The Jagged Shore

Ever since Marbury v. Madison, 5 U.S. 137, 177 (1803), our federal and state courts have been charged with "the province and duty" of "say[ing] what the [constitutional] law is." But how seamless is the evolution of constitutional law? Is it a slow but steady accretion, like lava outwardly extending the island's edge? Or is it a process filled with more give and take, evoking Picasso's observation that "[e]very act of creation is first an act of destruction"?

If, as Oliver Wendell Holmes, Jr, said, "the life of the law" is "experience," the best place to look for an answer is to look at how the courts actually react to an eruption of new constitutional law. And one of the biggest jolts in the California courts this year has been People v. Duenas, 30 Cal. App. 5th 1157 (2019).

California law requires courts to impose a variety of assessments and fines when they sentence most criminal defendants. Duenas held that due process and, ostensibly, the protection against excessive fines, prohibit a trial court from imposing certain statutory assessments or the minimum restitution fine against a criminal defendant unless and until the court has first determined that the defendant has the "present ability to pay" those assessments or that fine. Duenas at 1168, 1171-72 & n.8. Indigent defendants are "blameless" for their financial predicament, Duenas reasoned, so it is both "fundamentally unfair" and "irrational" to impose assessments and fines on them. Id. at 1164, 1167-68.

In support of its holding, Duenas drew on several sources. It cited cases and statutes securing the right of indigent criminal defendants and indigent civil litigants to have access to the courts, with the former being entitled to a free copy of a transcript or record of the trial court proceedings for use on appeal and the latter being entitled to a waiver of court or reporter fees. Griffin v. Illinois, 351 U.S. 12 (1956); Jameson v. Desta, 5 Cal. 5th 594 (2018); Cal. Gov. Code Section 68630 et seq. These cases rest on the bedrock principle that "[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has." Griffin, at 19. Duenas also cited cases that bar indigent criminal defendants from being imprisoned for the failure to pay fines unless they have made no "bona fide effort" to earn the money to pay off those fines. Williams v. Ill., 399 U.S. 235 (1970); In re Antazo, 3 Cal. 3d 100 (1970); Bearden v. Georgia, 461 U.S. 660 (1983). Duenas finally quoted language from decisions arising in different contexts -- namely, one case holding that a parent can obtain a bankruptcy discharge for money owed to the state to pay for her son's juvenile detention, Rivera v. Orange Cnty Prob. Dep't (In re Rivera), 832 F.3d 1103 (9th Cir. 2016), and another case holding that courts must conduct an ability to pay hearing before imposing the costs of probation when the statute authorizing that imposition of such costs requires such a hearing, People v. Neal, 29 Cal. App. 5th 820 (2018).

Duenas goes beyond prior decisions. The prior case law required courts to provide access to indigent litigants or prohibited courts from imprisoning indigent criminal defendants for nonpayment of fines if they did not make a "bona fide effort" to pay off those fines. The prior case law did not prohibit "the imposition upon an indigent offender of a fine and penalty assessment." Antazo, at 116. By contrast, Duenas bars the initial imposition of assessments and minimum restitution fine absent a finding of a present ability to pay. Gone is any consideration of future earnings or earning potential; gone is the defendant's need to show bona fide effort; and gone is the need to wait and see if the defendant can pay off the assessment or fine during the period of probation or incarceration. Indeed, the same court that handed down Duenas later acknowledged that "no California court prior to Duenas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay." People v. Castellano, 33 Cal. App. 5th 485, 489 (2019).

So did Duenas peaceably add new real estate to the Island of Due Process, or has the ocean pounded back?

Thus far, Picasso seems to have the better position.

Some courts have refused to weigh in on Duenas' merits unless the defendant objected to the imposition of assessments or the minimum restitution fine on the ground of indigence. "Duenas herself" objected before Duenas was decided, so any defendant's failure to object amounts to a forfeiture. People v. Frandsen, 33 Cal. App. 5th 1126, 1154-55 (2019); People v. Bipialaka, 34 Cal. App. 5th 455, 464 (2019). Other courts disagree. People v. Jones, 36 Cal. App. 5th 1028, 1031-32 (2019); People v. Johnson, 35 Cal. App. 5th 134, 137-38 (2019); People v. Santos, 2019 DJDAR 7844 (Aug. 15, 2019); Castellano, at 489.

Other courts have looked Duenas in the proverbial eye, but gone on to limit Duenas to its "extreme facts." The defendant in Duenas was caught in a "debt trap": She had fines imposed against her as a teenager that precluded her from getting a driver's license; she drove anyway, and over many years repeatedly entered pleas to counts of driving on a suspended license; those pleas resulted in more assessments and fines; she had no ability to pay those assessments and fines, as she suffered from cerebral palsy, could not work, was homeless, and received public assistance; yet she continued to drive, incurring even more criminal liability for assessments and fines. Duenas, at 1161-62. Duenas may have been the right result for Duenas herself, these courts have reasoned, but extending Duenas' holding to others not in the same debt trap would be a case of bad facts making bad law. Johnson, at 138-40); People v. Kopp, 2019 DJDAR 7137 (July 31, 2019).

And still other courts have declared that Duenas got it wrong. A number of courts have said that Duenas was wrong to focus solely on a defendant's present ability to pay, and that courts should be able to look at the defendant's earning potential during the period of his incarceration or probation. Jones, at 1035; Johnson, at 138-40; Santos, at *16-*17. Indeed, the court that decided Duenas has also embraced that view. Castellano, at 490. Others have held that Duenas was wrong to require the court or the People to prove the defendant's ability to pay, and would instead require the defendant to prove his or her inability to pay. Kopp, at 76-77; Santos, at *16. And at least one court has ruled that Duenas was wrong to rely on due process rather than the excessive fines jurisprudence, where the defendant's inability to pay is just one of several factors to consider in assessing whether a particular assessment or fine is excessive (rather than being the sole and dispositive factor). Id.; see also United States v. Bajakajian, 524 U.S. 321, 337-38 (1998).

Precisely where the shoreline fashioned by Duenas will lie remains to be seen as this back and forth continues. And there may be yet another force at work -- namely, the California Legislature. Just 43 days after Duenas was decided, Assembly Bill 927 was introduced. It would erect a presumption of inability to pay when a defendant is homeless, "receives need-based public assistance," is "very low income," or "is sentenced to state prison for an indeterminate term or for a term of life without the possibility of parole." If enacted, it would pave over the constitutional shoreline with a road of the finest statute.

For now, however, the shore defining the boundary of indigent defendants' constitutional right to forestall or forego liability for certain assessments and fines is still forming. For now, that shore is a jagged one. 