The Steep Costs of Criminal Justice Fees and Fines

The past decade has seen a troubling and well-documented increase in fees and fines imposed on defendants by criminal courts. Today, many states and localities rely on these fees and fines to fund their court systems or even basic government operations.

A wealth of evidence has already shown that this system works against the goal of rehabilitation and creates a major barrier to people reentering society after a conviction. footnote1_9888c5e 1 Alicia Bannon, Mitali Nagrecha, and Rebekah Diller, Criminal Justice Debt: A Barrier to Reentry, Brennan Center for Justice, 2010, 30, http://www.brennancenter.org/sites/default/files/legacy/Fees and Fines FINAL.pdf; Matt Ford, “The Problem with Funding Government Through Fines,” Atlantic, Apr. 2, 2015, https://www.theatlantic.com/politics/archive/2015/04/the-problem-with-funding-government-through-fines/389387/. They are often unable to pay hundreds or thousands of dollars in accumulated court debt. When debt leads to incarceration or license suspension, it becomes even harder to find a job or housing or to pay child support. There’s also little evidence that imposing onerous fees and fines improves public safety.

Now, this first-of-its-kind analysis shows that in addition to thwarting rehabilitation and failing to improve public safety, criminal-court fees and fines also fail at efficiently raising revenue. footnote2_sg111lk 2 Traffic offenses may be criminal in some jurisdictions and civil in others. The authors attempted to include criminal traffic offenses but not civil traffic offenses. Juvenile justice, noncriminal traffic infractions, and restitution were beyond the scope of this analysis, though the costs of each are considerable. The high costs of collection and enforcement are excluded from most assessments, meaning that actual revenues from fees and fines are far lower than what legislators expect. And because fees and fines are typically imposed without regard to a defendant’s ability to pay, jurisdictions have billions of dollars in unpaid court debt on the books that they are unlikely to ever collect. This debt hangs over the heads of defendants and grows every year.

This study examines 10 counties across Texas, Florida, and New Mexico, as well as statewide data for those three states. The counties vary in their geographic, economic, political, and ethnic profiles, as well as in their practices for collecting and enforcing fees and fines.

Key Findings

• Fees and fines are an inefficient source of government revenue. The Texas and New Mexico counties studied here effectively spend more than 41 cents of every dollar of revenue they raise from fees and fines on in-court hearings and jail costs alone. That’s 121 times what the Internal Revenue Service spends to collect taxes and many times what the states themselves spend to collect taxes. One New Mexico county spends at least $1.17 to collect every dollar of revenue it raises through fees and fines, meaning that it loses money through this system.
• Resources devoted to collecting and enforcing fees and fines could be better spent on efforts that actually improve public safety. Collection and enforcement efforts divert police, sheriff’s deputies, and courts from their core responsibilities.
• Judges rarely hold hearings to establish defendants’ ability to pay. As a result, the burden of fees and fines falls largely on the poor, much like a regressive tax, and billions of dollars go unpaid each year. These mounting balances underscore our finding that fees and fines are an unreliable source of government revenue.
• Jailing those unable to pay fees and fines is especially costly — sometimes as much as 115 percent of the amount collected — and generates no revenue.
• The true costs are likely even higher than the estimates presented here, because many of the costs of imposing, collecting, and enforcing criminal fees and fines could not be ascertained. No one fully tracks these costs, a task complicated by the fact that they are spread across agencies and levels of government. Among the costs that often go unmeasured are those of jailing, time spent by police and sheriffs on warrant enforcement or driver’s license suspensions, and probation and parole resources devoted to fee and fine enforcement. This makes it all but impossible for policymakers and the public to evaluate these systems as sources of revenue.

Recommendations

• States and localities should pass legislation to eliminate court-imposed fees. Courts should be funded primarily by taxpayers, all of whom are served by the justice system.
• States should institute a sliding scale for assessing fines based on individuals’ ability to pay. The purpose of fines is to punish those who violate the law and deter those who might otherwise do so. A $200 fine that is a minor inconvenience to one person may be an insurmountable debt to another.
• Courts should stop the practice of jailing for failure to pay, which harms rehabilitation efforts and makes little fiscal sense.
• States should eliminate driver’s license suspension for nonpayment of criminal fees and fines. The practice makes it harder for poor people to pay their debts and harms individuals and their families. Lawmakers should follow the approach taken by Texas, where recent legislation will reinstate hundreds of thousands of licenses. footnote3_o4thed5 3 Tex. H.B. 2048, 86th Leg., R.S. (2019).
• Courts and agencies should improve data automation practices so that affected individuals understand their outstanding court debts and policymakers can more thoroughly evaluate the efficacy of fees and fines as a source of revenue.
• States should pass laws purging old balances that are unlikely to be paid but continue to complicate the lives of millions, as some jurisdictions, including San Francisco, have done. footnote4_ufq1lcx 4 San Francisco Office of the Treasurer & Tax Collector, “San Francisco to Become First County in the Nation to Eliminate All Locally Controlled Fees Assessed from People Exiting the Criminal Justice System,” May 22, 2018, https://sftreasurer.org/press-release-san-francisco-become-first-county-nation-eliminate-all-locally-controlled-fees. This would also ensure that individuals who have been free and clear of the criminal justice system for many years are not pulled back in simply on the basis of inability to pay.

