Every day, courts across the United States impose myriad fines and fees on individuals who have been charged with criminal offenses or civil infractions. Fines are monetary charges intended as punishment for wrongdoing, while fees are charges imposed for the purpose of raising revenue or recouping costs. In some instances, the fees imposed relate directly to the person’s use of the justice system, e.g., probation fees or public defender fees. In other instances, the fee is a means of raising funds for an unrelated program or priority.
In California, for example, a report by the Lawyers Committee for Civil Rights under the Law of the San Francisco Bay Area (Not Just a Ferguson Problem) noted that a person who receives a ticket for a $100 offense, e.g., speeding, is actually charged $490 once fees are added. These fees pay for court operations, court construction, the county fund, the DNA fund, and EMS services, among other things. If the individual fails to pay the $490, he or she is charged additional fees of over $300 and the individual’s driver’s license can be administratively suspended.
In Calhoun County, Michigan, the court costs are assessed in misdemeanor cases based on a formula from the State Court Administrative Office. The formula calculates the operational cost for the court and the annual number of misdemeanor cases in which individuals plead guilty or are found guilty. The County then apportions the entire cost of operating the court to those defendants. The formula results in court costs of $355 for each misdemeanor case, to which “any other statutorily mandated or permitted fines, costs, fees, restitution or reimbursement amounts” are added.
In Florida, the Miami Herald reported that, in Miami-Dade County, almost 30 percent of drivers currently have suspended licenses, often for nonpayment of fines and fees. In addition, the court outsources outstanding balances not paid within 90 days to private collection agencies, which are permitted to charge a fee of up to 40 percent on top of the referred amount.
The Guidelines seek to address these types of situations by ensuring that (Guideline 1) fees are “related to the justice system and the services provided to the individual.” Further the Guidelines state that neither a fine nor a fee should ever “be greater than an individual’s ability to pay,” noting that judges must have the “ability to waive or reduce” any fine or fee (Guidelines 1 and 2). The Guidelines further state that a hearing on ability to pay should be held before the imposition of any fine or fee (Guideline 4). Counsel should be provided at such hearings (Guideline 8)
Guideline 3 states that “inability to pay a fine, fee or restitution should never result in incarceration or other disproportionate sanctions,” such as driver’s license suspension. Guideline 5 expands this prohibition to include the deprivation of fundamental rights, such as the right to vote.
The Guidelines also state that information about the fines and fees imposed and collected should be publicly available, including the programs receiving funds from fines and fees (Guideline 9). Finally, collection practices should be monitored to ensure that they do not impose excessive fees, delegate judicial functions, or employ intimidation tactics (Guideline 10).
The Guidelines come at a time when the use of fines and fees by state courts is subject to increasing scrutiny for the risk of fundamentally changing the purpose of low-level courts from institutions of justice to institutions of profit. This change was dramatically documented by the Department of Justice Civil Rights Division in a report on police practices in Ferguson, Missouri, which followed the killing of Michael Brown. (Civil Rights Div., U.S. Dep’t of Justice, Investigation of the Ferguson Police Department (Mar. 4, 2015).) The report detailed the way that both policing and court operations in Ferguson revolved around revenue generation: “The City budgets for sizeable increases in municipal fines and fees each year, exhorts police and court staff to deliver those revenue increases, and closely monitors whether those increases are achieved.” (Id. at 2.)
The impact of this focus on revenue was striking: “Our investigation has found overwhelming evidence of minor municipal code violations resulting in multiple arrests, jail time, and payments that exceed the cost of the original ticket many times over. One woman . . . received two parking tickets for a single violation in 2007 that then totaled $151 plus fees. Over seven years later, she still owed Ferguson $541—after already paying $550 in fines and fees, having multiple arrest warrants issued against her, and being arrested and jailed on several occasions.” (Id. at 42.)
This term, the US Supreme Court, for the first time, addressed the question of whether the Excessive Fines Clause of the Eighth Amendment applies to the states. The case, Timbs v. Indiana, 139 S. Ct. 682 (2019), concerned an individual who had pled guilty to a narcotics crime that carried a maximum fine of $10,000. To satisfy this fine, the State sough civil forfeiture of a car worth over $40,000. The trial court held that the forfeiture of the vehicle was disproportionate and thus unconstitutional. The state appealed, and the Indiana Supreme Court held that the forfeiture would not be excessive.
When the US Supreme Court granted certiorari in the Timbs case, the American Bar Association filed an amicus curiae brief in support of Mr. Timbs citing the Guidelines. The brief asserted that equal justice requires consideration of individual circumstances, rather than imposition of identical sanctions and that “[t]he Excessive Fines Clause should be a bulwark against fines that deny equal justice.” The brief noted that a fine of a particular amount might be paid with no effort by a wealthy person but bankrupt someone of lesser means, leaving the individual unable to provide basic shelter to his or her family. Failure to take into account this impact in determining whether a fine is unconstitutionally excessive would be fundamentally unjust.
The US Supreme Court unanimously held that the Excessive Fines Clause is incorporated into the Fourteenth Amendment and therefore applicable to the states. The Court did not determine whether the forfeiture of the $40,000 car to fulfil a $10,000 fine was excessive, but past cases give us some indication of how the Court will analyze future claims.
In United States v. Bakakajian, 524 U.S. 321 (1998), the Court applied the Excessive Fines Clause in a case concerning the illegal transportation of currency. Federal law requires that any traveler carrying in excess of $10,000 cash file a reporting document, and states that any person convicted of a willful violation of this provision shall forfeit “any property . . . involved in such an offense.” Mr. Bakakajian did not fill out a reporting document. When federal officers found currency in excess of $230,000 in checked baggage, they asked Mr. Bakakajian if he had additional currency with him. He stated both he and his wife had a small amount, but not in excess of the $10,000 maximum. When searched, officers found an additional amount totaling more than $100,000. The government charged Mr. Bakakajian with the violation and sought forfeiture of the entire amount, just over $350,000.
The Court held that although the violation was willful, the forfeiture of the entire amount would violate the Excessive Fines Clause. “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.” In determining proportionality, the Court looked not only to the fine amount for the offense, but also to the facts of the case, including the character of the defendant and the harm caused by the offense. While ability to pay was not at issue in Bakakajian, the willingness of the Court to look at the motive and characteristics of the defendant in determining whether the fine was unconstitutionally excessive strongly suggests that such consideration will be central when constitutional questions are raised regarding fines and fees charged to the indigent.
It can be no surprise that, with this level of attention, reform efforts are gaining traction. This is particularly true with regard to the use of driver’s license suspensions as punishment for nonpayment. The suspension of a driver’s license when an individual is unable to pay fines and fees is particularly invidious. A driver’s license suspension not only makes it difficult for an individual to take care of basic needs such as caring for children or grocery shopping, it also often renders the person unable to work, which further impedes the individual’s ability to pay down fines and fees. Frequently, the individual drives despite the suspension, which can result in other charges, incurring additional fines and fees and furthering a vicious cycle of mounting debt and prolonged involvement with the criminal justice system. Several states, including Florida, Illinois, Oregon, Minnesota, and Montana, are considering reforms to limit suspensions as a punishment for failure to pay. The ABA has been able to express support for some of these bills, citing the Guidelines.
This reform, even if successful, is the tip of the iceberg. Much more work is needed to ensure that no individual is punished in our courts solely for being poor. The Guidelines provide a roadmap for policymakers, who should regularly evaluate and improve the administration of fines and fees in their jurisdictions.
The ABA Ten Guidelines on Court Fines and Fees are available on the website of the ABA Standing Committee on Legal Aid and Indigent Defendants under Public Defense Policies.
