AJEI: Ten Years After Ferguson – What’s Changed?

The AJEI 2024 Summit hosted a breakout panel about fines and fees used by courts to raise revenue and how law and policy around this practice has changed in the ten years since Michael Brown, a young black man, was shot and killed by a Ferguson, Missouri, police officer. Justice Laurie McKinnon, Associate Justice of the Montana Supreme Court, moderated.

A. Fines and Fees: Background

The first presenter was the Honorable Lisa Foster, a retired California Superior Court Judge and co-founder and co-director of the Fines and Fees Justice Center. Judge Foster provided background for the panel’s presentation. In short, since the 1980s, the burden of funding the justice system has shifted from general tax revenues to individuals involved with the justice system. To help fund the justice system, as well as other government programs and services, filing fees and court costs are charged in civil cases and fines and fees are commonly imposed in criminal cases. For example, in California, speeding fines fund twenty-eight different state programs; a speeding ticket is approximately a $100 fine plus almost $400 in fees. In New York, mandatory surcharges go straight into the state general fund.

In the aftermath of Ferguson, the issue of fines and fees became a national issue. A Department of Justice investigation and other studies found that the shift in funding has disproportionately harmed the poor, particularly poor people of color. This results in onerous collateral consequences if a person cannot afford to immediately pay the fines and fees, such as loss of voting rights, additional monetary sanctions, license suspensions, lengthier incarceration and supervision, difficulty finding housing and employment, and the destabilization of families and communities. These collateral consequences can tether a person to the justice system indefinitely. The public alarm regarding these disproportionate impacts led to legal and policy reform across the country. Courts are on the forefront of these changes. For example, some people who are unable to pay are not being assessed fees. Judge Foster also noted that reducing fines and fees in some cases can lead to increased accountability. When fines and fees are reduced to $100 or less, seventy-seven percent of people paid on time and in full. When the amount is $500, only twenty-five percent or less pay on time and in full.

B. Fines and Fees: Federal and State Law

The next presenter was Professor Beth Colgan, UCLA School of Law, one of the country’s leading experts on monetary sanctions in the justice system. She provided an overview of federal and state law on fines and fees. Under the Eighth Amendment’s Excessive Fines Clause, the analysis is (1) whether there is a “fine,” i.e., whether it serves “in part to punish”; and (2) whether it is “excessive,” i.e., whether it is “grossly disproportionate to the gravity of the offense.” Because there are only four Supreme Court cases interpreting the clause—all from the 1980s and 90s—there is room to litigate the issue, and courts are split on what constitutes an excessive fine.

Courts also look to the Fourteenth Amendment’s Due Process and Equal Protection Clauses when examining the legality of fines and fees. In Tumey v. Ohio (1927), the Supreme Court held that it “deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against him in his case.” In other words, is there an actual or apparent conflict when judges work with the state to figure out how to generate revenue? Additionally, in Williams v. Illinois (1970) and Tate v. Short (1971), the Supreme Court held that it violates equal protection to convert a fine to jail time simply because the defendant cannot pay the fine.

Lastly, courts look to the Fourth Amendment’s search and seizure and the Sixth Amendment’s right to counsel. In Beck v. Elmore County (Idaho 2021), the Idaho Supreme Court held that a magistrate court acted in excess of its jurisdiction in issuing a warrant because of petitioner’s “willful” failure to pay. The magistrate court failed, among other things, to inquire into petitioner’s ability to pay the fines and fees. And in Scott v. Illinois (1979), the Supreme Court held that there is no right to counsel if only a fine is at issue and not actual confinement, even if confinement is authorized. In terms of trends, Professor Colgan recommended looking at state supreme court practices, which are often ahead of federal courts and the Supreme Court.

