the defendant is a jail inmate, the sheriff may retain 5% of the restitution payment as an administrative fee when restitution is deducted from accounts containing more than $50. MCL 780.767a(2). *Crime Victims Rights Fee The crime victim’s rights fee is a single fee imposed per case, not per count, and is mandatory. The court must order a $60 crime victims rights fee for a felony, and a $50 fee if the offense is a serious misdemeanor or a specified misdemeanor. MCL 780.905. The court shall also order a $20 assessment for each juvenile for whom the court enters an order of disposition. MCL 780.905(3). By statute, the court must forward 90% of the crime victim’s rights fees collected each month to the crime victim’s rights fund created as a separate fund with the department of treasury. MCL 780.904; MCL 780.905. The court may retain 10% of the assessment “to provide funding for costs incurred under this section and for providing crime victim’s rights services. . . .” MCL 780.905(7)(a). State Costs Beginning October 1, 2003, the court must order minimum state costs of $60 per felony offense and $40 per misdemeanor offense (or $45 for specified misdemeanors). The minimum state costs are imposed per count, not per case. MCL 769.1j.
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The minimum state costs are paid to the justice system fund under MCL 600.181. The justice system fund distributes the proceeds to a variety of funds and organizations including the secondary road patrol and training fund, the highway safety fund, the jail reimbursement program fund, the Michigan justice training fund, the legislative retirement system, the drug treatment courts fund, the state forensic lab fund, the state court fund, and the court equity fund. MCL 600.181(3). *Court Costs (Costs Of Prosecution) Court costs are permitted as a condition of probation, MCL 771.3(2)(c), and are also authorized as part of a criminal sentence under MCL 769.1k(1)(b)(ii) (effective 1-1-06). When costs are imposed as a condition of probation, the court “shall take into account the probationer’s financial resources and the nature of the burden that payment of costs will impose, with due regard to his or her other obligations” when determining the amount and method of payment. MCL 771.3(6)(a). The court “shall not require a probationer to pay costs . . . unless the probationer is or will be able to pay them during the term of probation." MCL 771.3(6)(a). Court costs as a condition of probation shall be limited to “expenses specifically incurred in prosecuting the defendant or providing legal assistance to the defendant and supervision of the probationer.” MCL 771.3(5). Court costs often vary in amount per county and are returned directly to the county. An informal survey of court costs among SADO cases shows an average range of $300 to $600. To date, there has been little appellate case law on the amount of court costs or the defendant’s ability to pay. In People v Music, 428 Mich 356, 362-363; 408 NW2d 795 (1987), the Supreme Court held that a defendant waived the right to raise on appeal a challenge to the arbitrary amount of costs and his inability to pay where no objection had been raised at sentencing. Fines Fines are permitted as a condition of probation, MCL 771.3(2)(b), and are also permitted pursuant to specific penal statutes (although not every crime include a fine within the permissible statutory penalty). Fines vary in amount from up to $1 million for certain controlled substance offenses, MCL 333.7401(2)(a)(i), up to $5,000 for home invasion first-degree, MCL 750.110a(5), and up to $2,000 for resisting and obstructing, MCL 750.479(2).