What’s the Difference Between Fees and Fines?

Fines, imposed upon conviction, are intended as both deterrence and punishment. In Texas, for example, a fine of up to $500 may be imposed for a low-level offense, such as a traffic violation; a fine of up to $2,000 may be imposed for more serious misdemeanors, such as harassment or minor drug possession; and a fine of up to $4,000 may be imposed for the most serious misdemeanors, such as unlawful carrying of a weapon and assault with injury. footnote5_xwz2r9f 5 Texas Penal Code §12.03 (1994).

Fees, by contrast, are intended to raise revenue. footnote6_63xx9aa 6 Joseph Shapiro, “As Court Fees Rise, the Poor Are Paying the Price,” NPR, May 19, 2014. Often they are automatically imposed and bear no relation to the offense committed. In most cases, fees are intended to shift the costs of the criminal justice system from taxpayers to defendants, who are seen as the “users” of the courts. They cover almost every part of the criminal justice process and can include court-appointed attorney fees, court clerk fees, filing clerk fees, DNA database fees, jury fees, crime lab analysis fees, late fees, installment fees, and various other surcharges.

The Growing Use of Fees and Fines — and the Damage They’ve Done

Since 2008, almost every state has increased criminal and civil court fees or added new ones, and the categories of offenses that trigger fines have been expanded. Our justice system increasingly relies on fees and fines charged to defendants in criminal cases to fund basic operations. footnote7_xsks7zs 7 Matthew Shaer, “How Cities Make Money by Fining the Poor,” New York Times Magazine, Jan. 8, 2019, https://www.nytimes.com/2019/01/08/magazine/cities-fine-poor-jail.html.

For example, North Carolina collects 52 separate fees, disbursing them to four state agencies and 611 counties and municipalities. It uses fees to fund half of the state’s judicial budget as well as jails, law enforcement, counties, and schools. footnote8_h6i5jew 8 Joseph Neff, “No Mercy for Judges Who Show Mercy,” Marshall Project, Nov. 29, 2017, https://www.themarshallproject.org/2017/11/29/no-mercy-for-judges-who-show-mercy. Using fee and fine revenues to fund the judiciary can create perverse incentives with the potential to distort the fair administration of justice. When criminal courts become responsible for their own financing, they may prioritize the imposition of significant fee and fine amounts and dedicate substantial staff to collecting these sums.

In Florida, a significant portion of the funds raised through fees and fines is allocated to the state’s general coffers. footnote9_nn9zey8 9 Florida Clerks of Court, interview. Colorado has used increased court fees to replace and update public buildings, including a judicial complex and a museum. footnote10_01dll8e 10 Mark Harden, “Judicial complex, museum get go-ahead,” Denver Business Journal, June 4, 2008, https://www.bizjournals.com/denver/stories/2008/06/02/daily32.html?ana=from_rss. Florida and Kentucky increased court fees as a way to address state fiscal crises. footnote11_nnuxiae 11 Rebekah Diller, Court Fees As Revenue?, Brennan Center for Justice, 2008, https://www.brennancenter.org/analysis/court-fees-revenue; In Oklahoma, where a 1992 referendum made it nearly impossible for legislators to raise taxes, lawmakers have increasingly come to rely on fees and fines to fund the state budget. footnote12_0ozu3pi 12 Kate Carlton Greer, “Over The Years, Court Fines, Fees Have Replaced General Revenue Funds,” KGOU, Feb. 9, 2015, http://kgou.org/post/over-years-court-fines-fees-have-replaced-general-revenue-funds. Some fee and fine revenue has even been used for personal perks: fees and surcharges allocated to a judicial expense fund in Louisiana were found to have been spent on luxury goods, including supplemental health insurance for judges, two Ford Expeditions, a leather upholstery upgrade for a take-home vehicle, and a full-time private chef. footnote13_nqrbhc4 13 Criminal Justice Policy Program, Confronting Criminal Justice Debt: A Guide for Policy Reform, Harvard Law School, 2016, http://cjpp.law.harvard.edu/assets/Confronting-Crim-Justice-Debt-Guide-to-Policy-Reform-FINAL.pdf.

