Report on waived criminal court fees shows a divide between some counties

A new statewide report on judges and fee waivers paints a picture of starkly different legal cultures within the state, showing that judges dismiss criminal court costs with widely varying rates of frequency.

Download the report here.

Judges and lawmakers offered several reasons for the discrepancies, including economics, community culture and even proximity to the legislative building.

The North Carolina Administrative Office of the Courts compiled the county-by-county data at the behest of legislators who hope to hold courts accountable for recouping costs from criminal defendants. Since July 2011, judges have been required to make findings of just cause whenever they grant a full or partial waiver of criminal court costs. The requirement came as part of a legislative provision that was folded into a state budget bill.

Every waiver is recorded in the court system’s statewide computer database – or at least it is supposed to be. The Administrative Office of the Courts produced reports for two periods: July-September 2011 and July 1, 2012-June 30, 2013. A spokeswoman for the office said a report was not produced for the nine-month gap between the reports. The office also was unable to provide statistics on the success rate in collecting costs when they are imposed.

Guilty defendants can be ordered to reimburse the state for their jail stay, being on probation and for public defender fees, among many other costs. Most of the money is funneled into the state’s general fund and does not go back to the court system.

Sen. E.S. “Buck” Newton, a civil litigator in Wilson, co-chairs the Joint Legislative Oversight Committee on Justice and Public Safety, which has been studying the data on waived costs. He said the legislature does not intend to punish counties with high numbers of waivers. He called the waiver statistics important “from a taxpayers’ protection standpoint.”

“If we see areas that have an unusually high amount of waivers that might be useful for local judicial officials to realize that they’re out of what might be the normal range,” he said. “That could be something the legislature might want to consider down the road if there appeared to be a problem.”

While the yearlong report is filled with contrasts, the most dramatic discrepancy is between the counties of Robeson and Wake. The counties are separated by about 100 miles, but the economic gap between the two places is vast.

Robeson is the state’s poorest county and Wake is one of the wealthiest. More than 30 percent of Robeson’s residents live below the poverty line while 10.9 percent of Wake’s residents fit into that category. The median household income in Robeson is $30,617, less than half of Wake’s median income of $65,826.

“We’re struggling here,” said Robeson County Chief District Court Judge James Carmical.

The administrative office’s report shows that judges in Robeson waived costs for defendants 4,284 times between July 2012 and June 2013.

During that same period, judges in Wake allowed 274 waivers, despite having a population of 1 million people – nearly eight times as many as Robeson.

‘Way out of whack’

Carmical gets a little defensive when he’s shown the numbers for the first time. He wonders whether people are going to think that he and his three fellow district court judges are in the wrong.

“I don’t hear cases based on statistics,” he says. “I have to make decisions about waiving costs based on the facts of each case. The folks I see are on the edge financially.”

The report lumps together data for both the district and superior courts for every county in the state, but judges in the latter, lower level court are responsible for the bulk of the waivers because they deal with a far greater number of defendants on a daily basis. Most cases that end up in their busy court involve minor misdemeanor crimes and traffic tickets.

“If I had a traffic ticket I’d hate to have to pay the fine and costs, which are between $400 and $500,” Carmical said. “But it wouldn’t cause me to miss a house payment or be unable to feed my children. I see that every day.”

Carmical, a 25-year veteran of the bench, describes himself and his fellow judges as the “conscience of the community.”

“I feel strongly about this, about this piling on of people who have limited means and are struggling,” Carmical said. “Our numbers are way out of whack compared to other folks, but our circumstances are different here.”

Same factors, different viewpoints

Carmical’s equivalent in Wake County is Judge Robert Rader. The two men consider the same factors when considering a waiver: Does the defendant have a job? What are his monthly expenses? Does he have child support obligations? Is he disabled? Does he owe the victim restitution?

But what earns Carmical’s sympathy will not necessarily persuade Rader to let a defendant off the hook.

Carmical said he waives costs when defendants are unemployed, disabled, or broke single parents, basically whenever he believes that imposing costs would be “an undue burden on folks, given where they are.” He adds, “I don’t feel the need to apologize for that.”

Rader said he rarely waives costs. When he does issue a waiver, it is usually because the defendant is homeless.

“If we’re dealing with a homeless person who’s trespassing, say camping under a railroad bridge, and he doesn’t have two nickels to rub together and there’s no way he can come up with the $200, then I’d waive in that situation,” he said.

He added, “In Wake County the culture for many years has been that court costs have been assessed. I think it’s appropriate to assess them in the vast majority of cases.”

Wake County Clerk of Court Lorrin Freeman, a former assistant district attorney, estimated that about 90 percent of defendants in her area pay costs when ordered to do so. She added that her county’s stance on costs might be related to the proximity of the General Assembly.

“We live in the same county where the legislature is, and the legislature has been clear that it’s not their intent that costs be routinely waived,” she said. “We’re certainly aware of that.”

David Snipes, an assistant public defender in Wake, said he and his colleagues who work in the district court trenches hardly ever ask for waivers. When most requests are denied, what’s the point in continuing to ask?

“Even if the folks are deemed to be indigent by the court, that’s just one of the factors. You have to have multiple factors even to have half a chance,” Snipes said. “Up here, we had a judge who is now retired and you could probably get a bill through Congress quicker than getting costs waived with him.”

In Robeson County, the judges have gotten so used to being asked to dismiss costs that they sometimes automatically grant waivers before a request is made if they’re familiar with the defendant’s circumstances, said the county’s chief public defender, Angus Thompson.

“Our courts shouldn’t be debtors’ prisons,” he adds. “For people who have money, court costs are not the same to them as someone who can afford it.”

‘Friendliest in the state’

The county with the highest number of waivers in the state is Cumberland, home to Fort Bragg. Judges there issued 8,599 waivers in a year, more than double Robeson’s total – the state’s second highest.

Several sources, including state Rep. Pat Hurley, who co-chairs the joint legislative committee that reviewed the waived cost report, suggested that the county’s judges might be sympathetic to service members.

But Cumberland County Chief District Judge Elizabeth Keever dismissed the notion. She said, “That’s not a basis that I think anybody would have in waiving costs. They [soldiers] generally have more funds than other people coming to court.”

Keever said she often grants waivers when she believes that imposing court costs will prevent a defendant from paying restitution to a victim. Carmical in Robeson took the same position.

Cumberland’s head public defender, Bernard Condlin, said he was “shocked” by the county’s high issuance of waivers, more than 98 percent of which were for partially waived costs. The reverse occurred in Robeson, where 88 percent of waived costs were dismissed completely.

“If we’re partially waiving over 8,000 court costs a year, I’d say we’re the friendliest in the state,” said Condlin, who argues that judges should impose costs more often than not.

“For me, it’s like sitting down at the poker table,” he said. “If you get bad cards you can’t get your money back. It’s the cost of doing business.”

Right or wrong?

While legislators say keeping track of waived costs is all about accountability, some judges wonder whether lawmakers intended for the recording requirement to have a chilling effect.

“Is there an implied threat in this? I don’t know,” Carmical said. “Everything we do is public business. I don’t mind anybody looking at what I do. … But is one end of the extreme right? Is the other end wrong?”

Waiver numbers could have an effect on judicial elections, with challengers wielding the statistics against their opponents by, for instance, accusing them of being too soft on defendants.

The existing report only shows waivers for each county. The next report, slated for release in February, is expected to be more detailed. A provision folded into this year’s budget bill allows the state to publish the names of judges alongside their individual waiver totals.

Follow Phillip Bantz on Twitter @NCLWBantz