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Defending Against Incarceration for Non-Payment of Criminal Justice Debt

If you face incarceration for non-payment of criminal justice debt, seek legal counsel and press your constitutional rights. The government should not imprison you because you cannot afford to pay a debt. The U.S. Supreme Court has ruled that it is unconstitutional to imprison you for debt without a meaningful consideration of your ability to pay or the availability of alternative punishments.

Nevertheless, not all courts in practice consider your ability to pay and some do so only in a cursory or inadequate manner. This is where having a lawyer can help. You can ask the court to appoint a free attorney for you, or contact your local public defender office, legal services office, or bar association for help finding an attorney.

If you do not have an attorney, you should tell the court that you are unable to pay the court debt and should not be punished for that reason. Be prepared to explain why you cannot afford the debt, and to provide evidence of your inability to pay, such as proof of your income, receipt of public benefits, outstanding debts, and reasons you have been unable to work or to earn more, such as disability, incarceration, childcare obligations, or unsuccessful efforts to get a new job. Depending on the court, it may also help to describe or show proof of your necessary expenses for you and your family, such as costs for housing, utilities, transportation, food, insurance, medical expenses, childcare, and other necessary payments. Some judges unfairly and improperly insist that people can pay a debt if the judge thinks someone is spending money on other things the judge considers unnecessary, such as cigarettes, manicures, or tattoos. This is not a good basis for determining whether someone is able to pay, but try not to give the judge the opportunity to deny you relief for these reasons. Focus attention instead on how your income doesn’t allow you to pay the court debt and your necessary expenses.

The more information and details you document the better. Documenting your financial circumstances is not an assessment of character. In most cases, honestly conveying financial hardship should help you and should not result in more jail time due to your inability to pay. If you are uncomfortable sharing your financial information in open court, ask about options for privacy when sharing your information.