Vol. 42, No. 1

The price of justice: Fines, fees, equity examined at joint Annual Meeting plenary

by Tim Eigo

“It’s a reimprisonment.”

That may be one of the most startling lines uttered at a special joint plenary hosted at the Annual Meeting of the National Conference of Bar Presidents and the American Bar Association. This special event took on the challenging issue of the injustice that court fines and fees can wreak on already impoverished individuals.

In the moderated discussion, speakers addressed the “pernicious effects” that judicial fines and fees can have on people’s lives—effects ranging from loss of jobs and housing all the way to imprisonment.

The topic is an even greater cause of discomfort due to its source. The court system historically has viewed itself as the location for justice and equitable outcomes. But the growing belief among some commentators that the courts are complicit in a system of inequity and poverty has caused hard introspection by chief justices and others.

As panelists noted, the unrest in Ferguson, Mo., was just one of a growing number of flashpoints that illustrate troubling truths. The first lessons to emerge from the teargas-filled streets were about policing and the relationship between police and communities.

Just below that noxious fog, though, another lesson came into view. That was the role that court fines and fees—sometimes modest, sometimes large—play in the overcriminalization of the poor. As speakers asked, if outstanding fines and fees could lead to police interaction, and those interactions are problematic, are courts partially responsible for the outcomes? Every time an individual is pulled over or detained by police, aren’t the decisions rendered in courtrooms in routine and bureaucratic ways present, too? Aren’t the courts standing behind the officers at every police stop?

‘Unending cycles of punishment’

The vibrancy of the topic, organizers believed, demanded a vibrant format. That is what led to a discussion moderated by CNN commentator Van Jones, who brought deep knowledge and hard questions to the dialogue. Given that the panelists and audience likely agreed with the position that there is a fines-and-fees crisis, Jones’ decision to avoid softball questions was a welcome one. He arrived committed to a real conversation, which served the audience best.

Before Jones and the panel took the stage, the topic’s landscape was described by a few speakers. Eager to hear the Jones-led dialogue, attendees seemed to appreciate that the speakers were well chosen, offered valuable information—and did so concisely.

Dean Andrew Perlman of Suffolk University Law School promised the event would examine “a deep problem that is having devastating effects on so many.” He added that the evening’s program would “offer critical information and shed light on impactful solutions.”

It fell to Joanna Weiss of the Laura and John Arnold Foundation to offer statistics to illustrate the depth of the problem. She described a systemic long-term goal to change how police interact with communities. “We must no longer trap people in unending cycles of punishment,” she believes.

Weiss’s examples included state laws that may charge defendants “room and board” fees. And in 44 states, she said, courts may charge you for a public defender—even if you’re acquitted. In addition, Florida allows a 40 percent surcharge to be added on fines and fees by debt collectors. In a society in which 47 percent of people cannot cover a $400 emergency, Weiss said, additional court fees “can entrench people in poverty and trap them in the criminal justice system.”

Added to the class disparities are those based on race and ethnicity, she said. She pointed to data that show police stops of people of color are out of proportion to their numbers in the population. All of this, she said, “undermines the trust of citizens for police, who are supposed to serve them.”

Collateral consequences, legislative action

Nicole Austin-Hillary, of the Brennan Center for Justice, added that outcomes related to fines and fees and the convictions that ensue go beyond the financial. The “collateral consequences” include a denial of educational loans to return to school, an inability to get a driver’s license, and the denial of the right to vote. “And that’s where we have a voice on what our democracy looks like,” she said.

The audience applauded warmly when Austin-Hillary said, “The solutions are multifaceted. It’s not the responsibility of any one part of the justice system to fix this.”

Setting her sights on Congress and state legislatures, she added, “The reason we are here on this issue is budgetary constraints. The courts use [fines and fees] to fund the work they have to do.” Acknowledging more could be done, Austin-Hillary said she was cheered by some recent legislative attempts to make a difference, including the End of Debtor’s Prison Act of 2016 (sponsored by U.S. Rep. Mark Takano); the Stop Debt Collection Abuse Act of 2017 (U.S. Senators Cory Booker and Mike Lee); and the Reverse Mass Incarceration Act of 2017 (U.S. Senators Cory Booker and Richard Blumenthal), which would provide incentives for local solutions.

