Fees and Fines: The Criminalization of Poverty

In April of 2016, a 30-year-old woman from St. Louis was accused of stealing a tube of mascara from a Walmart and was arrested for shoplifting. She said that she threw away the package and forgot to pay the $8.74 for the mascara. She served jail time, received a fine and was put on probation. When she did not appear at a probation hearing, she was sent back to jail. She fell behind on payments and was sent to jail again. Her board jail bill is now more than $10,000.

Another Missouri woman was arrested for stealing nail polish from a Walmart. She pleaded guilty to a misdemeanor and was sentenced to 30 days in jail. The nail polish cost $24.29. After her jail time, she received a bill for $1,400 for room and board. She could not afford the board bill and was put in jail again — this time, the bill totaled $2,160.

In New Orleans, a 61-year-old black man is still paying off thousands of dollars in court costs and restitution for writing a bad check in 2014. In order to make his court-mandated monthly payments, he often has to shut off water or other utilities because failure to make the payment deadline could result in jail time.

Across the nation, offenders are burdened with excessive fees and fines.

Scale of National Crisis

The imposition of fees and fines impacts millions of Americans, most of whom are already marginalized, and has contributed to the negative perception of the justice system.

A recent study was conducted by Cornell University and FWD.us which found that in America, approximately one in two adults has had an immediate family member incarcerated (for at least one night). This is approximately 113 million people. Admissions to local jails have exceeded 10 million each year for at least the past 20 years. People earning less than $25,000 per year are 61 percent more likely than people earning more than $100,000 to have had a family member incarcerated, and three times more likely to have had a family member incarcerated for one year or longer. One in seven adults has had an immediate family member spend at least one year in prison, and one in 34 adults has had an immediate family member spend 10 years or longer in prison. Today, an estimated 6.5 million people have an immediate family member currently incarcerated in jail or prison (1 in 38). There are currently more than 1.5 million people incarcerated in America.

The United States has only 5 percent of the world’s population but houses 25 percent of the world’s prisoners. As the incarcerated population grows, so do the associated costs: the need for more courtrooms, judges, prosecutors, public defenders and probation officers. Increases in criminal justice spending have strained budgets and led to an amplified reliance on fines and fees in order to defray costs. This places a disproportionate burden on poor offenders, typically racial minorities, resulting in incarceration for minor offenses.

According to recent numbers, approximately two-thirds of people in prison have been assessed court fines and fees. Almost 65 percent of prisoners do not have a high school diploma, “15 to 27 percent of people leaving prison or jail expect to go to a homeless shelter upon release[,] and as many as 60 percent remain unemployed a year after release.”

Lisa Foster, who served on the ABA Task Force on Building Public Trust in the American Justice System, offered her opinion on why this issue has come to the forefront: “As we start incarcerating people for longer, state legislators look for ways to fund the justice system. At the same time, there are no new taxes. So, this is quintessentially a state and local issue and takes on different shapes in different jurisdictions.” Foster noted that in 43 states, an individual’s driver’s license can be suspended for failure to pay fees and fines and that people will often drive anyway when they need to get to work, take kids to school, or go to doctor. “If you are caught, you are charged with driving on a suspended license, which is a misdemeanor in most jurisdictions. Now you have a criminal conviction, more fines and fees imposed — and all because the underlying problem is you’re poor.”

Fees and Fines

Fines are monetary sanctions for infractions, misdemeanors or felonies; they are intended to deter crime, punish offenders and compensate victims for losses. Fees are itemized payments for court activities, supervision or incarceration; they are charged to defendants determined guilty of infractions, misdemeanors or felonies. Fees support operational costs of the criminal justice system. Fees may also have a punitive and deterrent purpose but are not designed to correspond to specific offense categories.

While punitive fines have always existed, fees have never been as extreme as they are today. In fact, fees are often in excess of fines. Many states also impose “collection fees,” which are payable to private debt-collection firms for the cost of collecting fees. With nearly half of American adults reporting that they could not cover a $400 emergency expense, even minimal fees can contribute to an endless cycle of debt. Lisa Foster, director of the Fees and Fines Justice Center, gave the startling example that if an individual in California runs a red light and a camera has evidence of this, that individual incurs a $100 fine, but the fees imposed are $390. The total penalty, therefore, is $490, which is more than a minimum-wage worker in California earns in a week.

Fees and Fines Across the Nation

In some states, the inability to pay fees and fines and the resulting criminal records prohibit individuals from exercising their right to vote. For example, in Georgia, individuals are required to pay all outstanding court fees and fines before regaining their ability to vote after being convicted of a felony.

In Ferguson, Missouri, an investigation conducted by the Civil Division of the U.S. Department of Justice concluded in March of 2015 that the Ferguson Police Department was overly focused on revenue rather than public safety. The report concluded that the focus on revenue resulted in unconstitutional policing, with an emphasis on exacerbating racial biases, and led to the infliction of unnecessary harm on citizens of the Ferguson community. Police officers were told to increase revenue through fees and fines. Patrol assignments were scheduled in order to seek aggressive enforcement of Ferguson’s municipal code, regardless of whether the strategies promoted public safety. Furthermore, officers’ promotions depended on the number of citations issued, and thus the revenue they generated, leading to increased arrests and allegations of racial bias, especially in predominantly black neighborhoods.

