Are You Unable To Pay Your Court-Imposed Fines (LFO's)? Changes In The Law May Provide Relief To Those Who Can’t Get Out Of Debt

June 19, 2018 Written by

After decades of over-criminalization of behavior, the United States now has more Americans with a criminal record than were present in the country when it was founded. In fact, according to the Department of Justice, one in four Americans has an arrest or conviction record that shows up on a basic background check. Half of the children in the United States have at least one parent with a criminal record. Additionally, the Brennan Center for Justice at New York University School of Law, reported that one in three men will be arrested by the age of 23. And, for those of you who are visual, picture that if you took all of the Americans who have a criminal record and made them their own country, it would be larger than Canada. With these statistics, it isn’t much of a surprise that some rather overwhelming consequences flow from this reality.

While most people assume incarceration is the most difficult aspect of paying one’s debt to society, it is often the financial debt that continues to exist decades after release. Court-imposed fines and fees chain a person to the system well beyond their time in prison. For this reason, it is very exciting to announce that the law has changed and there could be relief for thousands of people who are unable to pay their Legal Financial Obligations.

In March, Washington State House Bill 1783 was signed into law and went into effect on June 7th—impacting nearly 20 statutes pertaining to Legal Financial Obligations (LFO). The changes encompass many aspects of LFOs including the priority of payments but they also require the Court to evaluate whether a person who has failed to pay their LFOs can presently or in the future make the payments. Additionally, if a person is found to be indigent based on RCW 10.101.010(3) (a) through (c), the court SHALL modify, reduce, or waive the obligations, or convert them to community restitution hours.

The priority of payment is relevant because, in many counties, a yearly $100 collection fee is collected and then the clerk can decide how to apportion the rest of your payment. If your $300 payment goes to the $100 collection fee and $200 to the office of public defense, your balance toward restitution and the crime victim penalty assessment hasn’t changed. The latter two are part of your LFOs that can never be reduced or waived while the collection fee and other fines are at the Court’s discretion. The new portion of RCW 9.94A.760 reads in part:

(2) Upon receipt of each payment, the county clerk shall distribute the payment in the following order of priority until satisfied:
(a) First, proportionally to restitution to victims that have not been fully compensated from other sources;
(b) Second, proportionally to restitution to insurance and other sources with respect to a loss that has provided compensation to victims;
(c) Third, proportionally to crime victims’ assessments; and
(d) Fourth, proportionally to costs, fines, and other assessments required by law.

*This new priority of payment schedule is changed throughout the RCW and including in Chapter 10.1, the general provisions of Criminal Procedure.

Several statutes were changed to address the Court’s inquiry into ability to pay when there is a violation of the judgment and sentence with regard to LFOs. RCW 9.94A.6333
(Sanctions—Modification of sentence—Noncompliance hearing) has several new sections but, most relevant, is the section dealing with a violation that was NOT willful.

RCW 9.9A.6333(3):
(3) If an offender fails to pay legal financial obligations as a requirement of a sentence the following provisions apply:
(a) The court, upon the motion of the state, or upon its own motion, shall require the offender to show cause why the offender should not be punished for the noncompliance. The court may issue a summons or a warrant of arrest for the offender’s appearance;
(b) The state has the burden of showing noncompliance by a preponderance of the evidence;
(c) The court may not sanction the offender for failure to pay legal financial obligations unless the court finds, after a hearing and on the record, that the failure to pay is willful. A failure to pay is willful if the offender has the current ability to pay but refuses to do so. In determining whether the offender has the current ability to pay, the court shall inquire into and consider:
(i) The offender’s income and assets; (ii) the offender’s basic living costs as defined by RCW 10.101.010 and other liabilities including child support and other legal financial obligations; and (iii) the offender’s bona fide efforts to acquire additional resources. An offender who is indigent as defined by RCW 10.101.010(3) (a) though (c) is presumed to lack the current ability to pay;
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(f) If the court finds that the violation was not willful, the court may, and if the court finds that the defendant is indigent as defined in RCW 10.101.010(3) (a) through (c), the court shall modify the terms of payment of the legal financial obligations, reduce or waive nonrestitution legal finical obligations, or convert nonrestitution legal financial obligations to community restitution hours, if the jurisdiction operates a community restitution program, at the rate of no less than the state minimum wage established in 49.46.020 for each hour of community restitution. The crimes victim penalty assessment under RCW 7.68.035 may not be reduced, waived, or converted to community restitution hours.