Hilarie Bass, who became president of the ABA a few days after this program, reminded attendees about the ABA working group focused on building trust in the U.S. justice system. It is exploring how to enhance implicit bias programs and public education about criminal justice. Among those topics, Bass noted, “One of most important is the issue of fines and fees.”

“We cannot have faith in a fair system,” Bass said, “if it is one in which a fine can cost you your personal freedom.”

CNN’s Van Jones pushes panel beyond ‘happy talk’

The heart of the event opened with moderator Van Jones calling fines and fees “the big sleeper issue,” one that may escape the attention of many Americans even while it “bleeds communities dry.” To address the issue, he said, “a superstar panel” had been convened.

The CNN commentator and Yale-trained lawyer asked first: “Do we even need fines and fees? Could we run this whole system without them?”

Chief Justice Maureen O’Connor of the Ohio Supreme Court answered, “I don’t think that’s ever been determined. But it is inappropriate for courts to rely on those funds.”

She said that 25 percent of Ferguson’s municipal funding came from fines and fees. And when coffers ran low, the mayor and police chief collaborated to boost them.

“It’s constitutionally suspect that people should be burdened with that,” O’Connor said.

Karol Mason, president of the John Jay College of Criminal Justice in New York, said, “I think we can devise a way to run our justice system that does not rely on fines and fees.

“People need the confidence that the system is fair. If it disparately impacts the poor, it’s not. We must ask: ‘Can they afford this?’ If not, what’s the goal behind the fine?”

Interjecting that “I don’t just want a happy-talk conversation among like-minded people,” Jones pressed panelists by asking about equity for those who are not part of the criminal justice system.

“But should the non-lawbreakers have to pay [to fund the system]?” he asked. “Fines are punitive, so why shouldn’t people pay if they broke a law?”

Replied Mason, “If we all benefit from a justice system, we all should pay.”

Jeffrey Robinson, the ACLU’s deputy legal director, added, “Even if we can afford a fine ourselves does not mean we must walk through the world ignorant that other people cannot.”

Chief Justice O’Connor suggested that courts should be using more individualized assessments.

“A cookie-cutter approach is a problem,” she explained, “The system has to consider ability to pay. You cannot punish someone or incarcerate someone for being poor.”

She recommended that alternative solutions may present themselves as technology develops. For example, a pilot project by the National Center for State Courts, she said, would allow people to complete mandatory educational experiences online.

 

What the Constitution requires

Jones pushed back. “But isn’t individualized assessment more costly?” he asked. “Isn’t there a danger that we propose offenders put no money in, but this means it takes longer to get to a just solution?”

Robinson replied, “Individualized assessment is hard—but it’s what the Constitution requires. So what if there is inconvenience in complying with the Constitution? That’s what makes us America.”

On recent efforts to eliminate money bail, Jones asked if that “wouldn’t simply open the floodgates” to releasing people who should not be released.

Mason said that many organizations are studying this, among them the Office of Justice Programs, the Arnold Foundation, and the Misdemeanor Justice Project at John Jay College. Data shows that those concerns are overinflated, and what we know is, as Mason put it, “People did not create this system to be what it’s become.”

O’Connor added that 71 percent of those surveyed said they disagree with the idea of modern society using a “debtor’s prison.” And Robinson said, “When you look at bail and debtor's prison, you’re looking at opposite sides of the same coin.”

Who actually collects the fees?

Chief Justice O’Connor said that another damaging misconception had to be countered regarding the “ineffective and unconstitutional” use of fines and fees: the notion that courts are being “kept afloat” by fines and fees.

“Nothing could be farther from the truth,” she said. “Courts may be levying those amounts, but they are not collecting them.” Who is? Local and county governmental bodies.

“I say to elected officials, ‘Courts are not the ATM for your municipality or your county,’” O’Connor said. “‘You have to fund us; we do not have to fund you.’”

Also screened during this program was a video by the Vera Institute of Justice called “Past Due: Examining the Costs and Consequences of Charging for Justice in New Orleans.”

Tim Eigo

Tim Eigo is the editor of Arizona Attorney Magazine at the State Bar of Arizona.