The Court Debt Spiral

For Hawai‘i residents low on funds, a simple court fee or fine can perpetuate poverty and entrenchment in the criminal justice system....

If you have money in Hawai‘i, a traffic violation or a low-level criminal charge is unlikely to alter the course of your life. If you don’t have money, it could follow you for years, keeping you from driving to work or picking up your kids from school on an island with inadequate public transportation.

Christian is a 50-year-old single father of two and a glassblower, but making ends meet has been difficult lately since he’s not allowed to drive from where he lives in Kula. He hasn’t paid the Hawaii Judiciary $531 in court fees and fines, so he received four “stoppers” that prevent him from renewing his driver’s license until he pays up. There’s also a warrant out for his arrest for missing a court-ordered “proof of compliance” hearing, when a judge would follow up on his debt payments. And his license is suspended for a year. Still, he offered to meet in a Pukalani parking lot—he had to wash his clothes at a nearby laundromat and pick up his 14-year-old son from high school. His faded white van was parked with the tail out of view, to hide the expired safety inspection sticker from five years ago. Christian, who has long dark hair, glasses, and a short graying beard, compared himself to Han Solo of “Star Wars.” “I’ve been dodging the Empire my entire life,” he said. (He asked to use his first name only, citing fear of prosecution and harassment.)

Christian’s trials began in September of 2019 when he was caught driving with an overdue vehicle tax, a lapsed safety check, and no insurance. (He had been given the van when he first arrived on-island.) The criminal charge for driving without insurance was dismissed, but the two remaining infractions left him owing the state $140, an amount he says he remains unable to pay. Since then, he has been charged three more times for driving without a valid license and without insurance. He has attended numerous compliance hearings months apart, but he missed two of them, prompting a judge to order a bench warrant for his arrest each time. In his most recent sentence, he was ordered to complete 295 hours of community service and pay $14 in driver education fees and $60 in crime victim compensation fees, although he contends his offenses were victimless. The charges grew his debt to the $531 he owes today, an amount he is even less likely to pay.

“I can’t guarantee them any money because I can’t even fucking guarantee that I can survive without being able to drive,” Christian said. He estimates that he drives an average of 20 miles a day, buying groceries and shuttling his son to and from school. “How am I going to feed two kids on Maui without even being able to drive?” he said.

While he waits out his license suspension, Christian can’t square his debt to overturn his license stoppers. Prohibited from driving but unwilling, and possibly unable, to stop, he will likely be caught again and charged more fines and fees.

Christian sees his predicament as unfair and self-reinforcing. “I didn’t cause any accidents, I didn’t damage any property, and no one was hurt,” he said. “If a rich person could pay for something that a poor person has to go to jail for … that seems disproportional.” 

David Pullman became a public defender in Wailuku last April, and by the time he started representing Christian this May, he had already handled hundreds of similar cases. Hawai‘i’s system of fees and fines struck him as “barbaric,” compared to California, where he had practiced law for more than a decade. “It’s turning people into a permanent underclass,” Pullman said.

Put succinctly by Zach Raidmae, another public defender: “It’s gross, and kind of medieval.”

On a Thursday morning in late September, a dozen people—some in T-shirts, some in aloha shirts—sat in a hall outside a Wailuku district courtroom waiting for their proof of compliance hearing. On the wall by the door, a stack of papers listed 36 names of people expected to show up. Pullman stood before the judge and represented most of the people present. Some hearings went long—five or so minutes—but most flew by. Eventually, the judge reached a stretch of names of people who hadn’t shown up, churning out four bench warrants in four minutes. The next minute, the judge set the bail for one warrant at $500 that Pullman asked to stay, saying it was only the defendant’s first time driving without a license. The judge reduced it to $250, then moved on, ordering three more warrants in the next two minutes. That morning, many of the warrants were ordered on people charged with driving without a license or without insurance. 

