While developing the Ten Guidelines, the Working Group members became aware of how often fees ordered by courts are collected by or on behalf of private companies that have contracted with the courts to provide core services. For example, increasingly courts have chosen to outsource pretrial and/or probation supervision to private companies, the services of which are paid for by charging the individuals under supervision a weekly or monthly supervision fee. Such individuals are also often charged for other aspects of supervision, including drug testing, counseling, or mandatory courses. Similarly, diversion programs are often administered by third-party providers that charge the individual directly for the program.
Too often, by hiring private companies to handle what were previously governmental functions in the criminal justice system, government agencies exacerbate the cycle of mandatory fees, nonpayment, and consequent additional fees. Further, government authorities often allow private companies to operate in the criminal justice system with little or no oversight and to charge fees untethered to actual costs.
To draw attention to the funding of private, for-profit companies through court fees, the Working Group endeavored to catalog and summarize the research done by other nonprofit entities, academics, and journalists on this issue. This work culminated in the publication of a report entitled Privatization of Services in the Criminal Justice System, which was published in June 2020. The report follows individuals through the criminal justice system from bail to incarceration, noting, at each stage, how often they may be charged user fees paid to for-profit corporations as they are prosecuted and punished.
The ABA Ten Principles on Reducing Mass Incarceration
More recently, the Working Group developed the Ten Principles on Reducing Mass Incarceration, which the ABA House of Delegates adopted in August 2022. The Principles reiterate that jurisdictions should “[p]rohibit incarceration for failure to pay unless the individual has had an ability-to-pay hearing, and a judge has (a) entered a finding of willful refusal to pay fines that are within the individual’s ability to pay, and (b) determined that incarceration is required to obtain compliance with financial obligations.” (Principle 5.)
The ABA Is Committed to Fines and Fees Reform
By continuing to draw attention to the ways in which our criminal justice system too often punishes poverty, the ABA has been instrumental in maintaining the momentum to reform fines and fees through and beyond the COVID-19 pandemic. These reform efforts have been extremely successful. According to the Fines and Fees Justice Center, in the last five years, 22 jurisdictions, including Oregon, have reformed laws that suspended driver’s licenses as a consequence of outstanding criminal justice debt. Numerous state and local governments have repealed or reduced fines and fees, including California, which recently repealed more than 50 court fees and forgave billions in outstanding criminal justice debt. Other jurisdictions, including Nevada, have completely decriminalized minor traffic offenses, ensuring that nobody will be jailed for nonpayment.
The ABA will continue its efforts to support reform and improve the administration of court fines and fees through advocacy and education until, across the country, our criminal justice systems serve their primary aim—public safety—without punishing people merely because they are poor.