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It's a dreary Monday morning in Robeson, the poorest county in North Carolina, and the streets of Lumberton, the county seat, are mostly empty––except around the courthouse. Inside, I find assistant public defender Deanna Glickman meeting clients in the hallway. "You don't want to deal with that shit again," she says to one of them. "That was too damn close."
Her client, a young man from the Lumbee Tribe wearing cargo shorts, almost got locked up; not for committing a crime, but for failing to pay the money he owes from a previous conviction. "I'm not saying I understand, because you and I live different lives," says Glickman trying to convey the seriousness of the matter to him. "But I don't want you to go to jail."
She gives him her number and turns to the next person in line, a Black teenager wearing a jacket emblazoned with a photo of Dr. Martin Luther King, Jr. and his quote, "Injustice anywhere is a threat to justice everywhere." Then Glickman speaks to another defendant in line, James, a Black man in his 30s, who owes over $700 for a DWI conviction in 2016.
James completed his 24-hours of community service but has a prior felony on his record, so he can't find steady work and can't afford the DWI fees after making the monthly child support payment for his son Jordan. So, Glickman begged for his extension too.
She'll repeat the process with every client on this monthly court date that's set aside for those facing jail time for failure to pay court costs and fines. These defendants are overwhelmingly people of color––in Robeson, white people make up thirty percent of the population, but I only see four amongst about a hundred packed in Courtroom 4A; standing room only.
Everyone else is either Black or Lumbee. Glickman, a short white woman, with short hair, is three-years out of law school and was placed in Robeson by Gideon's Promise, an organization which sends public defenders to low-income communities.
"I was practicing [in Robeson] a year before I represented my first white defendant," Glickman says. "The racial makeup of the county is not indicative of the racial makeup of the courtroom."
And everyone is hard up for money. If they had well-paying jobs they wouldn't be here on a Monday––but they don't. So, they rely on Glickman, hoping the judge will waive their fines and fees or grant an extension of time to pay.
It's a decision that judges in North Carolina have the discretion to make, but lawmakers are whittling away at that judicial decision-making power and increasing the likelihood that poor North Carolinians will spend time in jail for non-violent misdemeanors (trespassing, worthless check, larceny) because they cannot afford to pay the state.
A fee for everything
When a person is convicted of a crime in North Carolina, all manner of fines and fees are assessed onto their punishment: $147.50 as a standard fee, $12 for using the facilities, $4 to support retiring law enforcement officers, $10 for every day served in pretrial confinement.
A hundred dollars for impaired driving, $600 for a hospital lab fee, another $600 if an expert testifies, $200 for failing to appear in court, $250 for the pleasure of doing any community service ordered by the court.
Someone has to pay the costs of running North Carolina's criminal justice system (district attorneys, public defenders, bailiffs, clerks) but that's not where most of the money goes.
"Only a very small sliver of all the court costs that defendants pay goes directly to the court system," Jamie Markham, an associate professor at the University of North Carolina's School of Government, tells Scalawag in a phone interview. "It's the $4 technology fee, and the $60 attorney appointment fee that goes directly to indigent defense services. Everything else gets filtered through the general fund."
North Carolina cut corporate and income taxes in recent years, and the more than $300 million in annual court fees supplements that revenue loss. "It's on the shoulders of poor people and people of color," says Cristina Becker, an attorney for the North Carolina ACLU, during an interview at her office in Raleigh.
Low-income North Carolinians often cannot afford these burdensome fees, which contribute to a cycle of poverty and incarceration. "Instead of taking them out of the criminal justice system, they're keeping them in," says Becker.
According to the North Carolina Division of Motor Vehicles almost a million (933,000) citizens are currently without license, not because of their bad driving––but for failing to pay fines on minor traffic violations.
In a state with the second largest rural population in the country, many North Carolinians lack access to public transportation and need to drive for work or child care, often ending up in jail for driving without a license.
North Carolina cut corporate and income taxes in recent years, and the more than $300 million in annual court fees supplements that revenue loss. "It's on the shoulders of poor people and people of color," says Cristina Becker.
Blood from a stone
In North Carolina, judges have the ability to lessen the financial burden imposed at sentencing and customarily help the elderly grandmother on a fixed income, the young student or service-member, and plenty of others facing hardship.