Under Hawai‘i state law, judges are tasked with assessing every defendant’s ability to pay and charging them accordingly. Still, people with limited funds often end up owing fees and fines and not paying them on time. When an individual with a criminal charge doesn’t pay on time, the court orders them to appear before a judge. When they miss a court date, as they often do, a warrant goes out for their arrest with a new charge, contempt of court.

When they are brought to jail, they accrue more costs and receive a new court date to monitor the payment of their now-larger debt. If they remain unable to pay, a “stopper” can go on their license, preventing its renewal. This often results in citations for driving without a license because they have to drive to work to pay off their debt, to overturn their license stoppers. Inevitably, they keep driving, amass more debt, and spend more time in jail.

There were 707,711 driver’s license stoppers active in Hawaii as of October 1, when a spokesperson for the Hawaii Judiciary fulfilled a request for data. That’s about half of Hawai‘i’s population, or 75% of the number of licensed drivers in Hawai‘i in 2019. Of course, some of these stoppers belong to the same individual, and others belong to people who visited and left. Maui County courts issued 69,767 of the active stoppers, while Oahu’s courts issued 457,694, Hawai‘i Island’s issued 148,342, and Kaua‘i’s issued 31,908. Just in the past year, the state issued 27,879 driver’s license stoppers that were active as of September 17.

In one notable case, a Maui woman was convicted for driving without a valid license after she crashed a car in 2006, leading to 63 court dates since, with her next scheduled for December 2022. She attended 39 hearings, missed 24, has been sentenced to jail 18 times, and still owes $1,625 in restitution to the “victim,” Kaanapali Operators Association, Inc., which originally requested $2,046.25 in restitution in 2007. In Hawai‘i, failing to pay restitution isn’t cause for incarceration, but missing a proof of compliance hearing is.

“This should be a civil matter,” Pullman, who also handled this case, wrote in a text. “At least 20 cases stem from missing court dates for that one case and became their own case of contempt of court for which she would do between one and 10 days in jail,” he wrote. “She is poor and mentally unstable and never gonna pay this down.”

At the Hawaii Supreme Court, Maui Public Defender Ben Lowenthal is challenging the constitutionality of certain court fees. Photo by Viola Gaskell.

While fines are generally punitive, some fees relate less directly to the charges. Hawai‘i courts have 84 fines and fees they can levy that contribute to the state’s general fund, and 55 that go to “special funds”—reserves that various government agencies can spend on specific programs. Some special fund programs provide a “service” to the person charged, like driver’s education or an ankle monitor for probation; others don’t clearly return anything to the defendant and can be less clearly related to a prosecutor’s charges.

For example, Hawai‘i law mandates that sentencing courts “shall order every defendant to pay an internet crimes against children fee of up to $100 for each felony or misdemeanor conviction,” unless a judge finds the defendant unable to pay. This means that even defendants whose crime is unrelated to internet crimes against children must pay into a special fund which the Department of the Attorney General then funnels to local law enforcement to investigate and prosecute internet crimes against children.

Ben Lowenthal, another public defender in Wailuku, challenged the constitutionality of such a fee, and two others, before the Hawaii Supreme Court in July. “The court’s acting like a tax collector,” he told MauiTimes. “They’re taking money from people, and they’re putting it in to fund an agency.” Richard Rost, the deputy prosecuting attorney representing the state and fighting Lowenthal’s appeal, said, “We disagree with that analysis.”

The state legislature and county governments set taxes for Hawai‘i residents. At the same time, the legislature mandates that courts impose certain fees on defendants. But some fees behave like taxes, Lowenthal claims, making them “unconstitutional delegations of the taxation power” by the legislature. “For a lot of these court fees, the legislature is directing sentencing courts to order criminal defendants to fund government services,” Lowenthal said. “And that’s because criminal defendants tend to be people we as a community don’t like.”

In exchange for the internet crimes against children fee, for example, “No service or benefit is rendered,” Lowenthal wrote in his argument. “This is a mandatory contribution ordered upon every convicted defendant to fund the Department of the Attorney General.”

