(Posted January 13, 2022) The Supreme Court of Virginia today steps into a controversial fray with a dispassionate analysis of statutory and contract principles. The case is Smallwood v. Commonwealth, and involves the question whether a criminal defendant can be convicted of an underlying crime for failure to pay court costs.

The underlying crime here is heroin possession. Smallwood obtained court-appointed counsel due to his indigency, and from the looks of it, that lawyer did a good job. The circuit court approved a plea agreement that called for Smallwood to meet several conditions, and if he complied, the court would dismiss the charges under the first-offender statute at the end of a year. One of the conditions was the payment of court costs.

Smallwood obtained a one-year extension of the deadline, but when he appeared in court on the new date, he still hadn’t paid the costs, which topped $1,300. That, you will appreciate, is a lot of money for someone who’s indigent. He told the court, “I just haven’t had any money yet.” The judge knew about Smallwood’s limited income and his monthly expenses, but found that he hadn’t complied with the agreed terms. The court accordingly convicted him and imposed a suspended two-year prison term.

On appeal, Smallwood was unable to convince the Court of Appeals to intervene. The justices granted a writ, but today they, too, find nothing wrong with the conviction. Citing a 1983 SCOTUS ruling, the SCV today observes that in revocation proceedings, courts must “inquire into the reasons for the failure to pay.” If the defendant is doing everything that he can – in the words of the opinion, making “sufficient bona fide efforts to acquire the resources” to pay the costs – then the court has to look into alternatives to incarceration.

The reason for this is that we don’t want to incarcerate people for debt. The legislature has wrestled recently with a parallel problem, the suspension of drivers’ licenses for failure to pay fines. A system that allows the state to impose some type of adverse consequence upon someone who can’t pay, is punishing poverty, threatening to create a bifurcated system of justice, divided between rich and poor.

In a unanimous opinion written by Justice Powell, the Supreme Court rules today that the circuit court did inquire into the reasons for Smallwood’s failure to pay. It holds that in an inquiry like this, the defendant bears the burden to establish those bona fide efforts. Finding that Smallwood “did not present any evidence in support of his claims” of continuing indigency, the Supreme Court affirms the conviction. This, the court writes, “supports a finding that he willfully refused or failed to make sufficient bona fide efforts to pay his court costs.”

If that seems harsh, I invite you to consider the context. Today’s ruling may not reflect what the justices would do if they were drafting the Code. They may, individually and collectively, feel that this setup comes too close to debtor’s prison for their taste. But remember, they aren’t writing the statutes; they’re interpreting the Code (and, to be fair, applying that SCOTUS precedent).

I don’t practice in the criminal-law field, so others may have a more informed view on this. I plan to ask my appellate pal John Koehler for his thoughts on it, and I hope he’ll post those so you can read them, too. But I’m aware that there is at present a move away from adverse legal consequences for failure to pay fines and costs. This ruling might add fuel to that fire. Update January 17: John has now posted some insightful commentary on the case; you can read his analysis here.