Of Debtors’ Prison and Appellate Procedure
Today is opinion day for the Supreme Court of Virginia, and while I typically will read the opinions from the east side of Ninth Street, I leave the commentary to the sage of Virginia Beach, Steve Emmert. However, as he concluded his analysis of the Court’s sole published opinion with a invitation for me to weigh in, and as I was logging on to correct a typo in the analysis of the CAV opinions from this week anyway, I thought I would take a moment to comment on Smallwood v. Commonwealth, which Steve correctly notes addresses a timely topic — the de facto existence of contemporary debtors’ prisons in the US when an indigent defendant is subject to imprisonment for failure to pay fines and/or court costs. Legislative action has helped eliminate the more egregious of these instances, but there are still time when a defendant may find himself in the dock being asked to justify the existence on an outstanding monetary debt to society.
I will not repeat the full summary of facts that led to Smallwood being called to account for his inability to satisfy a debt, as the summary and analysis on Steve’s website is more than adequate. Suffice to say that Mr. Smallwood was charge with a felony for possessing a small amount of heroin, was found to be indigent and through the good graces of his court-appointed attorney was placed on first-offender status. Despite a one-year extension, and apparently having otherwise complied with the court’s order, Smallwood failed to pay the court costs of $1,300 as required under the diversion program. Finding that this constituted a violation of the court’s order, Smallwood was convicted and sentenced to two years’ imprisonment with all time suspended.
Now, some at this point may observe that because all time was suspended, Smallwood was not actual consigned to a “debtors’ prison.” Fair enough, but it is also true that the conviction will carry with it certain other penalties such as the loss of his right to vote, to carry a firearm, and to obtain employment in certain fields (as well as a significant obstacle to finding employment generally). The point is that, regardless of whether Smallwood is being confined or not, the resulting punishment stemmed from his alleged inability to pay a debt, albeit one to the government through a court order.
The Court of Appeals affirmed on general deference to the discretion of the trial court. The Supreme Court, however, approaches its review from a different vector. Smallwood relied on Bearden v. Georgia, 461 U.S. 660 (1983), for the principle that he could not be punished from non-payment of fines and court costs if he were indigent. The Commonwealth responded that Bearden was inapplicable because Smallwood failed to “assert” his indigency as part of the original plea.
The Supreme Court avoids this argument by “assuming without deciding” that Beardon is applicable. Now I am going to take issue with the Court’s punting on this issue because it implies that there might be merit in the Commonwealth’s position, and I simply can’t see any. Bearden specifically applies to revocation proceedings and the reason is obvious. No trial court would ever say during sentencing, “Well, the defendant is indigent so he obviously won’t be able to pay a fine so I will instead sentence him to serve time.” Neither would there be any reason for the defendant, upon being subject to a fine and/or court costs to assert, “But judge, I will never be able to pay that!” Anyone familiar with the process in General District Court knows that the issue is not whether the defendant can pay, but how much he can pay on a periodic basis. In short, I cannot imagine any circumstance in which it would be likely that a defendant would assert his indigency as an absolute bar to the court imposing a sentence, whether by agreement or following conviction.
Bearden plainly applies to the circumstances of any case where the court is revisiting the issue of whether to impose time on the defendant after his failure to pay some obligation ordered by the court. It is easy to imagine any number of circumstances, unforeseen at the time of the original proceeding, which resulted in the once solvent defendant no longer have two sous to rub together.
In any case, the Court applied the Bearden analysis, and was still able to conclude that Smallwood was not be subjected to a “debtor’s punishment.” The Court reasons that Bearden only requires the court to “inquire” as to the defendant’s financial status, there is no burden on the Commonwealth to prove his solvency. Here, the court inquired and Bearden provided a summary of his financial resources and obligations, which showed that he was hardly living the life of Riley. However, Smallwood never gave any express reason why he had been unable to make some effort to pay the costs, stating on that “I just haven’t had the money yet.” In the absent of any evidence showing that Smallwood made a bona fide effort to meet his obligation under the plea agreement, the court was not required to accept his asserting that he was unable to do so.
Smallwood raised two additional arguments — that imposition of court costs was not a proper requirement of a deferred disposition under Code § 18.2-251 or that, even if it were proper, the remedy was to find him in contempt, not to convict him of the underlying offense. Had the Supreme Court granted relief on either of these issues, the indigency argument would have been irrelevant. The Court, however, finds that the statute is unambiguous and provides both for the imposition of court costs as a requirement of the deferred disposition and that revocation of deferred status is clearly available to the court as a remedy for the failure of the defendant to comply with all the terms of the deferral.