For example, in the summer of 2012, when a 32-year-old black man sat in his car cooling off after playing basketball in a public park, an officer pulled up behind the man’s car and demanded to see his identification. The officer accused the man of being a pedophile due to the presence of children in the park and ordered him out of his car to be searched. The officer also asked to search the man’s car, to which the man objected, citing his constitutional rights. The officer then arrested the man at gunpoint and charged him with eight violations of Ferguson’s municipal code. One charge, “Making a False Declaration,” was for stating his name as Mike instead of Michael. Another charge was for not wearing a seat belt, though he was seated in a parked car. Due to these charges, the man lost his job as a contractor with the federal government, a position he had held for years.

In New Mexico, defendants are charged a fee for a Brain Injury Fund, which helps pay for social worker services and medical care for people with brain injuries. Recent legislation in Florida requires courts to refer outstanding debt to collection agencies, which can add up to a 40 percent surcharge on existing debt.

The District of Columbia is considering harsher fines for speeding more than 25 over the limit. The current ticket amount is $300, but this could climb to $500. Failure to stop for a pedestrian in a crosswalk could result in a $500 ticket. Failure to stop before turning right on red could result in a fine of $100.

In 44 states and the District of Columbia, defendants can be billed for a public defender. In 41 states, inmates can be charged room and board for jail and prison stays. In 44 states, offenders can get billed for their own probation and parole supervision. And in all states except Hawaii and the District of Columbia, there is a fee for the electronic monitoring devices that defendants and offenders are ordered to wear.

Precedent: A Historical Look Back

In the seminal case on this issue, Bearden v. Georgia, the U.S. Supreme Court in 1983 ruled that it is unconstitutional to incarcerate people solely for their inability to pay fines or restitution.

In this case, the petitioner pleaded guilty to burglary and theft by receiving stolen property, but the court did not enter a judgement of guilty in light of the Georgia First Offender’s Act and instead sentenced the petitioner to probation on the condition that he pay a $500 fine and $250 in restitution (with $100 payable that day, $100 the following day, and the $550 balance within four months). The petitioner borrowed money to make the first payment of $200 but lost his job a month later and was unable to secure additional work in spite of repeated efforts. He notified the probation office before the payment due date, and the state filed a petition to revoke his probation. He was sentenced to prison after a trial court hearing. He appealed his case, claiming a violation under the Equal Protection Clause of the Fourteenth Amendment but was denied in lower courts. The U.S. Supreme Court ultimately ruled that it is unlawful to imprison a person solely because of a lack of resources to pay the fine.

Recent Efforts to Address the Issue

In December of 2015, the U.S. Department of Justice established the Working Group on Poverty and the Criminal Justice System: The Effect and Fairness of Fees and Fines, and sent a letter to chief justices and state court administrators with information about their legal obligations related to the enforcement of fees and fines.

Many other efforts are being conducted at state and local levels across the country to alleviate this systemic imbalance in the criminal justice system, including a recent resolution passed by the ABA House of Delegates establishing 10 guidelines on court fees and fines. In July of 2016, the ABA created the Task Force on Building Public Trust in the American Justice System in order to address increasing racial tensions, retaliatory violence against police officers, and the growing distrust in our nation’s justice system. In August of 2017, ABA President Hilarie Bass appointed the Working Group on Building Public Trust in the American Justice System to continue the task force’s work. The working group focused on developing Ten Guidelines on Court Fines and Fees, adopted at the ABA Annual Meeting in August of 2018 (see link in sidebar below).

Associate counsel for indigent defense Malia Brink, who worked on the ABA resolution establishing the guidelines, said,

By laying out how and when such fines and fees may be imposed in easy to follow guidelines, the ABA has taken a critical step in helping jurisdictions to end the criminalization of poverty. Many jurisdictions are looking closely at fines and fees and taking steps in the right direction.

Brink noted that the governor of California recently signed legislation that bans counties from charging juvenile detention fees, and Los Angeles canceled $90 million in debt owed for such fees. “The ABA Ten Guidelines on Court Fines and Fees are intended to help frame the discussions about fine and fee reform and assist jurisdictions in ensuring that nobody is subjected to punishment simply for being poor,” said Brink.

Recent Progress

In February of 2017, the National Task Force on Fines, Fees and Bail Practices created a bench card for judges. This document is a helpful tool for judges to ensure that the law is properly applied to those who owe fees and fines.

At least one jurisdiction is taking a proactive approach, with promising results. In September of 2017 in Texas, the state legislature passed a law that allows courts not only to ask defendants earlier in the court process about their ability to pay fees/fines but also to tailor the fees/fines according to their financial situation. The legislation also requires judges to conduct an inquiry at sentencing, limits warrants for arrest for noncompliance, and offers expanded options for community service. Once a financially reasonable payment amount is assigned, the likelihood that an individual will be able to pay increases substantially. This has led to an increase in court collections for the state by approximately 7 percent. A bench card was issued detailing these new requirements. This model could serve as a template for other states and jurisdictions.

