City settles with ACLU after jailing people too poor to pay court fines 

Too poor to pay

click to enlarge Shawn "Q-Tip" Hardman missed his victory lap. - J. ADRIAN STANLEY
  • J. Adrian Stanley
  • Shawn "Q-Tip" Hardman missed his victory lap.

Following a legal settlement with the city of Colorado Springs, Hardman walked away with $11,250, made national headlines and put local Colorado governments "on notice." But he wasn't able to make the press conference at which Mark Silverstein, the American Civil Liberties Union of Colorado legal director, trumpeted the victory and decried the unfair treatment that had led to it.

Now living in Grand Junction with family, Hardman was too busy recovering from losing both his feet to frostbite on the streets of Colorado Springs.

Hardman was one of four ACLU clients who brought a suit against the city, accusing the municipal court of sending them to jail for being unable to pay fines or for "nonjailable offenses." The city agreed to settle the claim, paying $103,000 in total, $52,159.18 of which will go to cover the ACLU's legal costs. Each of the ACLU's clients, along with 62 other people improperly jailed after Jan. 1, 2014, will be eligible to receive $125 for each day they served in jail solely for a "nonjailable offense" or failure to pay fines. The city will send out notices to the last known addresses of those affected, and also attempt to reach them through local service providers, the municipal court and Colorado Springs Police's Homeless Outreach Team. Those impacted have until Dec. 31, or two years from the date of incarceration, to claim their payout, whichever is later.

Like many others covered by the settlement, Hardman was homeless when he spent nearly three months in jail, after failing to pay fines for soliciting. Hardman's case was particularly egregious because he was sentenced for passively holding a sign asking for money, which is not illegal. He plans to use his settlement to continue to house himself and says he is gratified to know that others will be spared his hardship.

In a prepared statement, Hardman stated, "It's hard to live on the street, to get by without a home, a bathroom, or safety of your belongings. The City of Colorado Springs made living on the streets even harder when they kept ticketing me for just holding my sign asking for help, and then locking me up for almost three months when I didn't have money to pay those tickets. I was trapped in a cell that it seemed like I could never get out of."

Between January 2014 and October 2015, the ACLU claims that the Colorado Springs Municipal Court converted more than 800 fines to jail time when defendants were too poor to pay. Defendants were given one day in jail for every $50 owed.

"To the credit of the City Attorney's Office and Mayor [John] Suthers, the city pretty quickly agreed that this practice was not defensible," Silverstein says.

The Municipal Court ended its "pay or serve" practice at the end of 2015, after the ACLU began looking into the practice, the city confirms. In the first quarter of 2016, City Council voted to repeal or amend portions of the City Code that had allowed the practice. To avoid future problems, the city has announced that it will create mandatory training for all prosecutors, judges and contract defense attorneys.

"We were pleased with the process of working together with the ACLU to make our judicial processes better and to ensure we are in alignment with the law," Suthers stated in a city press release. "While we admittedly found some areas that required correction, I am pleased to report that our Municipal Court, City attorneys and Council members worked expeditiously to correct the situation upon learning of the non-compliance."

Silverstein says the practice of jailing people for unpaid fines violates the U.S. Constitution by creating a "two-tiered" system of justice, where those with means can pay a fine, while the poor must go to jail. It is illegal to jail people for being unable to pay debt in America — a practice often referred to as "debtors' prison" — but it wasn't always that way. Until the early 1800s, debtors' prisons were actually brick and mortar buildings dedicated to locking up people who didn't (and generally couldn't afford to) pay owed money.

Inmates stayed in the prisons until they died, somehow came up with the money to pay their debt, or worked off what they owed. Congress outlawed the prisons in 1833, and the practice of jailing the poor became rarer as states changed their laws as well, and as bankruptcy laws were put in place.

But the practice of sending people to prison for debt never really went away, despite the courts consistently finding it illegal.

In 1970 and 1971, the U.S. Supreme Court decided two cases, finding that maximum prison terms could not be lengthened for an inability to pay a fine, and that a person cannot be jailed because he or she is unable to pay a fine. Then, in its most-cited decision, the court found in 1983's Bearden v. Georgia that judges must distinguish between people who are unable to pay a fine, and those who "willfully" decline to do so. Those who simply refuse can be sent to jail. But judges differ about who can't pay and who simply won't — and that means poor people are still serving in "debtors' prison."

In Colorado, 2014's House Bill 1061 sought to end the practice by reiterating that people were not to be jailed for failure to pay fines unless they willfully refused to do so. But Silverstein says many municipal courts have sidestepped that law. The ACLU cites several examples of this in other cities, including Aurora, Wheat Ridge and Alamosa.

Now two bills have passed the Legislature that could further restrict the practice, should Gov. John Hickenlooper sign them into law. House Bill 1311 would strengthen the 2014 statute and get rid of loopholes that have allowed municipal courts to jail the poor. House Bill 1309 would require that municipal courts provide free counsel at the first court appearance to poor defendants who cannot afford to bond out of jail on a minor offense and who face a possible jail sentence. Silverstein says poor defendants will often plead guilty at a first appearance, even if they're innocent, because it allows them to get out of jail more quickly.

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