*The same changes were made to RCW 9.94B.040 (for crimes committed prior to July 1, 2000) and in substance in Title 10 pertaining to Criminal Procedure within RCW 10.01.180—Fine or costs—Default in payment—Contempt of Court—Enforcement, Collection Procedures (the paragraphs are ordered differently).

While it is impossible to truly understand what LFOs are and how they impact a person with the information in one blog (or even several), the reality is that LFOs typically keep a person in “the system” for decades. Without paying off all of the LFOs, a person can not receive his or her Certificate of Discharge (COD). This Certificate starts the waiting period for vacating a conviction—the ultimate step in freeing oneself from the criminal justice system.

LFOs generally include:

Victims Penalty Assessment —(for each case or cause of action)—$500 for felony or gross misdemeanor, $250 for misdemeanors

Fines — Class A felonies—up to $50,000
Class B felonies—up to $20,000
Class C felonies—up to $10,000

Restitution—to restore property or its value back to the victim of a crime

Crime Victims’ Compensation Program

Costs for Public Defense

Court costs

Other fines—for example, $250 to Washington State Patrol if they stopped you for a DUI

Additionally, the law mandated a 12% annual interest rate on LFOs.

While the Washington Supreme Court ruled in State v. Blazina (2015) that the courts must make “an individualized inquiry” into the defendant’s ability to pay before imposing LFOs, it seems that some courts are not making a sincere inquiry. According to the Office of Public Defense, more than 80% of defendants charged with felonies are indigent. Due to low levels of education, they also make up a disproportionate share of the population that struggles to find employment. This is likely the reason that the Administrative Office of the Courts reports that only 23.8% of LFOs are actually paid. Meeting basic needs for this population is very difficult—made more difficult by having arrest warrants routinely issued for non-payment on LFOs.

In a report by the ACLU of Washington and Columbia Legal Services, victims of this problem were interviewed and their struggle revealed. In the case of a Benton County woman who served time for two drug-related convictions, she was ordered by the Superior Court to pay a total of $6,920 in LFOs. The interest began accruing as soon as she was sentenced and accrued while in prison. She had $2,124 in interest. If she paid the $40 a month payment (not including her payments to District Court), it will take her 14.75 years to pay the principal. With the interest added, it will take 28.25 years to pay it off. Therefore, it will be nearly 30 years before she can receive her Certificate of Discharge.

Considering that the people who need to petition for help with their LFOs are typically living below the poverty line and/or homeless, hiring private counsel is unlikely. The ACLU, Columbia Legal Services, and other organizations around the state have been writing articles and providing information regarding the process. The site www.washingtonlawhelp.org has a fairly thorough explanation of LFOs as well as a very thorough article on “How to Ask a Washington State Court to Reduce or Forgive Your Legal Financial Obligations” on their website (includes forms).

If you know someone who is struggling under the debt of LFOs, it might be worth directing them to the information found on the ACLU Washington website or the Washington Law Help website. We have already learned of people having thousands of dollars waived through this process. While it is time consuming, it may be the only way to start a new life.

As always, we must remind you that this article is not intended to provide legal advice. No blog or internet article can substitute for guidance by a licensed attorney. However, this topic is very important to us and we hope you find the changes in the law inspiring. After so many years practicing criminal law, we are concerned about the individuals and families who are impacted by LFOs and we want to see everyone move on to a productive life. Witt Law Group is a criminal defense and personal injury law firm with offices in Gig Harbor and Bremerton Washington.