Criminal Defense Newsletter November, 2007
Fines are also authorized under MCL 769.1k(1)(b)(i) (effective 1-1-06), although there is no limit to the amount and it is unclear whether this section was meant to act as independent statutory authority for the assessment of any fine with a criminal sentence. Similarly, MCL 769.34(6) permits an assessment of fines or costs with any sentence imposed under the statutory sentencing guidelines, but it is unclear whether this subsection was meant to preserve the trial court’s ability to order a fine with a guidelines sentence or whether the legislature meant this subsection as independent statutory authority for the assessment of fines and costs. Fines are paid to the library fund pursuant to Michigan Constitution of 1963, article 8, section 9. Excessive fines are precluded by both the United States and Michigan constitutions. US Const Amend VIII; Const 1963, art 1, § 16. A defendant’s ability to pay may be a factor when determining whether a fine is excessive. People v Antolovich, 207 Mich App 714, 717; 525 NW2d 513 (1994). *Attorney Fees Traditionally, a fee for the services of court-appointed defense counsel could be ordered either as a condition of probation, MCL 771.3(5), or under the general authority of the court to order contribution by the criminal defendant to the cost of his or her defense where the individual had some ability to pay. People v Nowicki, 213 Mich App 383; 539 NW2d 590 (1995). In January of 2006, the legislature authorized the trial court, in its discretion, to order an assessment for the expenses of providing legal representation as part of any criminal sentence under MCL 769.1k(1)(a)(iii). Before ordering attorney fees, the court must consider the defendant’s current and future ability to pay. People v Arnone, 478 Mich 908; 732 NW2d 537 (2007); People v DeJesus, 477 Mich 996; 725 NW2d 669 (2007); People v Dunbar, 264 Mich App 240, 251-255; 690 NW2d 476 (2004). The court should not order attorney fees where there is no ability to pay. People v Dunbar, supra. The provisions of MCR 6.005(C), which authorize contribution to the cost of court-appointed counsel (not full reimbursement), apply only when the defendant is partially indigent. People v Nowicki, supra at 386-388. [Note: According to one recent news report, a northern Michigan county board of commissioners passed an ordinance to recover a portion of the costs of court-appointed counsel in all cases regardless of whether the defendant is convicted or acquitted. The rate is $100 for the first hour and $50 per hour thereafter if the individual utilizes the services of the public defender’s office. This ordinance may be subject
November, 2007 Criminal Defense Newsletter
to challenge in light of People v Chandler, unpublished opinion per curiam of the Court of Appeals, issued September 8, 2000 (Docket No. 206890), where the Court held that the trial court’s discretion to order attorney fees from an acquitted defendant should be exercised with caution and depends on the circumstances of the particular case and should not be ordered without individual consideration. See also, United States v Durka, 490 F2d 478 (CA7, 1973) (attorney fees properly order 3 months after acquittal where case involved complex prosecution of 19 defendants). The Chandler case was released prior to the statutory authorization for attorney fees under MCL 769.1k, but the attorney fees permitted under that statute are assessed with a criminal sentence only, which would appear to preclude collection from acquitted defendants.] Attorney fees are returned directly to the county. Some counties place the fees in the general fund, while others direct them to a fund specifically designated for court appointed counsel. [Note: Pending House Bill 4474 would create the Indigent Defense Counsel Fund to reimburse counties (and SADO) for the costs of court-appointed counsel. Pending House Bill 4473 would add a 5% surcharge to all bail bonds, with the money paid directly to the Indigent Defense Counsel Fund; the bill would also require all probationers to be assessed a one time Indigent Defense Counsel fee of $5 to $135, with the specific amount set by statute based on the defendant’s projected monthly income.] *Extradition Fees Extradition fees are permitted by statute under MCL 780.23a (effective 1-1-03) and MCL 769.1k(2) (effective 1-9-07). Extradition fees are also permitted for select offenses under MCL 7691.f(2)(e) (see discussion of emergency response costs, below). Extradition expenses are paid from the county treasury, MCL 780.23, and reimbursement returns to the county treasury. There is no known case law addressing a defendant’s ability to pay extradition fees. As these fees are typically considered a form of restitution, ability to pay may or may not be relevant. Probation And Parole Supervision/Oversight Fees A monthly supervision fee ranging from $10 to $40 for most offenders, but in no case exceeding $135, is permitted for probation and parole oversight purposes. MCL 771.3c (probation); MCL 791.236a (parole); MCL 762.13(5) (HYTA supervision). The amount of the fee depends on the projected monthly income and financial resources of the probationer or parolee, per
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the graduated assessment schedules found in the statutes. MCL 771.3c(1); MCL 791.236a(1); MCL 762.13(5). Twenty percent of the money collected by the MDOC for oversight fees “shall be allocated for administrative costs incurred by the department in collecting supervision fees and for enhanced services, as described in this subsection. Enhanced services include, but are not limited to, the purchase of services for offenders such as counseling, employment training, employment placement, or education; public transportation expenses related to training, counseling, or employment; enhancement of staff performance through specialized training and equipment purchase; and purchase of items for offender employment.” MCL 791.225a(5); MCL 791.236a(5). The remainder of the money is directed to the Field Operations Appropriation account within the MDOC. Ability to pay is considered within the statute. No supervision fee is required where the offender has a projected monthly income of less than $250. MCL 771.3c(1); MCL 791.236a(1); MCL 762.13(5).