The U.S. Supreme Court will soon weigh in as well. The Court granted certiorari in June of 2018 on a case examining whether the Eighth Amendment’s Excessive Fines Clause applies to the states under the Fourteenth Amendment. In Timbs v. Indiana, the ABA was among many organizations to file an amicus curiae brief in support of the petitioner. In this case, petitioner Tyson Timbs was addicted to hydrocodone after a work-related accident and then turned to heroin. He was clean for some time but began using again after his father died. He received $73,000 in life insurance upon his father’s death. He bought a Land Rover and then spent $31,000 on drugs. Eventually, he ran out of money and turned to alternative ways to support his addiction. Drug transactions with undercover officers led to his arrest. Timbs pleaded guilty and was sentenced to six years. He also agreed to attend a court-supervised addiction treatment program and pay fees totaling $1,200. The state also sought to obtain Timbs’s car by forfeiture. The trial court ruled that the monetary loss due to the car forfeiture was grossly disproportionate to Timbs’ crime and unconstitutional under the Excessive Fines Clause of the Eighth Amendment. The Land Rover was valued at approximately $40,000, and the maximum penalty for his offense was $10,000. The Indiana Court of Appeals agreed, but the Indiana Supreme Court reversed the ruling, stating that the Excessive Fines Clause is not applicable to the states. A decision in this case is expected this term.

This past summer, San Francisco made history by becoming the first jurisdiction in the nation to stop imposing fees for probation, electronic monitoring, and jail booking. The ordinance, unanimously adopted by the board of supervisors, recognized that the enforcement of court fees and fines leads to a cycle of debt, particularly for already marginalized populations.

Conclusion

Mass incarceration and criminal justice debt have increased dramatically in the last 30 years, but the problem has finally reached a tipping point. Though there may have been recent strides, much work still needs to be done. Barring any significant action at the federal level, this will remain a state and local issue. States and localities should carefully examine their practices in light of the legal ramifications of imposing fees and fines on criminal defendants.

Sidebar A

Debtors’ Prisons

After the War of 1812, most citizens were saddled with mounting debt. Debtors’ prisons (modeled after debtors’ prisons in London) were designed specifically to imprison those who could not afford to pay their debts, which were sometimes as low as 60 cents. In fact, two signers of the Declaration of Independence spent time in prison for not paying off loans (James Wilson, an associate justice of the Supreme Court; and Robert Morris, a close friend of George Washington). Many died in prison simply for being indigent. As a result, debtors’ prisons were outlawed in 1833, though it is evident that they still exist today in spite of the more recent 1983 U.S. Supreme Court case Bearden v. Georgia, which prohibited the imprisonment of individuals unable to pay court fines.

The Brennan Center for Justice at New York University law School examined the fees and fines for the 15 states with the highest prison populations and determined that there are four paths that currently exist to debtors’ prisons, as defined by the Brennan Center.

The 15 states housing the most inmates are, in order from most to least, as follows:

• California
  
• Texas
• Florida
• New York
• Georgia
• Ohio
• Pennsylvania
• Michigan
• Illinois
• Arizona
• North Carolina
• Louisiana
• Virginia
• Alabama
• Missouri

The four paths to debtors’ prison are as follows:

Path 1: Probation or Parole Revoked or Not Granted

All 15 states make payment of criminal justice debt a condition of probation, parole, or other correctional supervision. In some states, when individuals fail to pay, they may face rearrest and may ultimately be sent to prison. In Pennsylvania, persons in prison are ineligible for parole unless they pay a $60 fee; there is no exception for the indigent.

Path 2: Incarceration Through Civil or Criminal Enforcement Proceedings

At least 11 states have statutes or practices that authorize incarceration as a penalty for a willful failure to pay criminal justice debt, often under the guise of civil contempt.

Path 3: “Choosing” Jail

Interviewees in two states reported programs where defendants can request to spend time in jail as a way of paying down court-imposed debt. These programs are often voluntary in name only and reflect the untenable choices that poor defendants must make.

Path 4: Arrest and Prehearing Incarceration

All 15 states have jurisdictions that arrest people for failing to pay criminal justice debt or to appear at debt-related hearings, leading in many cases to multiday jail terms pending an ability-to-pay hearing.

Ed Monahan, a former Kentucky chief public defender, remarked,

Debt is not a criminal offense. Poverty is not a crime. Effectively criminalizing poverty through imposing excessive fees and fines with no appointment of counsel and no hearing on ability to pay is not only illegal, it amounts to the creation of debtors’ prisons. There is a better way — helping people who are in the criminal justice system succeed in the community. It is the moral response and is also in our common interest.

Sidebar B

Additional Resources

• ABA Ten Guidelines on Court Fines and Fees
  
• Harvard Law School, 50 State Debt Reform Builder
• New York University School of Law Brennan Center (search “fees and fines”)
• The National Center for State Courts (search “fees and fines” for its resource center)
• The Ella Baker Center for Human Rights, Who Pays? The True Cost of Incarceration on Families, (Sept. 2015)