C. Fines and Fees: New Jersey Case Study

The last presenter was Chief Justice Stuart Rabner of the New Jersey Supreme Court. He discussed New Jersey’s efforts at reform in response to Ferguson and the killing of George Floyd in 2020. The bulk of his presentation was about court reforms at the 500+ municipal courts in New Jersey, which handle 6 million cases a year, including traffic offenses, parking tickets, and minor criminal violations. These cases serve as a source of revenue for towns, counties, and the state.  A Supreme Court committee made up of various stakeholders (e.g., executive and legislative branch officials, prosecutors, public defenders, and municipal leaders) found an excessive use of contempt of court sanctions to resolve cases. What is unique about contempt fines is that 100% of fines collected go to the local town, unlike traffic fines, which are shared with the county and state. This invited the question of whether the criminal justice system was being used to raise revenue. The committee published its data in the legal and popular press and trained judges about the legal limits and proper procedures for using contempt fines. This resulted in a major decrease in the use of contempt fines, from over 125,000 fines assessed in 2015 raising $8.4 million, to less than 6,000 fines in 2023 raising less than $400,000. The committee made a similar finding about the excessive use of bench warrants for failure to appear and failure to abide by court orders. As with contempt fines, the committee expanded training to judges that emphasized limiting the use of bench warrants to more serious matters. As a result, the number of bench warrants issued dropped by thirty percent.

The committee also looked at the dismissal of old, unresolved, minor cases, finding there was no incentive to remove dated warrants from the rolls. For example, someone might have an outstanding bench warrant for a parking violation or failure to pay a fine, which could have serious consequences years later, such as subjecting them to a motor vehicle stop and arrest, even if the state could no longer prove its case. To address the issue, it was first determined which cases would be eligible for dismissal, focusing on the age and nature of the offense. Cases less than fifteen years old and certain serious offenses were not eligible, e.g., domestic violence and driving while intoxicated. That left certain minor offenses eligible for dismissal, e.g., going through a stop sign and running a red light. Next, after conducting regional hearings, a three-judge panel recommended the centralized dismissal of eligible cases and to institute a process for ongoing dismissals. As an initial matter in 2019, the New Jersey Supreme Court dismissed 787,764 old cases. The court also amended court rules to require periodic dismissal of eligible cases. As of October 2024, the court has dismissed almost 2 million additional old cases. As a result of these reforms, more New Jerseyans have been able to secure employment, housing, and education, without the burden of old fines, license suspension, and warrants for minor offenses not involving serious public safety issues. Law enforcement has also responded positively because they often do not have the resources or ability to pursue these cases.

Chief Justice Rabner briefly touched upon other similar reforms in New Jersey. For example, in 2020, the New Jersey Supreme Court addressed juvenile offenses by vacating unpaid discretionary juvenile fines, vacating open failure to appear warrants for certain old non-violent offenses, and by authorizing a process for annual review. In reality, most juveniles did not have the ability to pay, the fines did not serve any rehabilitative purpose, and the fines extended juvenile involvement with the justice system. Since 2020, judges have vacated nearly 2,000 warrants and another 1,000 cases are under review.

As another example of reform, in 2020, the New Jersey Supreme Court approved a framework to review the supervision of adults and youth on probation, which provided for early conclusion of supervision for people who have achieved critical rehabilitative goals. Applying this framework to over 100,000 cases, judges have ended probation supervision early for approximately 8,000 people. In a 2023 order, the court vacated certain unpaid probation supervision fees totaling over $7 million. This resulted in over 31,000 people concluding their court involvement. In addition, Probation Services now uses an ability-to-pay calculator, which enables officers to reassess and establish reasonable, individualized payment plans.

As a final example of reform, in 2023, the New Jersey legislature eliminated public defender fees. Representation by the statewide public defender is now without expense to the defendant. All judgments and liens imposed for prior public defender services have been vacated.

Chief Justice Rabner closed that New Jersey’s reforms eliminated burdens and halted prolonged interaction with the justice system that had no rehabilitative purpose. The reforms recognized the disproportionate impact the justice system had on people of color and people experiencing poverty. Reforms sought to achieve immediate and ongoing systemic results consistent with the goals of the justice system.