Pa., N.J. suspend tens of thousands of driver’s licenses a year for not paying court costs. Is that constitutional?

Driver's licenses of hundreds of thousands of Pennsylvania and New Jersey drivers have been suspended in the last several years for failure to pay court costs related to low-level offenses. Now, advocates and some public officials are trying to put the brakes on a practice that they say unfairly punishes the poor.

A federal court in Tennessee earlier this month declared a similar system unconstitutional; a bill that would modify the Pennsylvania law is pending in the state legislature, and advocates are eyeing other remedies.

Typically, the suspension process begins with a citation — perhaps a parking ticket, or a moving violation. The alleged offender fails to show up in court or pay the costs, and the court tacks on more penalties. Ultimately, the license is suspended. The driver at that point has three options: Cough up the money (usually well more than the cost of the original citation), stop driving altogether, or drive illegally.

"It gets out of control," said John R. Bailey, a magisterial district judge in Exton, Chester County. Bailey is one of a number of local judges in Pennsylvania who are increasingly alarmed by what they consider a system that criminalizes poverty. "I see people can't pay fines, it makes me wonder: Can they afford to feed themselves?" Bailey said.

"You're gonna pay a fine but you can't afford to feed your family? In other words, where's that priority with the money going to go? So that's what happens."

State Sen. Stewart J. Greenleaf, a Republican representing parts of Bucks and Montgomery Counties, described it as "a debtors' prison type of a thing."

"And we outlawed that, because if people don't have the ability to pay, other options should be available," said Greenleaf, the primary sponsor of a bill that would require judges to consider ability to pay when levying penalties. "It's been growing significantly not only in Pa., but in the rest of the nation that people are being put in jail, and it's a waste of money."

From 2011 to 2017, Pennsylvania ordered 755,926 suspensions, ranging from 78,745 in 2011 to 123,737 in 2017. That includes suspensions for both failure to respond and to pay.

Advocates have found allies in judges such as Bailey, lawmakers, and lawyers.

A major issue is the lack of discretion that locks in penalties akin to minimum mandatory sentences. In many states, penalties are set by state law. In others, particularly New Jersey, advocates said, judges are given more leeway but often do not exercise that discretion.

Whether lacking power or choosing not to wield it, the result is the same: Hundreds of thousands of Pennsylvania and New Jersey drivers who do not pay court costs — in many cases, who cannot pay those costs — are slapped with additional penalties and end up losing their licenses.

The system is reparable, said Andrew Christy, a lawyer at the ACLU of Pennsylvania, with options including amending the law, changing court procedural rules, and suing to overturn the law.

Greenleaf's bill, backed by four Republicans and five Democrats, would let judges order community service and allow for waiving penalties altogether for low-income drivers if a judge determined that they never would be able to pay the court costs.

In April, the bill passed the Senate Judiciary Committee, which Greenleaf chairs. No vote was taken on the Senate floor, but Greenleaf said he has been assured it would come up for a vote when the Senate returns from its summer break. (Senate President Pro Tempore Joe Scarnati, a Republican from Jefferson County, voted for the bill in committee.)

State Sen. Vincent Hughes, a Philadelphia Democrat who is one of the bill's sponsors, said he and other advocates were not calling for abolishing penalties altogether.

"This does not get a person out of their conviction. This does not get the person out of the responsibility to pay," Hughes said. "This is just responsive to the economic reality that a person is in."

Bailey, the Chester County judge, said: "Each case is individual that comes in front of me. That's what the judge is, we're neutral and detached: Why did this happen? We can't just say, 'Ah, OK, a citation, they've got to be guilty.' Who would ever rule like that? You're in the wrong profession."

License suspensions were identified as a primary concern in a New Jersey Supreme Court report that recommended the municipal courts dismiss hundreds of thousands of low-level offenses, including traffic citations. Fines and assorted court costs have become revenue streams for some towns, the court found.

In the Garden State, a driver must pay $100 to restore a suspended license. (In Pennsylvania, the fee to restore a suspended license is $70.) The fine for driving with a suspended license is $750. The court committee that compiled the report, released last month, cited a number of examples.

In one, a driver named Dan receives a $130 ticket for not having his car inspected. He failed to contact the court and pay by the deadline, so a $10 late fee is added. The court eventually orders the license suspended. To drive legally, he will have to pay the original ticket, the late fee, and the $100 restoration fee. The total cost: $240.

"The committee was deeply concerned about what can be a never-ending imposition of mandatory financial obligations that have little to do with the fair administration of justice," Assignment Judge Julio Mendez, who chaired the committee, said in a statement.

Christy, the ACLU lawyer, said that although he hoped lawmakers and/or the state Supreme Court would act to change the system, litigation remained a possibility. In Tennessee, a federal judge this month overturned that state's law regarding suspending licenses, saying it violates the U.S. Constitution's due process and equal protection guarantees.

With 43 states and Washington, D.C., having laws suspending licenses for not paying court costs, experts say, the Tennessee ruling could open the door for challenges to other states' laws.

"The best way for this to get fixed is for the legislature and the Supreme Court to fix it, but there are always other options, if necessary," said Christy, who called the Tennessee law "eerily similar" to Pennsylvania's system. "It provides a road map to explaining what is wrong with these laws and how they need to be fixed."