This increase in fees and fines has exacted a steep human cost. Individual amounts may be small, but they can quickly add up, meaning indigent people may face hundreds or thousands of dollars in accumulated debt that they’e unable to pay. While “debtors’ prisons” have been declared unconstitutional, many states still incarcerate people for failure to pay criminal justice debt. And even when failure to pay is not an explicit charge, jail sentences are handed down for failure to appear or failure to comply — infractions that often stem from failure to pay. In Socorro County, New Mexico, for example, one magistrate judge has adopted a “three strikes” policy. For each missed payment of outstanding court costs, the court’s enforcement response progresses from a bench warrant, to a bench warrant with a bond, to a charge of failure to comply that carries a three-day jail sentence. Each day spent in jail may then be credited against the defendant’s outstanding debts. footnote14_kwm2ql7 14 Deborah Fowler et al., Pay or Stay: The High Cost of Jailing Texans for Fines and Fees, Texas Appleseed and Texas Fair Defense Project, 2017, https://www.texasappleseed.org/sites/default/files/PayorStay_Report_final_Feb2017.pdf. Under the guise of different charges, such a policy perpetuates the function of a debtors’ prison.

In this way, criminal justice debt represents a significant barrier to a person’s chances of successfully reentering society following a conviction. It also hurts the families of those who are incarcerated, depriving them of a wage earner while adding new court costs to the defendant’s criminal debts. One study found that about half of families with convicted members cannot afford to pay fees and fines. Moreover, nearly two in three families who had a family member incarcerated were unable to meet their households’ basic needs, such as food and housing. footnote15_qp1x0um 15 Ella Baker Center for Human Rights et al., The True Cost of Incarceration on Families, Sept. 2015, 7–9, https://ellabakercenter.org/sites/default/files/downloads/who-pays.pdf. States such as Florida that suspend driver’s licenses for unpaid fees and fines only exacerbate this economic distress, as those who lose their license may then lose their job as well as their ability to take family members to school or medical appointments and to drive themselves to court.

There is also evidence that fees and fines are assessed in a racially discriminatory way. A 2017 report by the U.S. Commission on Civil Rights found that municipalities that rely heavily on revenue from fees and fines have a higher than average share of African American and Latino residents. footnote16_5dclidn 16 U.S. Commission on Civil Rights, “Targeted Fines and Fees Against Communities of Color: Civil Rights & Constitutional Implications,” Sept. 2017, 3, https://www.usccr.gov/pubs/2017/Statutory_Enforcement_Report2017.pdf.

By now, these harms have been well documented. But there has been much less research conducted on the fiscal costs of fees and fines. This report aims to start filling that gap. Without an understanding of how much governments are spending to administer fees and fines, and how much in fees and fines is never collected, decision-makers can’t accurately gauge the efficacy of these programs.

Report Terms

Assessment. As used in this report, assessment refers to the amount of the fee or fine imposed by a judge on a criminal defendant at sentencing. For many minor offenses, assessments are made at the conclusion of a simple hearing before a judge or magistrate in which the defendant makes a plea, the evidence is reviewed, and a decision is made by the judge or magistrate. More complex and serious criminal cases may involve separate appearances in court, including an arraignment in which the charges are read and a defendant’s plea is accepted by the judge, a trial before the judge (and possibly a jury), and a sentencing hearing, at which point fees and fines may be imposed by the judge.

Criminal justice debt. Criminal justice debt is composed of legally binding financial obligations imposed on those convicted by criminal courts. While such debt may comprise fees, fines, and victim restitution — payments ordered to victims as compensation — this report deals only with fees and fines (see below), which are recognized as revenue on the balance sheets of courts and other public agencies. In contrast to private and many civil debts, criminal justice debt is enforced by the criminal justice system and can result in the issuance of arrest warrants for nonpayment, criminal court hearings, additional fines and court surcharges, detention in jail, inclusion on criminal records, and — in some states — loss of voting privileges.

Fines. Criminal fines are penalties imposed on defendants after conviction, intended as both deterrence and punishment. The amount of a fine is set by statute and based on the severity of the crime. For misdemeanors, fines may be relatively small. For felonies, fines are typically larger. Fines vary by jurisdiction and may be enhanced for repeat offenses. For example, each of the three states included in this study imposes fines as a penalty for drunk driving. For a first offense, New Mexico assesses a $300 fine, Florida assesses a $500 fine, and Texas may assess up to $2,000. In all three states, drunk driving is an enhanceable offense, meaning that the penalties, including fines, escalate depending on the number of prior offenses. footnote17_j0as9wz 17 Fla. Stat. §316.193 (2019), http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0300–0399/0316/Sections/0316.193.html; New Mexico Motor Vehicle Department, “DWI Information,” http://www.mvd.newmexico.gov/dwi-information.aspx; Texas Department of Transportation, “Driving While Intoxicated (DWI),” https://www.txdot.gov/inside-txdot/division/traffic/safety/sober-safe/intoxication.html.

