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Fines, Fees, and Forfeiture Under the Commission on Civil Rights’ Microscope

| May 3, 2017

This blog post was written by Right on Crime research associates Jace Waechter and Brian Bensimon.

Recently, the Commission on Civil Rights held a hearing to investigate the Department of Justice’s (DOJ) efforts to reform fines and fees practices in state and local courts. Dr. Derek Cohen and Marc Levin of the Texas Public Policy Foundation’s Center for Effective Justice both spoke on reforming municipal fines and fees. Cohen called on the Department of Justice to maintain federalism, leaving policing powers to the states while “ensuring that the citizens’ unalienable rights are not sacrificed for expediency or budgetary necessity.” Cohen called the practice of budgeting in anticipation of fine and fee revenue “bad public policy,” urging states to fund government necessities with “stable revenue sources.”

Cohen also highlighted the issue of civil asset forfeiture as an area where the federal government could step in while still “abiding by the principles of federalism.” Civil forfeiture—the government practice of taking and keeping an individual’s property following an alleged crime—is not always used for furthering criminal investigations, but appears to be motivated in many cases to produce more revenue for the state. Cohen highlighted several flaws in current civil asset forfeiture law, including the practice of levying criminal charges against property itself:

“Unlike legal action taken against a person, the allegation of criminal conduct is usually against the property itself and not the owner. This occurs regardless of whether any criminal charges are actually brought against the person.”

Grover Norquist, President of Americans for Tax Reform, also spoke on government abuse, saying that fines and fees are often used to tax the “politically most vulnerable.” Norquist explained how travelers are often victims of harsh fines and fees:

“So, you have taxation without representation, which is why they place a lot of, when they go to give tickets, in certain areas where people are passing through any given town or city because those are the exact people who, when you annoy them, don’t vote against you.”

Unpaid fines and fees have too severe of consequences when left unpaid according to Norquist, “You take away their driver’s license, which is actually then, in many cases, taking away their job. I was looking at one study that 40 percent of the people who lost their license in New Jersey lost their job.” Norquist described this as a “cascading tax,” where a minor offense like a parking ticket ends with a lost job, incarceration, or both.

Marc Levin echoed both Norquist and Cohen. “There are some 10 million Americans who owe more than $50 billion in criminal justice debt.  And like Grover, we’re a conservative organization but we feel that this is an area where people can work across the spectrum to build a better system.” Levin said that excessive fines and fees are likely to create unnecessary incarceration. In some cases, these fees can prevent people from getting into treatment programs and pursuing alternatives to incarceration. During his address to the panel, he outlined several recommendations for improving fines and fees practices. First, Levin stated that the fines and fees should be “reasonable, transparent, and proportionate, and not in conflict with the goals of improving safety, reducing recidivism, ensuring victims get restitution.”

In the case of property violations, for instance, the money often goes to the government and not to the victim. Levin pointed out that many fines are unreasonable, such as the $10,000 fines in Texas for possession of less than a gram of a controlled substance. Substantial fines like the one in Texas “prevent people from getting into a diversion program because of the cost of the fees for going into some alternatives to prison, such as treatment programs, which we would want.” The result of these practices is unnecessary incarceration where according to Levin, “20 percent of the people in local jails are there due to an inability to pay.”

The hearing also focused on the DOJ’s “Dear Colleague” letter sent the previous year that addresses fines and fines in state and local courts along with the reform efforts currently underway in different states. The “Dear Colleagues” letter explained that while many individuals satisfy their court-ordered fine, some face escalating debt or repeated incarceration for nonpayment without consideration of indigence. In addition to being unlawful, the extent that such practices are geared towards revenue production—rather than public safety—can undermine trust between local government and their constituents. The letter made several recommendations for judicial actors to protect individual rights, such as an indigency determination before incarceration for nonpayment; alternatives to incarceration such as community service; and halting the use of arrest warrants and license suspension as means of coercing the payment of a court debt.

David Slayton of the Texas Office of Court Administration (OCA) spoke before the panel about his state’s efforts at reforming court ordered fines and fees. The 7 million cases Texas courts handled in the fiscal year of 2016 according to Slayton were “almost 80 percent” for violations of state traffic laws. A typical fine in Texas is $87, with the state revenue for fines exceeding $1 billion per year.

Slayton stated that a vast majority of the defendants in the 4 million convictions in these cases satisfied their legal obligations through payment. However, 15% of these cases resulted in confinement, costing taxpayers additional money. According to Slayton, efforts are underway to correct these practices by revising court rules which “provide mechanisms to address individual’s inability to pay, ensure that local courts have the flexibility in working with defendants to ensure to compliance obligations, and encourages local courts to offer appropriate alternatives to payment when appropriate.”

Slayton mentioned the development of an automated tool that will use data available to allow judges to assess a defendant’s ability to pay and will link community service and other alternative options with defendants seeking these options. In addition, together with technological innovation, Slayton presented recommendations for the Texas courts that “include such items such as requiring standard language on citations and other notifications from the court about alternatives to payment.”

Martha Wright of the Judicial Council of California spoke to the panel about the efforts made by the “Price of Justice” project launch shortly after the “Dear Colleague” letter in 2016. A key point of interest, Ms. Wright explains, is “our corrections costs saved and minimalizing confinement.”

Because California is unified court system with no municipal courts, preliminary analysis of corrections data is challenging. However, the Judicial Council examined ten counties in California and found that about 700 individuals a month are detained for an average of three days for unpaid fines – with the burden of payment passed on to the taxpayers of California. Like Texas, the “Price of Justice” project seeks to combine the reforms outlined in the “Dear Colleague” letter with innovation. One example of this is the “Ability to Pay” tool, which utilizes online interfaces to “improve access and make the process more efficient so that judges are getting the right information” by allowing individuals access to indigency determinations or request a payment plan.

The panel then shifted focus towards the state of Washington, which has the highest interest rate on court fines at 12 percent. Cynthia Delostrinos of the Administrative Office of Courts in Washington further explained that “for felonies, the mandatory minimum fine that is given to every defendant is $800. That fine cannot be reduced or waived by judges in any way.” In addition to that $800 fine, the court can add additional fines and fines issued by statute. These fines include public defense recoupment, filing fees, costs for serving a warrant, or cost for requesting a jury trial.

For example, if you request a jury of six, the cost is $125; if you request a jury of twelve, the cost is $250. Delostrinos further claims approximately 20% of one county’s jail population was there for failure to pay and most were indigent. Examples like these are blatant efforts at revenue production through court ordered fines and fees and fails to ensure public safety. In her opening remarks, Ms. Delostrinos pointed to a Supreme Court ruling that judges must consider the impact these legal financial obligations have on individuals, for both their current and future ability to pay. However, Ms. Delostrinos has found that few judges are making those assessments in her state.

Echoing the sentiments of the other participants, Judge Karl Demarce of Missouri stated the goal of his state’s reforms to fines and fees practices should be to “divorce law enforcement activity from revenue production.” He acknowledged that law enforcement and court operations need general revenue functions, yet they should appropriate the amount necessary to achieve the level of public safety that “people thought were worth paying their taxes for.”

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