Colin McCallin March 16, 2016

Why Reform is Necessary

The painful truth about fees and fines in the United States court system is that they are increasingly used to create revenue on the backs of the very poor. Once a person is in the system, even for a minor issue like a municipal violation, the fines can grow exponentially if not paid immediately.  This can and often does lead to a vicious cycle which doesn’t offer any hope of escape for the indigent.  Consequently, some judges even jail people for inability to pay, effectively perpetuating a debtor’s prison.

If a person is charged with a more serious crime, the issue is often compounded by an inability to pay the growing costs making it more difficult to challenge the charges or fulfill the pretrial or probation obligations. The inability to pay for and fulfill these obligations leads to further violations, fines and potentially jail.  In Colorado, courts tack on interest at a rate of 12% per year for fines, costs, and restitution.  While this encourages defendants to pay their costs on time, many defendants who make good faith attempts to pay cannot get out of the hole because of the interest.

What is Being Done?

We are in the throes of a criminal justice reform movement at the Federal level. On Monday, March 14, the Department of Justice issued a resource package which attempts to bring this reform to the state level.

Reform topics have been mainly directed towards the federal justice system. However, most people will only interact with the system at their state level. The package provides a resource guide and outlines 7 points of focus in its Dear Colleague Letter as well as offering grant money to explore better approaches at the state level, where it is most needed.

The Key Points in the Letter

Attorney General Loretta Lynch has increasingly addressed the unconstitutional nature of current fee and fine practices starting with the DOJ’s scathing report on Ferguson, Missouri, released last March of 2015. But these unlawful practices are in every state. Under her direction, the following points were specifically outlined in the Dear Colleague letter:

  1. Courts must determine if non-payment was willful or if they are just unable to pay before jailing someone for not making a payment.

  2. Courts need to consider alternatives if someone cannot pay.

  3. Courts cannot force someone to meet a payment requirement before they can have a hearing.

  4. Courts must give “meaningful” notice on fees and fines and where needed, appropriate counsel.

  5. Courts should not use warrants or license suspensions to force payment, as those things only compound the burden and make it more difficult to collect.

  6. Bail and Bond practices that keep indigent people jailed for inability to pay must be stopped.

  7. These guidelines extend to any private contractors utilized by the system, for example, the companies that manage drug testing or that provide required education to those in pretrial services or on probation.

What are the Alternatives?

The primary change involves assessing each individual’s ability to pay and working from there. In many cases this could be a more manageable payment plan. It may also mean providing fee waivers and community service opportunities for those with no money. Also, courts must monitor private companies involved in services to insure they do not burden the defendant further. Judges also need to assess the bonds they issue on a case by case basis.

The package of resources also designates a task force that would develop and oversee best practices nationally.  Last but not at all least, the courts must provide counsel and access to the system that is constitutional and does not deny an individual’s right to due process because of an inability to pay.

The Costs of Reform 

Besides the burden to individuals caught up in the system, the enforcement of these practices is actually quite expensive. Not only does it pose an undue burden on the courts to follow up on these fee violations but if a person is jailed for debt it often costs the county or state more to keep them there than any fines they might collect. As collection methods grow more aggressive many offenders find themselves pressed to offend again in an effort to make the money needed. It also compromises child support payments by defendants which in turn forces the state to increase efforts to collect in that area. Unpaid fees may also end up acting as poll taxes, undermining a person’s constitutional right to vote in some states. Consequently, reforms in fine enforcement have been shown to save money over time and keep the court from conflicts of interest.

Hopefully this new move from the DOJ outlines a promising path to reform on both the state and the federal level by making the system truly just for all citizens, regardless of income.