A district judge in Macomb County, Michigan, was ordered by a circuit court to stop putting defendants in jail because they couldn’t pay court fees and fines.

Now he’ll have to decide whether the payments constitute “a manifest hardship” for each person.

The court order was a victory for the Michigan chapter of the American Civil Liberties Union, which sued Eastpointe Judge Carl Gerds III over what it called an unconstitutional practice.

“We’re elated about the court’s order because it upholds a basic principle of fairness in our nation—that nobody should be jailed just because he or she is too poor to pay fines, fees and costs,” said ACLU of Michigan legal director Michael J. Steinberg in a statement.

In its complaint filed last July, the ACLU argued Gerds often incarcerated people without determining whether they had the ability to pay the fines in question in the first place. One woman who failed to license her dogs – a minor ordinance violation – and pleaded guilty to contempt was scared she would go to jail simply because she couldn’t afford the $455 charge in fines and fees that was levied on her, the complaint said.

“Defendants in Eastpointe no longer have to worry about landing in what amounts to illegal debtors’ prisons,” Steinberg said following the latest ruling.

The ACLU argued that these “pay or stay” sentences were already deemed unconstitutional by the US Supreme Court, but that judges in Michigan continue to employ them. The practice’s effect is to create a “two-tier system of justice,” the group said, in which the poor would go to jail for committing the same offenses that richer people did. The only difference was whether or not they could afford the fines.

Under the new court order, Gerds will be required to consider a defendant’s job status, earning ability, living expenses, and any special circumstances that may affect their ability to pay. As an alternative, defendants may agree to fulfill their obligations under payment plans agreed to with the court, or judges may have to craft different sentences such as community services.

Unless a defendant is found on the record to be able to pay, or that they are not making a good-faith effort to do so, the judge will not be able to incarcerate them.

For his part, Gerds has agreed to the terms and gave up the “pay or stay” practice last year.

“Since we filed the lawsuit, Judge Gerds has said that he has abandoned the prior practice and now does ability-to-pay determinations,” the ACLU’s Steinberg told the Associated Press. “We want to recognize that he has changed and we’d like to encourage other judges to follow in his footsteps.”

Meanwhile, the Michigan Supreme Court is currently considering rule changes supporting the end of pay-to-stay that are very similar to the ones Gerds must now follow.


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