Jailing individuals simply because they can’t afford to pay a fine — commonly called pay or stay sentencing — is unconstitutional. Yet judges throughout Michigan have handed out disturbing numbers of these sentences for many years, with several recent cases becoming high profile.

Now the Michigan Supreme Court is considering adopting a court rule that would clearly state that Michigan judges must first determine a person’s ability to pay before issuing a jail sentence. While the rule shouldn’t be necessary, given that Michigan law reflects rulings by both the U.S. Supreme Court and the Michigan Supreme Court that such sentences violate the Constitution, the court should adopt the rule to remove any ambiguity.

“It’s a statewide problem,” said Bob Gillett, who serves as executive director of Legal Services of South Central Michigan, and as co-chair for the Michigan State Planning Body, which has helped draft language for the rule.

Under pay-or-stay sentencing, local courts jail individuals as a means of payment if they can’t afford fines associated with tickets, arrests, court costs and parole charges. The amount of owed fines obviously varies, but can be as little a couple of hundred dollars.

Once a defendant lands in jail, additional fees are tacked on to the debt. The irony, of course, is that putting a person in jail further impedes his or her ability to pay back fines or new court costs, creating a cycle that’s virtually impossible to escape from.

The planning body worked with the State Court Administrative Office for several years to issue a report on the severity of the problem in Michigan.

According to the report, the rule seeks to emphasize that courts are prohibited from issuing a pay or stay sentence before a defendant’s ability to pay has been determined. The rule would also establish a standard to be applied to every defendant in the court’s ability to pay determination, and require courts to consider payment plans and alternatives in cases where the court finds a defendant is unable to pay.

“The proposed amendments draw from, and are fully consistent with, existing Michigan law,” the report adds.

In addition to administering fundamentally unequal justice to individuals without means, pay or stay sentencing simply adds to the cost of corrections in Michigan, which are already ballooning.

While many courts — particularly more rural courts — see pay or stay sentencing as critical revenue for their local operating budgets, the costs to issue a warrant, track down an individual and host him or her for any number of days far exceeds the amount lost by not collecting the fine.

It costs about $90 per day to house an inmate in Michigan.

“I think the court rule is more permanent and more guidance for everybody,” Gillett said.

The court has opened an administrative file on the rule.

Next steps include the court deciding to publish a proposed rule, taking public comments on it, and then deciding whether to adopt it or revise and adopt it.

Gillett said they’re looking at progress made by early next year.

Pay or stay sentencing in Michigan needs to go. Adopting this court rule would emphasize the need for equal treatment under the law for all defendants, regardless of their financial situation.

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