Judges may reduce the costs of expert witnesses, strike the penalty for failure to appear in court, waive fees at sentencing, revoke fees when a person's default is in good faith, or convert the amount owed to a civil judgment. But it's gotten harder.
In 2011, North Carolina's General Assembly required "just cause" for waiving costs and a year later requested written findings in each case. Then, in 2014, legislators ordered the tracking of waivers by each individual judge (the latest report can be found here).
In 2017, the legislature prevented judges from waiving costs without first "providing notice and opportunity to be heard by all government entities directly affected"––meaning up to 615 different state and local agencies.
In North Carolina, judges have the ability to lessen the financial burden imposed at sentencing…but it's gotten harder.
When the law passed in November, 2017, the change effectively ended a judge's ability to waive court costs and fines because a local clerk couldn't possibly notify every agency when relief was requested. But then North Carolina's Administrative Office of the Courts took on the responsibility by mailing a monthly letter to the 615 agencies with a link to the state's court calendar.
AOC's actions are now being reviewed by Republican state legislators to determine if they comply "with the spirit of the provision." But according to Becker at the ACLU, the law is a waste of time and energy. "The agencies are not coming to those hearings," she says. "They don't have the manpower. They know they're trying to get blood from a stone."
Becker contends that because of confusion surrounding the law and the notice requirement, district court judges are opting to play it safe and not waive costs during sentencing; and the legislature wins.
Jail for debtors
Becker has observed court in Robeson where she witnessed a mother forced to choose between paying rent and paying the court.
"She knew if she didn't pay the court she'd be in jail, and as a single mom it wasn't an option," says Becker. "What she had to face after was her landlord and the prospect of getting evicted."
A few weeks later, I visit Lumberton and stand in the hallway watching Glickman, the public defender, confer with clients at the bottom of America's socio-economic ladder.
It's 10:00 a.m. now and Glickman heads back into the courtroom to represent all five of the inmates brought in wearing orange, all them incarcerated for not paying court costs or fines.
First up is Richard, a Lumbee man with long hair, graying at the tips and tied up in a ponytail.
"He's been in and out of the hospital and medical expenses caused his inability to pay or post bond," says Glickman. Judge Dale Deese, himself a member of the Lumbee Tribe, excuses Richard's debt because he's already spent eight days in jail for his crime of loitering.
Becker contends that because of confusion surrounding the law and the notice requirement, district court judges are opting to play it safe and not waive costs during sentencing; and the legislature wins.
The next defendant, Greg, who is middle-aged and Black, "lost his job as a result of incarceration," said Glickman. "Even if he got out today it'd take time for him to get back on his feet." The judge gives Greg credit for the 26 days he'd served in custody and releases him, revoking the remaining debt for his $227 worthless check conviction.
Judges cannot lock someone up for being poor alone; they must find a "willful refusal" to make payments. But those decisions are in the discretion of each judge. And North Carolina lawmakers are considering judicial redistricting; which could lead to the election of more judges who ascribe to the pull yourself up by the bootstraps mentality.
Glickman knows what that means. "I've had a client who got hit by a car and was in a leg brace, who was ordered to spend 24 hours in jail for a willful violation even though everyone in the county knew he was homeless," she says.
Confusing counsel
Since the 2017 law went into effect at the beginning of this year, Glickman has seen plenty of court officials who are unaware that the Administrative Office of the Courts created a workaround to meet the notice requirements of the new law without actually curtailing what judges are able to do.
"The judge will say 'well there's this new law,'" explains Glickman. "And I'll say, 'I've got this document from AOC,' and judges aren't used to hearing that."
Because of Robeson's monthly noncompliance court, Glickman's the only public defender in the state who works directly on these issues. "I'm not inventing any type of new law," she says. Rather, she often cites Bearden v. Georgia, a 1983 U.S. Supreme Court case outlawing debtor's prisons.
"Simply getting up and saying 'Remember Bearden v. Georgia' is enough to get a 17-year-old out of custody," Glickman says.
In most counties these cases are scattered across the normal criminal docket, where public defenders and private attorneys don't know the case law as well as Glickman, and where defendants occasionally aren't advised of their right to counsel.
Glickman is usually the only defense attorney in Robeson's noncompliance court. She says that since she started, "We've gone from scores of people going to jail to almost zero…It's about being present and merely stating the law."