Response activity also includes health assessments or health effect studies carried out under the supervision, or with the approval of, the department of public health and enforcement actions related to any response activity.” MCL 324.20101(2)(ii)(ee). While the number of meth labs in Michigan has declined in the last year, the costs to clean them up are substantial and the task is handled by the DEA (with repayment to the DEA). As the costs of response activity may be viewed as a form of restitution, ability to pay may or may not be relevant. *DNA Fee The $60 DNA fee expired on October 1, 2003, but the DNA sample is still required for most offenses. MCL 750.520m(6); MCL 28.171-176(5); MCL 712A.18k(4).
An offender shall not be subject to more than one monthly supervision fee at the same time. MCL 771.3c(1); MCL 791.236a(1); MCL 762.13(5).
The former DNA fee was split between the sheriff or law enforcement agency that collected the sample (25%), the department of treasury for the state police forensic science division (65%) and the court (10%). MCL 750.520m(9); MCL 712A.18k(7); MCL 28.176(8). Money collected on or after October 1, 2003 was split between the agency that collected the sample (25%), the justice system fund (65%), and the court (10%). MCL 750.520m(9); MCL 712A.18k(7); MCL 28.176(8).
*Emergency Response Costs
$150 Forensic Lab Fee
Certain offenses such as drunk driving, drunk driving leading to a conviction of negligent homicide or manslaughter or murder (and attempts to commit the same), and various offenses involving emergency police and/or fire response activity (including false bomb threats) fall under a category of offenses allowing the court to order the repayment of emergency response costs. MCL 769.1f. The expenses subject to reimbursement include the salaries or wages, including overtime, of prosecutors, law enforcement personnel, fire department personnel or emergency medical service personnel. MCL 769.1f(2)(a)&(b)&(d).
The $150 forensic lab fee expired on October 1, 2003. MCL 12.206.
The statute directs reimbursement to the unit of government that incurred the expenses. MCL 769.1f(8). As these costs have an air of restitution to them, an offender’s ability to pay may or may not be relevant. Response Activity Costs For some drug offenses “if a violation involves the unlawful generation, treatment, storage, or disposal of a hazardous waste,” the court may order payment of response activity costs. MCL 333.7401c(6). “’Response activity’ means evaluation, interim response activity, remedial action, demolition, or the taking of other actions necessary to protect the public health, safety, or welfare, or the environment or the natural resources.
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$12 Jail Entry Fee Beginning August 1, 2003, each person incarcerated in the jail (whether pretrial or post-sentence) must pay a $12 entry fee to the sheriff when admitted to the jail. MCL 801.4b The fees are forwarded to the local corrections officers training fund, unless the county meets certain training standards, at which point the county may retain $10 of the $12 fee for continuing education, training and inmate programs. MCL 801.4b(5). An individual who fails to pay the $12 fee upon discharge is liable for a civil infraction and a fine of $100. MCL 801.4b(6). If an individual pays the fee and is found not guilty or charges are dismissed, they are entitled to a refund. MCL 801.4b(7). *Jail Room And Board If an individual is sentenced to the jail, the county may seek to recover up to $60 per day (or the actual per diem cost, whichever is less) for the expenses of maintaining that person during the period of incarceration, including any pretrial periods.. MCL
Criminal Defense Newsletter November, 2007
801.83. A prisoner who does not cooperate with the county in seeking reimbursement (which may include failure to provide financial information) shall not receive a ¼ reduction of the sentence for good behavior under MCL 801.257. MCL 801.85(2).
