August 17, 2017

Job loss, incarceration, more: Cost-shifting court fines, fees hurting poor Americans, say panelists

In most states, the costs of the criminal justice system – such as the expense of a public defender, room and board in jail, and the cost of parole supervision – are no longer free and are being increasingly shouldered by defendants and offenders.

Left to right: Van Jones, CNN commentator; Maureen O’Connor, chief justice, Ohio Supreme Court; Jeffrey P. Robinson, deputy legal director, ACLU; Karol Mason, president, John Jay College

This shifting of costs, which has hit those with limited incomes the hardest, was the topic of an Aug. 10 ABA Center for Innovation program at the Annual Meeting in New York, “Just Debt? Reimagining Fines & Fees in America,” where panelists explained the consequences and explored creating a more just system.

It’s not just fees that are impacting poor Americans, but also court fees. “Fees can include late fees, collection fees and even fees to set-up a payment plan,” explained Joanna Weiss, director of criminal justice at the Laura and John Arnold Foundation, further sharing how quickly the cost burden can grow if people cannot pay. Arizona imposes a 19 percent rate on fees and Florida allows debt collectors to collect a 40 percent surcharge on fines, she said, providing two examples.

If defendants cannot pay, the collateral consequences can be devastating. People often lose their jobs, their driver’s licenses, their right to vote and so much more, said Nicole Austin-Hillery, director of the Brennan Center for Justice.

Thousands of people even risk incarceration if they cannot pay their fines and fees, added Joanna Weiss, director of criminal justice at the Laura and John Arnold Foundation, describing these fines and fees as “poverty penalties.”

“Using the criminal justice system to make money creates more problems than it solves,” said Weiss. She explained that it creates two kinds of criminal justice systems: If individuals can pay, they are free to go. If they unable to pay, they incur surcharges and additional fees, which often results in prolonged involvement in the criminal justice system and trap too many people in debtors’ prisons.

Panel moderator and CNN commentator Van Jones said he learned of the issue after the death of Michael Brown, during his 2015 visit to Ferguson, Mo., where 25 percent of the money that funds the city comes from fines and fees collected from the poor black citizens. “It should matter to us that poor folks are footing the bill in this country.”

The panel offered several solutions to address the problem.

“We have to educate the legislative and executive branch on these practices and how to resolve the issue,” said Maureen O’Connor, chief justice, of the Ohio Supreme Court, who emphasized that courts should not be the “ATM machine” for municipalities and counties.

Karol Mason, president of John Jay College, said that cities like Washington, D.C., are getting it right by implementing a bail system without money that allows defendants to be released with the understanding they will show up for their hearings without the court imposing numerous fees and/or incarceration. The ACLU has been urging courts to pursue more equitable approaches to criminal justice debt across the country.

Jeffrey P. Robinson, deputy legal director of the ACLU, said resolution to the problem requires local and federal leaders to work together with community organizations.

The Brennan Center is doing just that with its Criminal Justice Debt Project, which will address the impact of fines and fees on 10 jurisdictions in Florida, Texas and New Mexico.

Moreover, the National Task Force on Fines, Fees and Bail Practices, formed by the Conference of Chief Justices and the Conference of State Court Administrators, is coordinating with the Department of Justice to address the impact that court fines and fees have on communities across the United States. 

ABA-President Elect Hilarie Bass said the issue of fines and fees is at the forefront of collaborative work that the American Bar Association is doing with the National Conference of Bar Presidents. A working group was formed to focus on building trust in the American justice system and will address the important issue of fines and fees. “No one can deny that putting people in jail for not being able to pay fines is doing a tremendous injustice to our criminal justice system,” Bass said. “We cannot have confidence in our system if people believe that the mere failure to pay could potentially end up costing them their personal freedom.”

Other program participants included Geoffrey Burkhart, associate director of the ABA Center for Innovation and Jonathan Cole, president of the National Conference of Bar Presidents