Recent Findings and Emerging Best Practices: Illinois; Ferguson, Missouri; Washington
During the program, the panelists highlighted the new findings from Illinois, Ferguson, and Washington to give specific examples of LFOs and their effects. In addition, they discussed the best practices and reform possibilities emerging from this research and these jurisdictions.
Danielle Elyce Hirsch presented the findings of the Illinois Statutory Court Fee Task Force. The report from this task force, Illinois Court Assessments (June 1, 2016), covers the circuit courts but not the administrative and municipal courts. Hirsch clarified that, in Illinois, LFOs are referred to as “assessments.”
To give us some background first, Hirsch explained that, in the process of exploring the idea of adding a filing fee to fund civil legal aid services and an ambitious civil Gideon pilot, Illinois decided to create a bipartisan task force composed of all the relevant stakeholders to analyze assessments and make recommendations. The task force issued a report with findings and recommendations for the civil and criminal sides and several different audiences. First, the task force identified the types of civil and criminal court assessments present in Illinois circuit courts, from filing to mandatory arbitration fees. Next, Hirsch shared that they “tried to take a step back” and “did a schoolhouse rock—who touches how an assessment becomes law?” They found all the different stakeholders that were involved in the process. Next, they analyzed data from across the state and made four findings: (1) costs are increasingly passed on to court users; (2) assessments are constantly increasing and outpacing inflation; (3) there is extreme diversity in assessment amounts from one county to another (e.g., driving under the influence conviction assessments: $327 in Knox County but $1742 in McLean County); and (4) low- and moderate-income Illinois residents are severely and disproportionately affected.
The Illinois report recommends the following five core principles:
- Courts should be funded from general government revenue, not user taxes.
- There must be a relationship between an assessment and access to the courts because, if we keep increasing assessments, we could be impeding access and creating a barrier to reentry.
- Assessments should be simple, easy to understand, and uniform.
- There needs to be a nexus between an assessment and its rationale.
- There should be periodic review of assessments.
The Illinois report proposes four legislative actions and draft language: a civil assessment act with all assessments, an expansion of the fee waiver provision, a criminal and traffic assessment act similar to the civil one proposed, and a new criminal fee waiver provision.
Chiraag Bains explained that, shortly after Michael Brown was shot on August 19, 2014, the U.S. Department of Justice (DOJ) opened two investigations into the police department of Ferguson: one into Michael Brown’s shooting and a second one, covered in this webinar, into the practices of the police department. On March 4, 2015, the DOJ released a report on its investigation into the police department, which included an analysis of the Ferguson Municipal Court and fees assessed because, unlike in other jurisdictions, in Ferguson “the police essentially exercised supervision over the courts.” For example, the court clerk reported to the police chief, and the court was physically located within the police department. See also Press Release, U.S. Dep’t of Justice, Justice Department Announces Findings of Two Civil Rights Investigations in Ferguson, Missouri (Mar. 4, 2015). During this webinar, Bains focused on the findings pertaining to the court.
The DOJ found that the courts were violating the due process and equal protection rights of the people appearing before them. Bains noted that “the court routinely imposed excessive fines and ordered the arrest of low-income residents for failure to appear or to make payments, sometimes despite inadequate notice and also without inquiring into their ability to pay. And we also found that there was the use of unlawful bail practices resulting in unnecessary and unconstitutional incarceration.”
One of the most serious problems was that the court issued municipal arrest warrants for missed appearances. In 2013, in a city of about 21,000 people, the court issued more than 9,000 municipal arrest warrants relating to cases of minor violations, traffic tickets, and housing code violations. Bains also emphasized how Ferguson did not allow for a license suspension to be lifted until all fines had been paid in full, which was a stricter standard than was called for by Missouri law, and additional fines were imposed in these cases. One man who owed the city close to $1,000 in fines wrote to the city that he wanted to pay what he owed and was trying to put together what he could, but it was hard to get work with the warrants. The clerk still issued a warrant then for his arrest, even though he had made efforts and demonstrated inability to pay. Bains noted that the LFOs kept people “trapped in poverty,” especially taking into account the mounting debt and collateral consequences of repeated imprisonment, employment, housing, etc.
The DOJ found disparate impact motivated by racial bias. In Ferguson, African Americans were 68 percent less likely to have their cases dismissed, more likely to have cases last longer and have more court encounters, and 50 percent more likely to have an arrest warrant issued against them. Explicit evidence, such as messages and memoranda, established that the court was operating as a revenue generator, to the point that police shifts, changes in employment, and decisions relating to the enforcement of laws were made from the perspective of increasing revenue. Ferguson court revenues increased tremendously from $1.38 million in 2010 to the budgeted $3.09 million in 2015 that the city was on track to meet before Michael Brown was shot.
Bains noted that many police officers did not like what was happening in Ferguson and expressed that “they had not signed up to be collection agents, essentially, for the courts . . . and that this kind of activity was actually making it harder for them to gain the public’s trust.” The Ferguson case is now in the settlement phase. The DOJ reached a federal consent decree entered on April 19, 2016.
