It might come as a surprise that the US Supreme Court has ruled that judges are obligated to inquire about the reasons the defendants are unable to pay court costs. That’s critically important considering that the federal courts have also ruled that defendants can’t be punished merely for being poor. Likewise, the North Carolina Constitution states, “There shall be no imprisonment for debt in this state.”

Judges have the discretion to waive court fines if defendants can’t afford them.

The quality and philosophy of judges that voters elect in local jurisdictions makes a huge difference. As the ACLU of North Carolina found in a report released earlier this month, court culture varies wildly from county to county: Judges in some counties waived less than 1 percent of fines and fees in 2017, while in Mecklenburg and Cumberland, the counties that respectively surround Charlotte and Fayetteville, they waived more than 20 percent of court costs. (Guilford and Forsyth counties did not respond to the ACLU’s request for data.)

The court system preys on the poor people, saddling those who can least afford it with fines and fees and sometimes throwing them in jail, to funnel almost $263 million annually to the state’s general fund, according to the report. In North Carolina and across the country one of our biggest products is human misery, sustaining an industry that provides livelihoods to countless police officers, prosecutors, defense attorneys, detention officers, probations officers and judges.

And while poor people of color are no more likely to offend than their white counterparts, it should surprise no one that North Carolina’s criminal-justice system inordinately falls on their backs. While blacks make up only 22 percent of the state’s population, they account for 47 percent of the state’s prison population. Blacks make up 32.8 percent of the population of Mecklenburg County, but the report’s authors observed that they accounted for 68 out of 100 people in the court system.

The report found a tale of two criminal-justice systems — worst and bad enough.

Starting with worst, Robeson — a county where racism and poverty intersect — the authors discovered that judges rarely appointed attorneys to represent indigent clients. With a 30.8 percent poverty rate and a population almost evenly split between African Americans, Native Americans and whites, the authors observed that 32 out of 110 defendants in Robeson County were jailed for failure to pay their court costs. In 84 of the cases, the ACLU found that the defendants’ ability to pay court costs was raised by neither the judge nor counsel, or the defendants themselves if they were appearing pro se.

During one session in August 2017, an ACLU observer witnessed Judge Herbert Richardson Sr. belittle Gregory Patterson, a 23-year-old Shaw University student who had been charged for speeding, operating a car without valid registration and inspection and driving with a revoked license while visiting family members.

“Why are you in my county, boy?” the judge reportedly asked.

Patterson, who is black, told the ACLU that he had worked all summer to earn money to pay his traffic fines. He came up with $200 — not enough to satisfy the judge.

After calling him a “disgrace” to his university and admonishing him to never return to Robeson County, Judge Richardson reportedly scoffed at his $200 by saying, “That’s not even enough to buy you a man in jail. And that’s where you’re going to end up. In jail. Boy, do you know what they will do to you in jail? They will have fun with you in jail.” Judge Richardson reportedly sentenced Patterson to $561 in fines and 30 days in jail, even though his charge was not eligible for jail time, and he had not pleaded guilty for his traffic charges or even received a hearing.

With the ACLU’s help, Patterson obtained pro bono counsel, and got the conviction overturned, with his fines and fees reduced to $258.

Judge Richardson retired at the end of 2018.

In contrast, the authors found that in Avery — a mountainous county on the Tennessee state line that is 90 percent white — “defendants were rarely locked up for failing to pay,” but ability to pay was rarely considered, and fines and fees were never waived in 100 cases reviewed.

One case stands outs. Brandon Sutton, 18, was convicted of possession of less than half an ounce of marijuana in July 2017, and placed on supervised probation.

The following May his grandfather gave Sutton, who is white, a ride to court in the county seat of Newland to face an allegation that he had violated his probation due in part to failure to pay his court debt.

“In court that day, his attorney did not tell Judge Theodore McEntire that Sutton had only an 8th grade education or that his family barely made ends meet,” the report recounts. “Judge McEntire did not inquire about Sutton’s ability to pay. After his court-appointed attorney submitted fees for his representation, Sutton owed more than $1,311.50 in court fines and fees, or almost twice the amount of his father’s monthly disability check.”

The report’s authors learned that the young man’s great grandmother tapped her kerosene fund and his grandmother took out a small loan to cover his court costs so he wouldn’t risk going to jail. The family didn’t know how they would come up with money to cover their heating bill the following winter.

Every time district court judges run for election, voters should ask them if they will prioritize keeping defendants financially solvent so they can take care of their families, or funneling more money to the state. And every defendant should insist on their constitutionally guaranteed right to an “ability to pay” hearing.

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