Mickelson v. County of Ramsey: Booking fees and due process

On a note somewhat related to Nelson v. Colorado comes Mickelson v. County of Ramsey, a case challenging the constitutionality of Ramsey County, Minnesota’s policy of charging arrestees a $25 fee upon booking them into jail. In an installment of his Sidebar column earlier this week, the Times’ Adam Liptak tied the case, which is pending petition before the Supreme Court, to a “national trend to extract fees and fines from people who find themselves enmeshed in the criminal justice system.” In the wake of “The Great Recession,” some states and municipalities began charging inmates for their jail and prison stays to offset budget deficits.

Against the backdrop of “pay to stay” practices, petitioners Erik Mickelson and Corey Statham, formerly detained at a Ramsey County jail, sued the county for confiscating their pocket money upon booking. The county returned their money, less the $25 booking fee, in the form of a debit card. This is all kosher under Minnesota state law. What about per the Constitution? Before the state deprives you of life, liberty, or property, due process is owed. The petitioners claim that they didn’t receive adequate process (i.e., a hearing adjudicating guilt) before the county deprived them of property.

The Eighth Circuit disagreed (823 F.3d 918). A unanimous panel held that while the booking fee scheme implicated a property interest ($25 is a significant amount of cash for some), by balancing the competing private and public interests at stake, as well as the risk of wrongly depriving an innocent person of property, the court determined that the process given by the county was no less than the process due the arrestees. In so holding, the judges generally gave their approval to controversial “pay to stay” policies:

[W]e agree with the [Sixth Circuit’s] conclusion that the county’s interest in collecting the fees at booking is substantial. Collecting the fee from those required to pay under the statute allows the county to manage the costs of serving and policing the community and “further[s] offender accountability. “ Courts routinely recognize this interest when approving the collection of jail-related fees. In Slade [v. Hampton Roads Reg’l Jail, 407 F.3d 243, 253 (4th Cir. 2005)], for example, the Fourth Circuit upheld a jail’s practice of automatically charging pretrial detainees one dollar per day in part because the jail had a “legitimate interest to defray the costs of a prisoner’s keep and a legitimate interest in the collection of the fee.” The Fifth Circuit recognized a similar interest in Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003). There, the court upheld against a due process challenge a Louisiana statutory scheme that required inmates to pay a fee as a prerequisite to release on bail because the policy furthered “the government’s interest in conserving scarce resources” and in “maintaining cost-effective procedures.”

The way that petitioners have framed the question to the Supreme Court—“Whether due process allows governments to confiscate money from innocent people on the basis of an arrest and then force those people to prove they are entitled to have their money returned”—suggests a focus on the risk of an erroneous deprivation. To ensure that it does not levy the fee against persons jailed undeservedly, the county refunds the booking fee in three circumstances: (1) if the arrestee isn’t charged with a crime, (2) if charges are dismissed, or (3) if the arrestee is acquitted of all charges at trial. (Of the petitioners, Mickelson pleaded guilty, while charges against Statham were dismissed. Thus, only Statham qualified for a refund.) To facilitate the refund process, the sheriff’s department must give inmates a “Booking Fee Refund Form” upon their release. Once there is a dismissal, acquittal, or a formal decision not to pursue charges, the arrestee may submit the form and the county is then required to mail the refund within 30 days of receiving the form. This post-deprivation process, the court found, protects inmates who are innocent. So does the pre-deprivation requirement that the Fourth Amendment requires probable cause for an arrest.

In Markadonatos v. Village of Woodbridge, 760 F.3d 545 (7th Cir. 2014), the en banc Seventh Circuit took up a constitutional challenge to another booking fee, but managed to avoid the constitutional issue. Judge Frank Easterbrook argued in a concurrence that the due process clause permitted the collection of a jail booking fee so long as probable cause justified the arrest:

Probable cause justifies substantial burdens. Someone arrested on probable cause can be taken to the stationhouse, booked, and held pending bail, even if the offense is punishable only by a fine. A person taken into custody can be held as long as 48 hours before seeing a magistrate. Probable cause, reflected in a grand jury’s indictment, justifies holding a defendant in custody pending trial. Probable cause also can justify the seizure of the suspect’s assets pending forfeiture, a step that may make it impossible for the suspect to hire his preferred lawyer and might lead to a conviction, when a better defense could have produced an acquittal.