In response to a growing national concern over LFO issues, the DOJ convened, on December 2, 2015, a diverse group of court administrators, judges, lawmakers, affected individuals, and others. On December 3, the DOJ and the White House cosponsored an event on these issues. See Press Release, U.S. Dep’t of Justice, Fact Sheet on White House and Justice Department Convening—A Cycle of Incarceration, Imprisonment, and Debt (Dec. 3, 2015). The DOJ released a Dear Colleague letter on March 14, 2016, clarifying that, based on Bearden v. Georgia, courts must determine whether a person can pay before imprisoning them for fines. Bains urged us to review and use the DOJ Dear Colleague letter, which provides specific information on the legal challenges available (e.g., due process, equal protection), alternatives to incarceration, access to a hearing, notice and right to counsel, warrants, license suspension, bail practices, and responsibilities of court staff and private contractors. Legal challenges have focused on the Fourteenth Amendment, but there are many cases in the pipeline now to develop Eighth Amendment case law.
Bains shared best practices gathered by the DOJ and learned from Ferguson: ensure policing and court enforcement are not driven by revenue but by public safety, consider a comprehensive amnesty program to forgive cases and warrants before a certain date, eliminate unnecessary fees, define warrant practices to comply with due process, increase court transparency, and work closely with judges because many of them are willing to speak out and take action.
Dr. Harris’s research found that Ferguson is actually not an outlier. Her research looked at national statutes, but the quantitative and qualitative data came from the state of Washington. The following are among her findings after eight years of research and interviews:
- Monetary sanctions are regularly imposed nationally.
- Legal debt is usually substantial in relation to expected earnings.
- Non-legal factors (such as gender, race, and ethnicity) significantly influence the amount of LFO imposed.
- Monetary sanctions reduce family income and create long-term debt.
- LFOs lead to financial constraint especially because of cost increases with interest.
- LFOs create family stress and relationship strains affecting children.
- A cumulated disadvantage is generated—accessing food, housing, employment, and medication, and avoidance of police and other institutions.
- LFOs bring more emotional strain and delegitimizing of the justice system.
The Laura and John Arnold Foundation is committed to funding ongoing research involving primarily an eight-state (California, Georgia, Illinois, Minnesota, Missouri, New York, Texas, and Washington), five-year study of monetary sanctions led by Dr. Harris, which is currently in the first year. One item that is missing is national, systematic court data that would allow us to assess who is being sentenced, who is paying what, and what is the amount outstanding. In one county in Washington, for example, over $750 million is outstanding, but the average annual payment is $39 (again, the first $100 go to the collection fee).
A best practice identified by Dr. Harris’s research is a practice by a judge in Washington who gives credit and reduces a person’s debt if the person receives a General Educational Development certificate. Dr. Harris has also found other courts nationally that are more restorative and allow people to pay off their debt by attending programs that lead to better reintegration into their community. A much talked about best practice is the concept of day fines, which is like a sentencing grid, so the amount of the LFO is proportionate to the offense and what the defendant is able to pay. Some states, such as Ohio and Washington, have issued bench cards outlining what is mandatory and what is discretionary. New court rules (e.g., requiring individualized indigence assessment) and statutes (establishing clear legal criteria for indigence and eliminating non-restitution LFOs) are also changing the landscape of LFOs throughout the country.
There are also a number of best practices in litigation and legislation emerging from Washington. The American Civil Liberties Union (ACLU) of Washington recently settled a case with a county that had some of the most egregious LFO practices, and the Washington State Supreme Court has issued helpful decisions to be cited. The Washington legislature has passed two pieces of legislation with provisional restoration of voting rights (House Bill 1517) and more interest relief options (Senate Bill 5423). Recent Washington legislative efforts include highlighting the disproportionate effects on the poor and communities of color, reducing the 12 percent interest rate, defining terms (criteria for indigence, ability to pay, types of evidence defendants can provide, willful nonpayment), establishing clear alternatives, making LFOs discretionary, and establishing statewide consistency. A comprehensive bill died in 2015 and 2016 in the Washington Senate because of fiscal concerns (erroneous data to persuade legislators) and ideological differences (such as the view that people are choosing not to pay or interest is an incentive to payment or LFOs hold defendants accountable).
What Can You Do?
Here are suggestions of what you can do to make a difference on these issues:
- Watch the Criminalizing Poverty webinar, available at no cost, and reach out to the speakers.
- Share information so court actors and others understand their obligations.
- Work with community groups to educate the public.
- Conduct more research or coordinate with someone who can conduct more research. Having the data gives you the numbers and the power to put behind a movement to change how the system works. Advocates in Washington have used Columbia Legal Services and ACLU reports to push for further reform. The Juvenile Law Center is creating a database to search for LFOs in the juvenile justice system by state, and Harvard Law School’s Criminal Justice Policy Program is examining and seeking to change the adult system.
- Use the media.
- Continue your representation in post-sentencing.
- Provide advice to individuals about LFOs, as Columbia Legal Services has done.
- Challenge these practices in the courtroom when fines are imposed, especially when discretionary.
- Bring constitutional challenges and use the DOJ’s Dear Colleague letter.
- Propose policy and legislative change. Alameda County in California found no benefit to the county of juvenile courts fees, which helped the county pass a moratorium on these fees. Be active on the legislative level also to oppose bills being introduced.