Judges advised on 'ability to pay' inquiries

The American Bar Association Standing Committee on Ethics and Professional Responsibility recently released guidance addressing the obligations of judges under the ABA Model Code of Judicial Conduct (MCJC) to conduct a constitutionally required inquiry into a litigant’s ability to pay court fines, fees or other financial obligations prior to incarceration for nonpayment.

Formal Opinion 490 explains that under longstanding U.S. Supreme Court precedent, “a defendant cannot be incarcerated for failure to pay absent an opportunity to be heard on the question whether the failure to pay is ‘willful,’” and whether, in view of the defendant’s indigence, “there are alternatives to incarceration that would meet the state’s interests.”

Since the court’s decision in Bearden v. Georgia in 1983, many states have incorporated the duty to inquire into a litigant’s ability to pay into state law as well.

The opinion addresses circumstances in which the MCJC would be violated by a judge’s failure to conduct these legally required ability-to-pay inquiries.

The opinion emphasizes that throughout the country, trial court judges on all levels of government administer “justice day in and day out with the utmost integrity, fairness and dedication.”

However, it said that in some jurisdictions “the high standard consistently set by so many judges has not been met” regarding ability-to-pay inquiries.

The opinion examines disciplinary cases as well as ethical standards relating to a judge’s duty to comply with law, to protect the fairness and impartiality of legal proceedings, and to coordinate with other judges and court officials in the administration of court business to maintain “carefully prescribed procedures to prevent incarceration where a litigant lacks the resources to pay legal financial obligations or private civil debts.”

The opinion also cites guidance from the National Center for State Courts and the Conference of State Court Administrators, in addition to other sources.
At the same time, it describes best practices for conducting ability-to-pay hearings.

Compliance with Bearden and state analogues is fundamental, the opinion observes, not only to a litigant’s right to liberty under the due process clause, but also to public confidence in “integrity, fairness and impartiality of the judicial process.”

With appropriate procedures in place, courts can efficiently conduct ability-to-pay inquiries and protect “legitimate state interests in public safety” while avoiding the costs — both to personal liberty and public funds — of unnecessary incarceration, the opinion said.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.