All of these losses vastly exceed a $30 fee. If probable cause justifies months in jail and an inferior lawyer, what sense could it make to say that a $30 fee is constitutionally excessive? True, someone arrested on probable cause does not get the $30 back if he prevails at trial—but neither does he get back the value of time spent in jail or the value of the difference between a top-notch lawyer and the average quality provided under the Criminal Justice Act. It won’t suffice to say, as [the] dissent does, that probable cause isn’t enough to justify permanent deprivations of property. It does justify deprivations of liberty; why is property more sacrosanct?

The Eighth Circuit did not say whether probable cause for an arrest in itself was sufficient process, but pointed out a critical difference between the respective policies of Ramsey County the Village of Woodbridge:

[The Village of Woodbridge] provided no post-deprivation remedy through which arrestees could receive a refund. Instead, “[t]he deprivations occurred at the time of arrest, immediately and finally,” and the system “allowed no room for dispute or review of any kind.” The policy thus imposed a permanent deprivation based solely “on the unreviewable decision of one police officer.” Significantly, the appellant in Markadonatos suggested that the city’s collection policy would pass constitutional muster if the city afforded a post-deprivation procedure “by which those who are wrongfully arrested, never charged, or are found not guilty may obtain a refund.” Such a system is present in the case before us.

If the Court does accept Mickelson it could use the opportunity to clarify for municipalities exactly what safeguards they must put in place if they want their fee scheme to comply with the Constitution: Is the requirement that an arrest must be supported by probable cause constitutionally adequate process to deprive the arrestee of $25 upon booking? Is some post-deprivation process, such as the refund form that Ramsey County employs, also required? Or, does Ramsey County’s policy not go far enough, and must the pre-deprivation process amount to a finding of guilty in court?

For some court watchers, though, Mickelson is part of the broader controversy over “pay to stay” policies. Liptak writes in his Sidebar that the opposition to such policies consists of an “unusual coalition of civil rights organizations, criminal defense lawyers and conservative and libertarian groups.” Billing people for the time they spend incarcerated seems shortsighted to me. “Pay to stay” might pull the criminal justice system through some tight budget years, but it also risks sucking poor people into a cycle of debt that will translate to a future strain on public resources. Nonetheless, I haven’t read anything to convince me of their illegitimacy. The criminal justice system is a public good, and while the public is expected to finance common goods through taxes, it’s accepted that those who use certain public goods also make direct contributions.

Nelson v. Colorado: The due process right to a refund?

You do something you would never do: You have too much to drink and get behind the wheel. Next thing you know you’re arrested on suspicion of DUI. Because if you are convicted you will lose your job, you reject the prosecutor’s plea offer and demand a jury trial. The jury convicts you. It’s your first DUI, so you’re sentenced to probation with some alcohol classes and community service, no jail. And you have a sizeable tab. Not to mention your lawyer’s fees and the cost of the classes, in Colorado you’d owe the following: (1) 21.00 in court costs, (2) a 5.00 court security fee, (3) a 5.00 E-discovery fee, (4) a 2.50 genetic testing surcharge, (4) 20.00 for the Brain Injury Fund, (5) 33.00 for the Victim Compensation Fund, (6) 90.00 for the Law Enforcement Assistance Fund, (6) a 100.00 persistent drunk driving surcharge, (7) a 300.00 fine, (8) 222.00 for the Victim Assistance Fund, and finally (9) a 5.00 rural youth alcohol abuse surcharge. Having learned that Uber is much cheaper than a DUI, you quickly pay your dues.

