The ACLU has discovered that in nine of Colorado’s sixteen largest cities, judges are routinely issuing “pay or serve” warrants. These warrants are issued in cases in which a person was fined as part of their sentence on a case and have failed to pay the fine. When the warrant is issued and the person is arrested, they have an option: pay the fine or serve jail time. Unfortunately, however, these “pay or serve” warrants do not take into consideration whether the person has the ability to pay. To further complicate matters, many offenses for which a persotn may be fined are not jailable offenses at the outset.
For example, in Westminster municipal court, Jared Thornburg, a young man who had lost his job, was driving his Jeep when he was cited for an improper turn and driving a defective vehicle, neither of which is punishable by a jail sentence. Thornburg was fined, but was unable to pay the fine. He was ultimately arrested on a “pay or serve” warrant and served 10 days of jail for a $306.25 fine.
Not all cities issue such “pay or serve” warrants. Denver courts have decided not to issue such warrants. In June 2012, Denver judges decided to stop issuing such warrants because of the cost associated with jailing people as well as taking into consideration the effectiveness of sending outstanding accounts to collections.
Interestingly, in other situations, in which an offense is actually punishable by jail or even prison, the law does generally require a showing that the person has the ability to pay before imposing a consequence for non-payment. For example, if a person is placed on probation for a misdemeanor or a felony, it is standard for courts to make payment of all fines and court costs a condition of probation. If that person fails to pay the fines and court costs and a complaint to revoke probation may be filed by the probation officer or prosecutor. The prosecutor must not only prove non-payment, but must also prove that the person had the ability to pay before the court may find that there has been a violation of probation.
Source: Denver Post, 12/15/2013, Christopher N. Osher