Settlement reached in 38th District Court ‘pay or stay’ suit

By: Kevin Bunch | Roseville - Eastpointe Eastsider | Published March 23, 2016

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MOUNT CLEMENS — A settlement was reached March 3 in a lawsuit between an Eastpointe woman sentenced to jail time after allegedly being unable to pay her court fines, and the 38th District Court and Judge Carl Gerds.

Under the settlement, both sides agree that the standing statewide judicial practice of jailing defendants who do not pay their court fines and fees — without first checking to make sure the defendants can actually pay — should be ended.

The 38th District Court also is required to check a defendant’s employment status and history, the defendant’s employability and earning ability, the willfulness of the defendant’s failure to pay, their financial resources, their living expenses, and any other special circumstances.

Gerds’ attorney, Thomas Rombach, said they are also advocating for the rules to be changed by the Michigan Supreme Court to match those in the settlement; that effort has been underway for two months now and currently is in the public comment phase.

“Right now, the Michigan court rules require that fines, costs and other financial obligations must be paid at the time of sentencing, absent good cause,” Rombach said. “Basically, what is happening here is Judge Gerds is ahead of the curve. We are following what we believe is best practices in the judiciary, and as attorneys on both sides, we’re advocating the Supreme Court adopt a similar rule (to the one) that has been proposed.”

Rombach added that Gerds has been following those new rules since last year, though he did not have a specific start date available. He said the rules have been “working out well” in Eastpointe, and that while it adds a few extra steps to proceedings, the rules serve the “interests of justice.”

American Civil Liberties Union of Michigan Deputy Director Daniel Korobkin, who represented appellant Donna Anderson in the suit, said the rules outlined in the settlement are what the U.S. Constitution requires and what the U.S. Supreme Court has ruled as a constitutional requirement for judges.

“This is a victory for fairness and due process,” Korobkin said. “It’s also hopefully a precursor to having a statewide court rule in Michigan that makes it clear that judges must provide either payment plans, or some opportunity for people who can’t afford to pay their fines and fees to receive a sentence that makes sure they’re not sentenced for being poor.”

Korobkin said that people being sentenced to effectively “debtors prisons” is a national issue. A U.S. Department of Justice investigation into the practices of Ferguson, Missouri, determined that “pay-or-stay” practices can be found all over the country, he said, as courts and municipalities are under pressure to generate revenue through their dockets following the Great Recession.

“What we’re going to need to look at in the long term is whether courtrooms are the appropriate place to collect taxes for municipalities, and hopefully this judgment from this case in Eastpointe — and also statewide policy changes, such as a new court rule — will help put an end to that practice,” he said.

Using sentences to shore up revenue losses puts too great a burden on poor members of society and leads to some being put in prison, Korobkin said. He said payment plans, reduced fees or alternative punishments like community service are preferable to jail time.

Rombach said he still contests whether or not Gerds had been issuing “pay-or-stay” sentences as a practice in the 38th District Court.

Rombach noted that the order from the circuit court does not say anything on that topic, though it does say that any pending cases involving Anderson are subject to these new rules.

The rules in the order are in effect for two years, and while Rombach said they were designed to match the proposed rules before the Michigan Supreme Court, any changes made to the proposed ones would supercede those in the order.

The ACLU is also seeking a federal investigation into “pay-or-stay” sentencing practices nationally.

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