“When courts become revenue centers for the government, the independence of our judicial system is endangered,” Lowenthal wrote. Rost disagreed, saying, “It’s the legislature that’s deciding how much these fees will be. I don’t think that there’s any threat to the independence of the Judiciary.”

In 1833, Congress abolished debtor’s prison, and still 150 years later, the Supreme Court ruled that the government cannot incarcerate an individual unable to pay a fee or fine, unless their refusal to pay is willful. Today, people who cannot afford their court debt don’t always end up in jail, but they can be punished with a different sort of confinement: a suspended or nonrenewable license. In 2018, the Washington Post reported that at least 41 states, and Washington D.C., suspended or revoked more than seven million licenses of drivers who failed to pay traffic tickets or respond to tickets by showing up in court.

In 2020, U.S. Representative Jerrold Nadler (D-NY) and U.S. Senator Brian Schatz (D-HI) introduced the State Justice Improvement Act, an attempt to reform this system nationally, but the legislation didn’t receive a vote. The bill, H.R. 6061, is damning: It states that there is “no clear evidence that fines and fees are an effective crime deterrent,” that some people committed a crime to pay their court debt, and that the financial burden falls disproportionately on low-income people and people of color, “which in turn aggravates and perpetuates poverty and racial inequalities.”

State legislators otherwise rarely face organized opposition to fees and fines, said Lisa Foster, co-director of the Fines and Fees Justice Center, because they can lean on the notion that “nobody likes criminals.” Regardless, these debts often go unpaid, resulting in license stoppers that further impede debtors’ ability to pay. “What’s the point of having it if nobody’s paying,” Foster said, “except to make people miserable?”

While Pullman doesn’t “see such a disparity racially as far as who’s getting these fees” in Hawaii compared to California, some advocacy groups do. In 2020, testifying in support of an act which would allow people to petition to remove their license stoppers despite their court debt, the Hawai‘i chapter of the American Civil Liberties Union and the Office of Hawaiian Affairs both argued that stoppers harm impoverished people, a disproportionate amount of whom are Native Hawaiians. Later that year, the Hawai‘i legislature passed the bill, Act 59, but people found guilty of speeding, driving without insurance, or not complying with child support, are considered ineligible to apply. 

The Hawaii state legislature has passed laws authorizing the judiciary to charge fines and fees since 1974. According to Lowenthal, the legislature “has abdicated its duty to fund the government services and agencies through appropriations in the general fund and has left our courts with the burden of exacting money from convicted defendants.”

In 2014, the legislature signed the internet crimes against children fund into law, citing “a lack of dedicated resources” that led to “only about two per cent of known child exploitation offenders” being investigated. Still, state law requires every sentencing court to order every convicted defendant, no matter their crimes, to pay the internet crimes against children fee, returning nothing directly back to the payer, Lowenthal wrote.

Another charge that Lowenthal is challenging the constitutionality of is the crime victim compensation fee. The fee contributes to the state Crime Victim Compensation Commission, a government agency that compensates victims of violent crime for crime-related expenses like emergency medical care or funeral services. Pamela Ferguson-Brey, executive director of the CVCC, argued that the fee is not unconstitutional. “If you look across the country, the majority of compensation programs are funded in this way. It does not appear that there’s an issue,” she said. 

Victims of crime can receive restitution after lengthy criminal court proceedings, but if the crime was violent, they can also apply to the CVCC for more timely funds. “People talk about how offenders cannot afford to pay the restitution, but the reality is the burden is transferred to victims,” Ferguson-Brey said. “I think the notion of restorative justice is that the people who commit crime are making good to the community you hurt through committing a crime.” The legislature mandates courts to charge the fee for non-violent criminal offenses, like driving without a valid license and driving without insurance, though victims of non-violent crime are not eligible to apply for funds from the CVCC.

