For the Defense - Vol. 7, Issue 4 - 55

the full list of costs in any given case is at the end of the electronic
docket sheet.
These costs add up to an amount that is well beyond what most
Pennsylvanians can readily afford to pay. Data from the court
system shows that even after ten years, most defendants who were
represented by public defenders still owed costs.5
For example, 62%
of defendants represented by public defenders who were sentenced
in 2008 still owed costs by 2019.6
By contrast, most defendants who
had hired private counsel had entirely paid their costs within five
years. The data also shows that the smaller the amount of costs
imposed, the more likely it is that the person will pay it: most public
defender clients pay costs in full within five years when those costs
are less than $200.7
unpaid.
It is when the debt is unaffordable that it goes
Owing court costs can have a significant impact on defendants.
Statewide, driver's licenses are automatically suspended if a person
falls behind on payments in traffic cases;8
at sentencing, impacting property transfer;9
civil judgments are entered
access to public benefits
like food stamps and cash assistance can be cut off;10
and the
Department of Corrections garnishes inmate accounts to pay court
debt.11
Collections practices in individual counties vary, sometimes
dramatically. Courts in some counties, including the largest ones
in Pennsylvania, currently make little effort to collect court costs
and generally do not arrest or jail defendants for nonpayment.
In other counties, courts hold monthly contempt hearings where
dozens and sometimes even hundreds of defendants are brought
in for nonpayment, facing arrest and incarceration because of the
court costs. Some unlawful practices persist, such as judges illegally
keeping defendants on probation for failure to pay costs12
or
preventing individuals from having their driving licenses restored
following DUI treatment because all court debt has not been paid,
despite being on a payment plan.13
The judge's passing comment
at sentencing to pay " court costs " can balloon into years and even
decades of problems for low-income defendants.
The Supreme Court's ruling in Commonwealth v. Lopez
Against this backdrop, public defenders in a handful of counties
across the state began asking courts of common pleas to reduce
or waive costs for their clients who were unable to pay, with the
goal of preventing the unnecessary consequences imposed for nonpayment.
Ultimately, dozens of petitions for allowance of appeal
were pending with the Pennsylvania Supreme Court when it agreed
to hear Lopez.
Defense counsel argued that Pa.R.Crim.P. 706(C) requires that trial
courts consider defendants' financial resources at sentencing when
imposing costs. That provision provides:
The court, in determining the amount and method
of payment of a fine or costs shall, insofar as is just and
practicable, consider the burden upon the defendant by
reason of the defendant's financial means, including the
defendant's ability to make restitution or reparations.
In Lopez, attorneys Leonard Sosnov, Cheryl Brooks, and Alison
Lipsky of the Defender Association of Philadelphia asked the trial
court at a probation violation sentencing to waive the roughly
$1,700 in mandatory costs imposed on their indigent client. The trial
court declined to do so, reasoning that it was not required to do so
under Rule 706(C) or the related statutes. The Superior Court, sitting
en banc, agreed and explained that although these provisions vest
trial courts with " discretion to conduct such a hearing at sentencing "
to reduce or waive costs, the only obligation to do so arises when
a defendant " is in peril of going to prison for failing to pay the
costs imposed on him. " 16
The Superior Court's ruling thus set up a
distinction between what a court is permitted to do at sentencing
versus what a court must do when a defendant has defaulted on
payment.
The Supreme Court affirmed, holding that Rule 706(C) " does not
require a trial court to consider a defendant's ability to pay prior
to imposing mandatory court costs at sentencing. " 17
Importantly,
the Supreme Court also affirmed the Superior Court's ruling that
" its opinion should not be construed to strip the trial court of the
discretion to conduct an ability-to-pay hearing at sentencing " and
reduce costs if it so chooses.18
with discretion at sentencing: if the court wishes to consider the
defendant's ability to pay and reduce or waive costs, it can-but it
is also under no obligation, even if the defendant asks the court at
sentencing or files a post-sentencing motion seeking modification
of the costs.
The Supreme Court did acknowledge, however, that Rule 706(C)
imposes a mandatory duty on the court to consider the defendant's
ability to pay costs-just not at sentencing. The plain text of Rule
706(C) does not speak of discretion; instead, it specifies that a court
" shall " take certain action. The Lopez ruling explains that this
language imposes a " duty " to determine the " amount " of costs,
but it is only triggered " post-sentence upon the defendant's default
and a finding of his inability to pay. " 19
It is at that point that the
trial court must consider " post-sentence modification or waiver of
costs upon a proper showing of insufficient financial means. " 20
This
holding broke from the narrower Superior Court decision. While the
Superior Court read the Rule as requiring action by a trial court only
when a defendant faces incarceration, the Supreme Court instead
held that it applies when " there has been a default in the payment
of fines or costs. We do not hold that the threat of incarceration is
the triggering event " to apply the Rule or the statutes authorizing
reduction or waiver of costs.21
Thus, whenever a defendant defaults
on payment and the court finds the defendant unable to pay, the
court must consider whether to reduce or waive the outstanding
court costs.
Vol. 7, Issue 4 l For The Defense 55
The " amount and method of payment " language is used in
other Pennsylvania statutes that apply at sentencing when a court
determines the total amount a person must pay, such as the statute
that prohibits imposing discretionary fines without considering a
defendant's ability to pay.14
In addition, Rule 706(C) is also crossreferenced
by statutes that provide that costs are automatically
imposed at sentencing " unless the court determines otherwise
pursuant to Pa.R.Crim.P. No. 706(C) (relating to fines or costs). " 15
Lopez therefore leaves trial courts
For the Defense - Vol. 7, Issue 4

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