James Dunson is confined to an 18 years to life prison term at Warren Correctional after the Montgomery County Common Pleas court convicted him of murder in 2013. In addition to imprisonment and financial restitution, the trial court assessed $6,199.10 against Mr. Dunson for the costs of his jury trial, pursuant to Ohio statute R.C. 2947.23. Because Mr. Dunson is indigent, Montgomery County garnishes his prison commissary account to recover these costs. Mr. Dunson earns less than $40 monthly by working in the prison’s “industry” program. If Mr. Dunson devoted his entire prison salary to paying down the costs of his jury trial, it would take him almost eighteen years to satisfy the judgment, which accrues interest at the rate of 3% annually. Mr. Dunson is unable to afford basic commissary expenses, such as Tylenol, or extra socks, using the money that he earns.
About two years after sentencing, Mr. Dunson filed a motion in the trial court asking it to reduce his costs or accept a payment plan that would allow him to afford basic necessities and pay over time. The trial court summarily denied his motion, holding that it need not consider an incarcerated person’s current or future ability to pay when assessing or modifying court costs. Mr. Dunson appealed pro se and the Second District Appellate Court reversed, holding that trial courts must consider ability to pay in these circumstances. The State appealed to the Ohio Supreme Court, which accepted jurisdiction and appointed a public defender to represent Mr. Dunson.
The Ohio Public Defender asked that civil society groups including the ACLU of Ohio enter the case at the Supreme Court as amici, to help demonstrate to the Court the constitutional and public policy implications of collecting court debt against impoverished incarcerated Ohioans.
Under Ohio’s criminal costs statutory scheme, as well as the Sixth and Fourteenth Amendments to the U.S. Constitution, state trial courts must consider present and future ability to pay when entertaining an indigent criminal defendant’s motion to waive or modify the costs of his jury trial.
The State-Appellant filed its merit brief on December 18, 2017. Mr. Dunson filed his brief and we filed our amicus brief on February 6, and the State filed its reply on February 26. The Supreme Court held oral arguments on April 24, 2018, then issued an order holding the decision until its decision in a companion case, State v. Braden. Braden was decided against the defendant-appellant in December 2018 (see that entry). On December 27, the court issued a slip opinion reversing the decision in Dunson based on its Braden decision.
Mr. Dunson’s attorney filed a motion for reconsideration on January 3, 2019 and the State filed its opposition on January 11.
On November 27, 2019 the Court granted the request for reconsideration in light of its decision in Braden, and vacated its January decision. The appeal was reinstated and held for a decision in State v. Taylor, a case on similar issues that was heard on January 7, 2020.
The State Supreme Court handed down its decision in State v. Taylor on July 2, 2020, holding that the Ohio statute does not require a trial court to consider ability to pay when determining whether to waive or modify court costs. This is a bad decision in terms of economic justice and is fatal for Mr. Dunson’s appeal. On August 4, the Court reversed and remanded Dunson to the appellate court for reconsideration consistent with its Taylor decision.