Under MCL 600.4803(1), costs and fees must be paid within 56 days after they become due or the offender is subject to a 20% late penalty. “A late penalty may be waived by the court upon the request of the person subject to the late penalty.” Id.
Before entering an order of reimbursement, the court shall consider any legal obligation to pay child or spousal support and any moral obligation to support dependents to whom the defendant is providing or has provided support. MCL 801.87(3).
The late fee must be deposited in the general fund of the funding unit (the county is generally the funding unit). MCL 600.4803(2)&(3).
Reimbursements are credited to the general fund of the county to be available for general fund purposes. MCL 801.92. State Correctional Facility Reimbursement Under the State Correctional Facility Reimbursement Act, if the attorney general has good cause to believe that a prisoner has sufficient assets to recover not less than 10% of the estimated cost of care of the prisoner, the attorney general shall seek reimbursement. Not more than 90% of the value of the prisoner’s assets may be used for purposes of securing costs and reimbursement. MCL 800.403. A prisoner’s assets include his pension benefits. MCL 800.401a(a). See also Daimler Chrysler Corp v Cox, 447 F3d 967 (CA 6, 2006) (state cannot direct Daimler Chrysler to send pension benefits to the inmate’s institutional account, but state may take action to place constructive trust on already-paid benefits that were sent to a different address or account per the defendant’s directive). The failure of a prisoner to fully cooperate in providing financial information may be considered for purposes of a parole determination. MCL 800.403a(2). The attorney general may file a complaint in the circuit court for the county from which the individual was sentenced. MCL 800.404. The court, before entering an order of reimbursement, shall consider any legal obligation to pay child or spousal support and any moral obligation to support dependents to whom the defendant is providing or has provided support. MCL 800.404(5). Reimbursement secured under this act is credited to the general fund of the state and is available for general fund purposes. MCL 800.406. *Late Penalties And Fees According to MCR 1.110, fines, costs and other financial obligations imposed by the court “must be paid at the time of assessment, except when the court allows otherwise, for good cause shown.” For restitution purposes, MCL 780.766(10) and MCL 769.1a(10) provide that the court may order restitution to be paid immediately, or within a specified period, or in specified installments.
November, 2007 Criminal Defense Newsletter
Payment Priority According to MCL 780.766a, MCL 780.826a and MCL 775.22(2), the payment priority for distribution of any monies paid by a defendant is as follows in descending order: restitution (the first 50% of all payments), state costs, other costs, fines, supervision fees, other assessments. Acquitted Defendants Nearly all of the costs, fees and assessments discussed above attach only to a criminal sentence. See MCL 769.1j; MCL 769.1k; MCL 771.3. The $12 jail entry fee is refunded upon acquittal or dismissal of the charges. MCL 801.4b(7). And MCL 768.34 specifically precludes costs or room and board expenses when the defendant is acquitted or charges are dismissed: Sec. 34. No prisoner or person under recognizance who shall be acquitted by verdict or discharged because no indictment has been found against him, or for want of prosecution, shall be liable for any costs or fees of office or for any charge for subsistence while he was in custody. The above statute, however, does not clearly preclude an order for payment of court-appointed counsel expenses. See also, People v Lavan, 53 Mich App 220; 218 NW2d 797 (1974) (acquitted defendant cannot sue for reimbursement of retained counsel fees absent a showing of statutory authority for liability). Moreover, it is unclear whether a defendant who wins reversal on appeal would be entitled to reimbursement of jail or prison room and board expenses. by Anne Yantus, Director SADO’s Special Unit on Pleas and Sentencing End Note 1. Misdemeanor sentences and civil infractions are subject to slightly different rules and are not addressed in this article. For a look at the apportionment of fines and costs collected by the district court, see MCL 600.8379. In the place of statutory state costs for civil infractions, each convicted offender must pay a $10 justice system assessment that is forwarded to the justice system fund. See MCL 600.8727(4); MCL 257.907(14).
