chevron-down Created with Sketch Beta.
April 12, 2023 HUMAN RIGHTS

ABA Efforts to Combat the Criminalization of Poverty

by Malia N. Brink

Excessive fines and fees, and the draconian measures courts have pursued to enforce and collect them, have burdened millions of Americans, particularly those too poor to pay. The alarming results, including jail time for unpaid fines and fees, have effectively criminalized poverty and eroded public confidence in the justice system.

In 2017, then ABA President Hilarie Bass directed the American Bar Association (ABA) Working Group on Building Public Trust in the American Justice System to develop ABA policy to ensure the fair administration of fines and fees. After a year of study and broad-based consultation within and outside the ABA, the Working Group developed the Ten Guidelines on Court Fines and Fees, which were adopted by the ABA House of Delegates in August 2018.

The ABA Ten Guidelines on Court Fines and Fees

The Ten Guidelines provide practical direction for government officials, policymakers, and others charged with developing, reforming, and administering court fines and fees. The Ten Guidelines seek to ensure that fines and fees are fairly imposed and administered and that the justice system does not punish people for the “crime” of impoverishment by:

  • Limiting the use of fees;
  • Ensuring prompt assessment of ability to pay;
  • Guaranteeing reduction or waiver of fines and fees for those unable to pay absent substantial hardship;
  • Ending the use of driver’s license suspensions or other disproportionate punishments for inability to pay; and
  • Forbidding jail time for failure to pay absent a finding of willfulness.
Excessive fines and fees, and the draconian measures courts have pursued to enforce and collect them, have burdened millions of Americans.

Excessive fines and fees, and the draconian measures courts have pursued to enforce and collect them, have burdened millions of Americans.


Effectuating the 10 Guidelines

Since adopting the Ten Guidelines, the ABA has supported myriad efforts to reform the use of court fines and fees and ensure that all individuals are treated fairly and equally in our criminal courts.

The ABA filed an amicus brief in the U.S. Supreme Court in Timbs v. Indiana, arguing that the excessive fines clause of the U.S. Constitution applies to the states and prohibits excessive court fines and forfeitures. The ABA has also issued letters in support of legislative efforts to reduce or eliminate court fines and fees in several states, including Montana and Illinois, and then ABA President Judy Perry Martinez published an editorial in support of fines and fees reform in Oklahoma. The ABA also has supported federal efforts to eliminate the use of driver’s license suspensions for nonpayment and protect voting rights from being contingent on payment of fines and fees.

A number of ABA entities have held educational and training events focused on the proper administration of fines and fees. The ABA Standing Committee on Legal Aid and Indigent Defense (SCLAID) held a public defense summit focused on more effectively combatting fines and fees in misdemeanor courts. The ABA Section of Civil Rights and Social Justice hosted several webinars on fines, fees, and the COVID-19 pandemic. And, most recently, a number of ABA entities, including the Government and Public Sector Lawyers Division, held a webinar looking at successful efforts to reform fines and fees.

In February 2023, ABA SCLAID released a report on the administration of fines and fees in New Mexico’s misdemeanor courts. The report measured the actual practices observed in New Mexico courts against the recommendations of the ABA Ten Guidelines on Court Fines and Fees. It concluded that New Mexico fails to appropriately ensure access to reduction or waiver of fines and fees for the indigent and that, as a result, far too often, impoverished individuals are jailed due to their inability to pay.

Ethics Formal Opinion 490

Adding further support to these efforts, in March 2020, the ABA Standing Committee on Ethics and Professional Responsibility released Formal Opinion 490 on the Ethical Obligations of Judges in Collecting Legal Financial Obligations and Other Debts. The opinion observes that the administration of fines and fees is “one important area of procedural justice in which the high standard consistently set by so many judges has not been met in some jurisdictions.” The opinion emphasizes that the “[i]nquiry into a litigant’s ability to pay before resorting to incarceration . . . is a core ethical obligation of the judiciary.” Failure to make such an inquiry violates not only ABA policy and due process but also Rules 1.1 and 2.6 of the Model Code of Judicial Conduct.

The opinion observes that budget crises have pushed courts to increase fines and fees. However, practices where “the court, the municipal government, or private contractors seek financial gain through incarceration or threats thereof” serve only to erode “public confidence in the independence, integrity, and impartiality of the judiciary.” To ensure impartiality as required by Rules 1.2 and 2.2, the opinion urges the use of “carefully proscribed procedures” as well as proper training to ensure full consideration of the ability to pay. The opinion further states that “doubts about ability to pay, the willfulness of a litigant’s failure to pay, the bona fide efforts of the litigant to secure the means to pay, and the viability of alternatives to incarceration, should generally be resolved against incarceration[.]”

Formal Opinion 490 thus provides another important tool in pushing courts to reform fines and fees practices.

Combatting Privatization

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.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Malia N. Brink

Senior Policy Attorney, Deason Criminal Justice Reform Center, Southern Methodist University Dedman School of Law; Member, ABA Working Group on Building Public Trust in the American Justice System; Council Member, ABA Section of Civil Rights and Social Justice

Malia N. Brink serves as senior policy attorney at the Deason Criminal Justice Reform Center at SMU Dedman School of Law. She is a member of the ABA Working Group on Building Public Trust in the American Justice System and the Council of theABA Section of Civil Rights and Social Justice