The legislature stopped funding the CVCC in 2003, so it has relied on the court-ordered fee, plus federal matching funds, to pay staff salaries and victims. The most recent data, from the 2019 CVCC annual report, shows that between July 1, 2018, and June 30, 2019, the CVCC made 536 payouts—70% of which were $350 or less—totalling $321,707.08. But since the CVCC’s inception in 1998, “the cost of employees has increased significantly,” said Ferguson-Brey, whose salary rose from $78,132 in 2012 to $135,720 in 2020, according to Honolulu Civil Beat’s database of state worker salaries. Despite receiving funding from the legislature to survive the pandemic, the CVCC is now half-staffed “because we don’t have enough money,” she said.

The 2019 CVCC annual report states, “The Commission is acutely aware that its ability to remain self-sufficient depends on judges ordering the Compensation Fee, and the Judiciary successfully collecting the Compensation Fee from offenders in all eligible cases.” It continues, “The Commission will continue to closely monitor whether or not judges order the Compensation Fee, and whether or not the Judiciary collects it, in all eligible cases. The collection of the Compensation Fee by the Judiciary directly impacts the Commission’s ability to continue to assist the victims who apply for compensation and without these funds the Commission will be unable to provide compensation going forward.”

In Hawaii, a judge can determine the amount of an individual fine or fee. Alternatively, a judge can waive fees and suspend payment of fines. (Community service can pay off fines, but not fees.) In his appeal to the Supreme Court, Lowenthal argued that his client Joshua Yamashita would never be able to afford the fees and fines, and that the judge insufficiently assessed his ability to do so. Rost, the prosecutor, said, “If you don’t have to pay it currently, your current ability to pay doesn’t really matter. It should be based on when the obligation to pay takes effect.”

Whether these financial charges constitute taxation, and thereby violate the constitution, depends on where the money ends up, according to Lowenthal: If the fee goes to a government agency that doesn’t serve the payer, the fee behaves like a tax. Rost disagrees. “They’re called fees but they’re really more akin to fines. Where the money goes or how it’s used isn’t really the question,” he said. “The label doesn’t really matter in the long run.”

On May 31, 2019, at the Second Circuit Court in Wailuku, the fees quickly added up as Judge Rhonda Loo sentenced Lowenthal’s client Joshua Yamashita. Loo ordered Yamashita to pay the maximum $100 internet crimes against children fee for each of his 21 criminal convictions—none of which harmed children via the internet—for a total of $2,100. She tacked on the crime victim compensation fees ($2,075) and the drug demand reduction assessment fee ($100), so Yamashita’s fees totalled $4,275.

Lowenthal is challenging the constitutionality of each of the three fees. He wrote that his client “has not participated in any program and his money”—by paying the drug demand reduction assessment fee—“does not offset any of the services in prison. This payment funds government services that are unrelated to Mr. Yamashita.” After a motion from Lowenthal, the circuit court struck the internet crimes against children fee, citing Yamashita’s “current” inability to pay, but upheld the others, asserting that he would be able to pay in the future. The fees: $2,175. Then Loo ordered Yamashita to pay an additional $8,767.20 in restitution and $1,810 in criminal fines. Yamashita’s final bill: $12,752.20. His debt will follow him even after he serves his five-year prison sentence.

The Hawaii Supreme Court has not yet scheduled its next hearing of Lowenthal’s case. Even if his case succeeds, that would only render three fees unconstitutional, leaving a host of other fees and fines for courts to levy. In the meantime, people who cannot afford to pay their fees and fines will face immobilizing consequences: license stoppers, and potentially additional criminal penalties for driving with expired licenses, possibly spiraling deeper into the criminal justice system. 

In the Pukalani parking lot in late September, Christian watched a police cruiser roll past and park on the opposite side of the lot. His rear license plates and expired safety inspection were out of sight, facing away from the lot, and he showed no sign of worry. But he said he wouldn’t want his son, in the front seat of the car, to see him get picked up. 

Christian says that nowadays he’s trying to minimize how much he moves. If he were able to park his van somewhere with heavy foot-traffic, he says he could blow glass to sell to tourists and pay off his debts in a week. For now, unable to drive legally, the man is stuck.

Jack Truesdale

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