Kly, Oli et. al: Here is an interesting development in my home county: defense lawyers are challenging the constitutionality of automatic fines and surcharges levied on defendants who accept plea bargains:

For about six months, every plea agreement offered by the Yavapai County Attorney Office has included a mandatory minimum fine of $750 plus an unwaivable 83 percent surcharge, no matter the crime involved.

That, attorney John Napper argued Wednesday, violates the U.S. and the Arizona constitutions.

He represented six defendants, all of whom had different attorneys for their original cases, but are fighting to have the mandatory fine stricken from their - and future offers - made by the county attorney.

Angela Napper pointed out in the firm's court filing that "the stated policy reason behind the fine is having the defendant pay for the cost of his/her prosecution instead of the taxpayer," but that the fee is the same in every case and no one gets to see an itemized list of the costs incurred.

The "overwhelming majority" of defendants in Yavapai County courts are indigent, she wrote, and 90 percent of criminal cases are resolved by plea agreement, not trial.

"The burden of a blanket fine imposed without regard to the fact and circumstances of the offense or defendant falls predominantly upon the poor," she wrote, adding that more affluent people will simply pay the fine without much consideration.

She asserted that the policy usurps the power of the Legislature to set fines and fees.

And, she added, the inclusion of the fine has been confusing, as various courts have rejected the plea with a fine, or accepted it, or deferred acceptance of the plea agreement until the court can determine if the fine is appropriate.

That last decision keeps defendants who could otherwise be out of custody behind bars while the judge tries to establish whether the fine should be levied.

Chief Deputy County Attorney Dennis McGrane on Wednesday said the point of the $750 fine was not to pay for the prosecution. He said in his reply to the motion that, "The fine is simply one aspect of a felony defendant's sentence that the state believes adds an important dimension to the punishment imposed for the commission of a felony offense.

"Some counties" are putting fine money in a "county attorney's fund," he said, but in Yavapai County, the money goes to the Board of Supervisors.

"Indigency has somehow risen to a protected class" in John Napper's view, McGrane said, but "a $750 fine treats everybody the same."

Napper said that was like saying that having only a staircase at a building entrance treats everyone the same, even though handicapped visitors would not be able to get to the door.

"Not all of them can get up the damned stairs," he said, adding, "It's not always your fault (if you're poor)."

McGrane said that the state Legislature could stop the practice, but hasn't. 'We've implemented a policy that establishes a minimum fine," he said.

Napper turned the argument around, saying that "by imposing mandatory minimum fines in some cases and not others," the Legislature has shown that, if the people of Arizona want that, it can be enacted as a law.

Superior Court Judge Tina Ainley took the matter under advisement but said she expected to have a decision fairly quickly.

I have a feeling that the county judge won't agree with the lawyers--doing so would set a major precedent with far reaching implications for criminal justice in Arizona. I bet it'll have to go to the US Supreme Court--in the unlikely event that they choose to take it that far, and the court agrees to hear the case.