Evaluating the Reentry Hurdles of Fees and Fines Debt: A Checklist for State Reentry Taskforces

Information on the re-entry consequences of court-imposed financial obligations.

March 10, 2010

Financial obligations imposed during the criminal justice process can result in significant debt for defendants, many of whom lack jobs upon their release and who are already struggling to rehabilitate and avoid reoffending. These “legal financial obligations,” or “LFOs,” range from court costs levied at sentencing to supervision and treatment fees imposed as conditions of probation or parole. 

State mechanisms aimed at collecting LFOs compound their destabilizing effects by subjecting individuals to serious sanctions, often without an inquiry into their ability to pay. As your state Reentry Taskforce analyzes the “statutory, regulatory, rules-based, and practice-based hurdles to reintegration of offenders into the community”[1] it should consider the hurdles that LFOs can present to successful reintegration into society. 

Your Reentry Taskforce should begin by learning about your state’s fees and fines practices. In addition to legal research and government and court websites, you can consult criminal court clerk staff, public defenders, and probation and parole department personnel, many of whom may already be participating in the Reentry Taskforce.    

Below is a description of some common fee practices as well as recommendations to bolster reentry efforts and promote the efficient use of limited state resources.   

Questions for

Policymakers

Consider . . .

Recommendations

IMPOSITION OF FEES & FINES

Is the state trying to increase revenue by imposing new fees on criminal defendants in the court process?

 

 

 

  • Many of those reentering society are indigent, making collection difficult, and research shows that criminal justice debt can impede successful reentry significantly. 
  • The legislature should refrain from adding new fees,late payment penalties, surcharges, and interest costs, and should reduce the state and judiciary’s reliance on fees and fines revenue. 
  • To fully understand the impact of your state’s fees and fines, your state should collect data to evaluate the effects of LFOs on reentry.
Are courts imposing or enforcing the non-payment of LFOs without determining an individual’s financial situation? 

     

    • States’ collection efforts and resources are wasted trying to collect from those without the ability to pay.
    • With fee waivers for indigency, state collection efforts could be focused on those able to pay.
    • For those unable to pay, criminal justice debt inhibits successful reentry.
    • State law should exempt the indigent from paying court fees
    • Judges should be required to inquire into a defendant's ability to pay before imposing fees and fines and enforcing sanctions for a failure to pay.

    Are judges limited in their ability to impose alternative sanctions to fees and fines (such as community service)?

    • Meaningful community service benefits the community and can provide defendants with job training and skills that will further their reentry efforts. 

     

    • Your state should give judges alternatives to ordering the payment of fees and fines, such as meaningful community service options.  Community service should be designed to help defendants reintegrate into the community, not as a punitive measure.   

     

    COLLECTIONS & REASSESSMENT

    Do courts require payment at the time LFOs are imposed? 

    • Paying the full amount of LFOs upfront is impractical for many individuals serving time in prison.
    • Requiring this lump sum payment can threaten their economic security, thus threatening reentry and encouraging recidivism. 

     

    • States should allow defendants to pay in installments over time in an amount tailored to their ability to pay.
    • Payment plan programs should include opportunities for income and debt burden reassessments and the flexibility to adjust the payment schedule and amount in response to changed circumstances.    
    • Payment plan programs should not charge set-up fees or monthly interest, in order to avoid increasing the financial burden on indigent defendants.

    Does your state garnish wages or bank accounts to collect debt?  Or obtain liens against a defendant’s property?

    • Individuals reentering the community are likely to have low wage jobs but face a myriad of expenses, including hefty child support payments.
    • Entering civil judgments against defendants or using private collection companies can negatively impact defendants’ credit ratings, making it more difficult for them to secure housing and other necessities.
    • Your state should set a maximum percentage of a defendant’s income that can be assessed for payment of court debt.
    • The defendant’s other financial obligations, such as child support, should be taken into account when setting that maximum. 
    • To the extent possible, your state should not forward non-payment and lien information to credit rating agencies

     

    Do court clerks only accept payment in person? By money order?

    • Requiring payment in person can be disruptive for individuals who work during courthouse business hours. 
    • Fees on money orders and certified checks can be very high and increase the financial burden on defendants.
      • Your state should offer defendants various ways to pay fees and fines such as online payment or payment by phone with a credit card. 
     

     

    ENFORCEMENT OF NON-PAYMENT

    Does your state require defendants to “pay or appear,” (i.e. make payments by a certain date or appear in court to explain their failure to do so)?

    • While payment plans are a welcome option fordefendants able to pay over the course of time, the use of “pay or appear” proceedings to enforce these payment plans is counterproductive.
    • Attending hearings, which often take place during business hours, is difficult for defendants with new jobs. 
    • The consequence of missing a hearing can be serious:  if a defendant misses a scheduled hearing a warrant can issue for his arrest.  This leads to the frequent incarceration of individuals who have not been determined able to pay and is not a cost-effective practice.

     

    • States should avoid disruptive and expensive processes for nonpayment by establishing a defendant’s ability to pay before a warrant issues and utilizing alternative methods of enforcement before resorting to issuing a warrant.

    Does your state authorize the suspension of an individual’s driver’s license or vehicle registration for a failure to pay fees and fines?  

    • Restricting defendants’ ability to drive is a serious sanction that hinders their ability to work -- a necessity for reintegration into society and defendants’ future ability to pay debts. 

     

    • Driver’s license and registration suspensions should be limited to cases in which a court finds that the individual was able to pay the fees and fines and willfully failed to do so. 

     

    INCARCERATION AND CONSTITUTIONAL CONCERNS

    Are individuals in your state incarcerated for non-payment of fees and fines? 

    • The Equal Protection Clause of the United States Constitution protects individuals who are unable to pay fees and fines from incarceration solely for their failure to pay.  

     

     

    • The state cannot imprison an indigent defendant for failure to pay LFOs unless such failure was willful and not the result of indigency.[2] 
    • The court cannot impose a fine and automatically convert it into a jail term because the defendant is indigent and unable to pay.[3]
    • To protect defendants’ constitutional rights, counsel should be provided for any proceeding resulting from a failure to pay fees and fines that may lead to incarceration. 

    Does state law condition parole or probation on the payment of fees and fines?

     

    • Parole or probation cannot constitutionally be revoked for the failure to pay fees and fines without a determination that nonpayment was willful and not a result of the defendant’s indigency.[4]
    • Individuals will often stop reporting to parole or probation because they do not have the money to meet their court imposed financial obligations. 
      • States should not revoke parole or probation solely for a failure to pay fees and fines.
    • States should not use missed reporting dates as a pretext for incarcerating individuals who cannot pay
    • States should not revoke parole or probation for a failure to comply with requirements such as treatment or drug or alcohol testing when that failure was because the defendant was unable to pay treatment program or testing fees.

    For additional information, please contact Rebekah Diller at 212-992-8635 or Rebekah.Diller@nyu.edu; Mitali Nagrecha at 212-992-8162 or Mitali.Nagrecha@nyu.edu.


    [1] 42 U.S.C.A. § 3797 w(i)(1)(B); 42 U.S.C.A. § 3797 w(e)(4). 

    [2] Williams v. Illinois, 399 U.S. 235; Tate v. Short, 401 U.S. 395 (1971); Bearden v. Georgia, 461 U.S. 660 (1983). 

    [3] 401 U.S. 395 at 398. 

    [4] 461 U.S. 660 at 668-75.