Then a surprise: You win your appeal and are awarded a new trial. But because a key witness is now unavailable to testify for the state, the DA is unable to prosecute and the judge dismisses the case. No more probation, no more classes, no more conscripted volunteerism. You would also like a refund of all the fines, surcharges, and other fees you shelled out to the state coffers. But on that count, you’re out of luck, at least in Colorado.

When the Supreme Court resumes its docket in January, it will hear oral arguments in Nelson v. Colorado, which asks whether the Constitution’s due process clause requires Colorado to refund amounts paid pursuant to a criminal conviction that is later invalidated.

The Petitioners, two individuals whose felony convictions were overturned on appeal, and who were denied refunds, say it does. Their primary argument is that Colorado law, by denying such refunds, contravenes the presumption of innocence, which the Court has found an essential component of due process in criminal proceedings.

To understand the Petitioners’ argument, it is necessary to understand the basics of Colorado’s Exoneration Act. Responding to high-profile exonerations of convicted murderers, Colorado and other states passed laws that compensate innocent persons for the time they spent behind bars. (For a good story on the subject of compensating exonerees, see the New Yorker Annals of Justice piece “The Price of a Life”). To recover under the Exoneration Act, a defendant must file a civil action and prove, by clear and convincing evidence, that he is “actually innocent” of the crime. The Act was not intended to compensate defendants like the Petitioners, whose convictions were overturned because of a procedural or legal error, without evidence of a colorable claim of innocence. If a defendant can prove his innocence, he receives $70,000 for each year he was incarcerated (an additional $50,000 for each year incarcerated under a death sentence), and $25,000 for each year served on parole, probation, or as a registered sex offender after a period of incarceration. Important to this case, the exoneree also receives a refund of all monetary penalties.

The Petitioners argue that the Exoneration Act, at least with respect to its provisions governing refunds of monetary penalties, unconstitutionally flips the presumption of innocence. The argument’s appeal (I was sold for a few minutes) is superficial. The Exoneration Act only allows convicted felons who have served all or part of a sentence of incarceration to prove their innocence and receive a refund. Persons convicted of misdemeanors and of felonies where the sentence is something other than prison (e.g., probation)—in other words, a significant majority of people who pass through the criminal justice system—don’t have recourse to the Exoneration Act. Because the Exoneration Act doesn’t apply to this class of defendants, even armed with proof of their actual innocence they’re out of luck when it comes to getting their money back. If most defendants don’t have the ability under Colorado law to receive a refund by proving their innocence, then Colorado law doesn’t flip the presumption of innocence. There is simply no remedy for the perceived wrong (in legalese we say you’re “SOL”). Respondents compellingly argue that any such remedy would have to sound in substantive due process, and the Supreme Court’s jurisprudence on substantive due process just about closes the door on any claim that defendants have a substantive due process right to a refund.

Furthermore, it’s not clear why the presumption of innocence applies here. Black’s Law Dictionary defines the “presumption of innocence” as the “fundamental principle that a person may not be convicted of a crime unless the government proves guilt beyond a reasonable doubt, without any burden placed on the accused to prove innocence.” Courts have only recognized the presumption’s pride of place in criminal proceedings. No one is suggesting that Petitioners were tried and convicted without the benefit of the presumption of innocence. (If they had been, it would be an outrage that no one would be willing to defend.) Petitioners’ brief fails to justify why the presumption of innocence should also govern in a civil proceeding.

If the Respondents prevail before the Supremes, it may be because the implications of the Petitioners’ position are arguably far-reaching. A key sentence of the Respondent’s brief states that “Petitioners do not explain why the Constitution grants them compensation only for monetary payments they made pursuant to their convictions, while ignoring their loss of liberty during their time of incarceration.” Expect this question to be put to the Petitioners at oral argument: If the Court accepts that due process requires compensation for monetary payments, why doesn’t it also require compensation for the loss of liberty?

I have no doubt that Colorado should provide refunds of monetary penalties (with the exception of restitution) when a defendant’s conviction is overturned. Colorado’s law certainly feels unfair. But whether the Constitution requires Colorado to do so is an altogether different question, and not one the Petitioners’ brief answers satisfactorily.