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JANESVILLE

When a court case is ending, a judge often lists what a defendant needs to do and know.

It can include contacting a probation agent, not possessing a gun or avoiding the use of drugs or alcohol.

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One routine item usually on the list is paying court costs, which can total hundreds of dollars or more.

Failing to pay could land the defendant in jail.

Orders to jail for nonpayment are called arrest warrant commitments, authorizing “that a defendant be arrested and detained until a fine is paid or discharged by due course of law,” according to Rock County’s website.

“A lot of this happens outside of anybody’s view,” said Eric Nelson, a recently retired assistant public defender who worked in Rock County for nearly 40 years.

“Broadly speaking, it’s a debtor’s prison,” he said.

It’s coming to an end.

All seven Rock County circuit judges recently signed an order that should substantially cut the number of people put in jail because they can’t pay such fines.

The result should be fewer people incarcerated only because they’re poor.

The order signed Sept. 30 calls for 2,862 active arrest warrant commitments to be transferred to State Debt Collection, which has other avenues to collect debts that don’t involve putting people in jail.

So, instead of the county not collecting the money owed while at the same time incurring the costs of incarcerating someone, the new system will more easily collect fines and fees, officials said.

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Troy Knudson

“I’ve heard it said that the jail should house people that scare us and not people who are just in a position that they can’t pay their bills at this moment,” Sheriff Troy Knudson said.

How it works

Arrest warrant commitments usually work something like this: Someone gets a speeding ticket, or they’re ordered to pay court costs after pleading guilty to a felony and a few misdemeanors, or they are cited for disorderly conduct.

A judge gives that person a certain amount of time to pay what they owe. That person also can set up a payment plan with the Rock County Clerk of Courts Office if they don’t want to—or can’t—pay all at once.

Judges didn’t order jail every time someone didn’t pay. The court might also have sought other remedies, such as extensions on payments or ordering community service.

But if the person did not pay, they would then return to court for a hearing to decide if they were able to pay.

Or, that was supposed to happen. Nelson said this had not been going on for some time.

The court was first supposed to find someone had willfully disobeyed a court order before jailing them. Instead, Nelson said, judges were signing off on arrest warrant commitments and people were going to jail whether they had any ability to pay or not.

He floated this as the reason there are “probably many thousands of potential plaintiffs that could all decide to bring a class-action (lawsuit) at some point if they wanted to.”

Congress outlawed debtor’s prisons federally in 1833, and states chose to do the same, according to a report from the Marshall Project, a criminal justice news website.

But the practice, or at least one similar enough to it, did not end with this abolition. Nelson, who started in the 1980s, said he’s been aware of it going on for at least decades.

The U.S. Department of Justice Civil Rights Division under former President Barack Obama in March 2016 sent a letter to state and local courts about legal obligations in collecting fees and fines. It listed seven principles, including the need for an indigency hearing and the consideration of alternatives to incarceration for those unable to pay.

In August, Forbes reported on a federal court decision about judges in New Orleans having a conflict of interest in such practices that generated revenue for their courts.

The Sept. 30 order by Rock County judges does not guarantee the practice will end locally, however. Cities and towns in the county that have municipal courts (Rock County handles Janesville’s municipal court matters) are not necessarily bound by the circuit court’s order.

It was not immediately clear what municipalities might or might not continue the commitments.

The costs

Someone taken into custody on an arrest warrant commitment would sit in jail and knock $75 per day off what they owed. Officials said it used to be $50 per day.

Knudson said it costs about $65 per day to keep someone in the jail. That meant the county per day per person was losing about $140—the $65 cost of housing the person plus $75 in fines forgiven for each day incarcerated.

Knudson added, however, that sometimes someone would be sitting in the jail on a fresh, unrelated charge while simultaneously serving off previously owed debts.

Nonetheless, the old way of doing business was losing money.

“I think this is a matter of using the resources that we have in the best possible way for our community,” Knudson said. “Jail space is a finite item, and it’s expensive, and I think it’s best used for individuals that need to be incarcerated for the safety of our community.”

But it’s about way more than cost savings. Do people who could not pay their debts really need to be incarcerated? What harm was this causing?

Nelson said the previous practice was bad public policy because it incarcerated people for the wrong reasons—people can get fines for unpaid library books or leaving their trash bins out on the curb too long.

The old process took people away from jobs and school and other prosocial parts of their lives. Even short stays in jail are destructive. Research, he said, shows incarcerating low-risk people with high-risk ones is harmful.

Additionally, he said, jacking up court costs to “exorbitant” levels is “no way to fund public services.”

Faun Moses is the regional attorney manager for the Wisconsin State Public Defender’s Office covering Rock, Walworth, Green and Lafayette counties.

While defense attorneys don’t represent clients arrested for unpaid fines, she knows court costs can be a burden on top of rent, medical bills and other financial obligations.

“We’re very happy with this decision,” she said of the judge’s order.

Judge Karl Hanson said he couldn’t comment on the order, but speaking generally he said he and the other judges think it’s an important issue. Other judges were not immediately available to comment.

Although the jail is “creeping” toward capacity, Knudson said overcrowding at the jail did not drive the policy change. Still, he said, they should see fewer inmates over time after this.

He said the sheriff’s office and the judges were each looking at making this change, and he appreciates the order.

In the short-term, Capt. Jay Wood said, the policy change is making more work for the sheriff’s office but not having to make arrest warrant commitment arrests will eventually free up more time for deputies and correctional officers. And he said that time can go toward efforts that benefit the community.

“Do you think it actually make sense as a person to sit in jail for a traffic citation?” he asked.