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Indigent Repayment of Debts National Perspective A new study, “Repaying Debts,” commissioned by the Justice Department’s Bureau of Justice Assistance and produced by the Council of State Governments’ Justice Center, describes the sometimes insurmountable debt faced by an inmate upon release from incarceration. As recounted in an October 6, 2007, New York Times editorial, some inmates were found to face almost $25,000.00 debt when released from custody. The debt may be comprised of delinquent child support obligations, perhaps accumulating during incarceration, as well as fines, costs and surcharges imposed by courts. There may be charges for DNA testing, drug testing, and for drug treatment required. One example cited is that of a person convicted of drunk driving in New York; there can be a restitution fee of $1,000.00, a probation fee of $1,800.00, and 11 other fees and charges ranging from $20.00 up to $2,200.00. [Editor’s Note: please also see this month’s lead article on Michigan’s fees]. The editorial further states that several departments might bill a former inmate living at or below the poverty level. The person may be required to remit up to 100% of his or her earnings and may be left in a position more susceptible to criminal relapse. Several reforms were recommended by the Justice Center in the study, including that states make one agency responsible for collecting debts from former offenders, and that the amount of payments be capped at 20% of the person’s income, unless the person is in a position to pay more. It was also recommended that child support be abated, if the custodial parent agrees, while the noncustodial parent is incarcerated; upon release, the former inmate would pay child support first. Additionally, incentives should be developed for those making good-faith efforts to make payments; waivers of fines and community service should be viewed as options. The editorial concluded with a cautionary note: “elected officials who worry about recidivism need to understand that bleeding ex-offenders financially is a sure recipe for landing them back in jail.”
Michigan’s Sixth Circuit More locally, in a guest opinion article published in the October 21, 2007, Oakland Press, Circuit Judge Steven N. Andrews, Presiding Judge of the
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Criminal/Civil Division, described a pilot project in the 6th Judicial Circuit Court that would require defendants to frontload the payment of at least $500.00 at sentencing for costs, fees and reimbursement for victims, with monthly payments to follow. Judge Andrews cited a court study which concluded that only 23 percent of the money paid by Oakland County to appointed attorneys for indigent defense is repaid. A goal of the pilot program is to double the collections within the first year. Luxury items, such as a boat, snowmobile, and video games, possessed by the indigent defendant would have to be sold under the program. Judge Andrews said there is no reason an indigent defendant should be allowed to keep luxury items at taxpayers’ expense. Those defendants who are truly indigent will do community service work for a nonprofit agency and do work such as road cleanup, cleaning county parks, working for Habitat for Humanity, the Humane Society, and volunteering at churches. Judge Andrews said Oakland County pays about $4.6 million annually for appointed defense of indigents, and, although a great deal of money, the amount is less than retained counsel would receive. Judge Andrews also noted that the court carefully screens appointed counsel to ensure they will zealously and professionally represent their clients, and that the “caliber and quality of appointed counsel is superior.”
Statewide Report Due April, 2008 Reflecting concerns and collection efforts made by individual judges, the state judiciary budget recently passed with a special requirement titled “Third-Party Collection Pilot Project Report.” PA 125 of 2007, adopting a budget for fiscal year 2007-08, included section 306a: By April 1, the state court administrative office shall submit a report regarding the feasibility of a pilot project for third-party collection of court-ordered fines, fees, and costs, including collection of victim restitution. The report shall be submitted to the senate and house appropriations subcommittees on judiciary, the senate and house fiscal agencies, and the state budget director.
Criminal Defense Newsletter November, 2007