On June 11, state Auditor Timothy DeFoor chose to issue an audit report for the Washington County Clerk of Courts that accused the county’s community service program of “short-changing” the commonwealth of $513,178 in fines and costs between 2016 and 2019. Mr. DeFoor is incorrect on both the law and the facts.
There is no question – as the audit report admits – that a judge has the authority to permit a criminal defendant to use community service as an alternative sentence when that individual is unable to pay their fines and costs. Where Mr. DeFoor is wrong is in his insistence that a hearing is required. The statute cited by the report, 42 Pa. C.S. § 9730, plainly states that a judge may conduct a hearing to determine the defendant’s inability to pay. The audit report changes the word “may” to “must,” and, thereby, imports a meaning other than intended by the legislation. May is discretionary; must is mandatory.
In addition, the Pennsylvania appellate courts have held, as recently as this spring in Commonwealth v. Lopez, 248 A.3d 589 (Pa. Super. Ct. 2021), that a judge is only compelled to have a hearing if they intend to incarcerate the defendant for an inability to pay. Further, a local rule of criminal procedure in our county states that a hearing is not required in community service alternative sentencing cases, and that any work is done at the prevailing minimum wage. This rule was established over a decade ago, following a process that included statewide publication. Judges can have a hearing, provide for community service at the time of sentencing, or rely on sworn affidavits for in camera review. The court is following the law.
Community service is a successful program. When a defendant is sentenced, their punishment will often include fines, fees, and costs. A goal of the community service program is to ensure that those who cannot pay those commitments with money instead pay with their labor. Every year, hundreds of participants perform tens of thousands of hours of work in Washington County to pay back the communities affected by their crimes. This work, from cleaning up litter in streams and creeks, to readying ballfields every spring, and construction projects for local libraries and fire halls, save local governments and nonprofits countless amounts of money each year at well over 200 sites annually. The question should not be why participation is so high, but instead why others do not copy our programming.
Serious questions remain about the conduct of the audit itself. President Judge DiSalle received an invitation to discuss the draft audit a mere 24 hours in advance of the exit interview. The auditor general and the clerk of courts refused to share a copy of the audit prior to the exit interview. No one was formally notified of the press conference in advance. Mr. DeFoor said in his press conference that neither he, nor his staff, discussed the audit with the court or county commissioners. To date, no one has definitively shared the list of cases relied upon in the audit – if the report so widely misses the mark in interpreting the law, how can it be expected to fairly represent the case files? The audit commits the statistical fallacy of assuming that its 25 handpicked cases are exactly replicated across every community service case from 2016 to 2019. That is just not the case. It took me less than one hour to find several examples of cases where alternative sentences were ordered at sentencing, after petitioning for relief, or in response to a contempt proceeding for failure to pay.
Sadly, one must conclude that this is an instance of headline grabbing. Certain elected officials have seized on the audit report and made outlandish and/or partisan statements about the court and its judges, as well as other county officials on this topic. Such unfounded attacks only serve to denigrate the rule of law. The court is a nonpartisan institution, and remains focused on its mission to provide fair and impartial access to justice.
Patrick R. Grimm, Esq., is the Court Administrator for Washington County.