Fees. Criminal fees, unlike fines, are intended to raise revenue. Often they are automatically imposed and bear no relation to the offense committed. In most cases, fees are intended to shift the costs of the criminal justice system from taxpayers to defendants, who are seen as the “users” of the courts. Cash-strapped state and local governments rely on criminal fees to raise revenue for other purposes as well, thereby avoiding the politically unpopular step of raising taxes. Most jurisdictions impose certain fees on every defendant convicted, regardless of the nature of the offense. For example, one convicted of a misdemeanor in Florida is charged a $20 court cost fee, a $3 Court Cost Clearing Trust Fund fee, a $60 Fine and Forfeiture Fund fee, a $20 Crime Stoppers Program fee, a $50 prosecution fee, a $50 crime compensation fee, and a $20 Crime Prevention Fund fee, and potentially others. footnote18_juksnli 18 Fla. Criminal Procedure and Corrections Code §938.01–938.06 (2005). Other fees are offense-specific and imposed only on defendants convicted of certain offenses. For example, in New Mexico there are fees for defendants convicted of driving under the influence (DUI) or drug offenses. footnote19_2d8zrks 19 New Mexico Motor Vehicle Department, “DWI Information,” http://www.mvd.newmexico.gov/dwi-information.aspx. While fees may be imposed by courts, parole and probation departments, and jails and prisons, this report focuses on fees imposed by criminal courts following conviction. In some jurisdictions, fees may be referred to by another name. For example, some of the fees imposed by courts in Texas are called “court costs.” footnote20_43gju3e 20 Texas Judicial Branch, “Filing Fees and Court Costs,” www.txcourts.gov/publications-training/publications/filing-fees-courts-costs.aspx.

Revenue. Fees and fines both serve as sources of revenue for state and local governments. The permissible uses for this revenue are typically set by statute. Many fees are earmarked for specific purposes, such as programs that divert defendants from prison, courthouse maintenance, or traffic safety education. Much of the revenue from criminal justice fees and fines is used to fund the judiciary or routed to law enforcement. In some cases it goes to a state or locality’s general fund, where it may be used for purposes wholly unrelated to law enforcement or the courts. Fine revenue is disbursed according to statute in each of the three states studied. In each state, most fine revenue goes into a general fund at the state or municipal level, though some is directed toward particular programs, such as road maintenance or schools.

While state statutes prescribe the distribution of funds collected through the criminal justice system, the allocation of revenue varies. For example, in New Orleans, the $11.5 million in criminal justice fees and fines collected in 2015 was distributed among eight agencies, providing funding for the municipal court, district court, public defenders, and traffic court. footnote21_7u49xqq 21 Mathilde Laisne et al., Past Due: Examining the Cost and Consequences of Charging for Justice in New Orleans, Vera Institute of Justice, 2017, 20–21, https://www.vera.org/publications/past-due-costs-consequences-charging-for-justice-new-orleans. In Allegan County, Michigan, half of court-imposed fees went toward running the county courthouse, paying employee salaries, heating the court building, purchasing copy machines, and underwriting the cost of the county employee gym. footnote22_sxjxx7u 22 Shapiro, “As Court Fees Rise, the Poor Are Paying the Price.”

Waivers. In some courts, judges have authority to reduce the amount of certain fees and fines imposed at conviction. footnote23_co6fmux 23 Neff, “No Mercy for Judges Who Show Mercy.” Amounts reduced without a quid pro quo (such as the performance of community service in lieu of payment or time spent in jail) often are referred to as waivers. This is the meaning of the term as employed in this report. The issuance of waivers varies considerably among jurisdictions and states.

Jail credits. Some states waive fees and fines in exchange for jail time, which are referred to as jail credits and are distinct from the kinds of credits through which people earn reductions to sentences. Though this alternative might be pitched as a benefit to those who want to discharge their debt in this manner, no one who has a choice and can make other payment arrangements would choose jail. Further, many defendants have no say in the matter. For example, one magistrate judge in Socorro County, New Mexico, jails individuals for missing three payments without making a court appearance, regardless of ability to pay. footnote24_cy7pph2 24 Brennan Center original research (see Appendix B: Methodology). Perversely, people can accumulate additional fees during their stay in jail, leaving them with more debt than when they entered. footnote25_j4dcug1 25 Lauren-Brooke Eisen, “Paying for Your Time: How Charging Inmates Fees Behind Bars May Violate the Excessive Fines Clause,” Loyola Journal of Public Interest Law 15 (2014): 319–341.

In some states, including Alabama, Michigan, and Texas, when people are picked up on a warrant for a failure to pay traffic tickets or fines, they may be jailed involuntarily to pay off delinquent criminal justice debt through credits issued for each day spent in jail. footnote26_mq4uj7l 26 State Bans on Debtors’ Prisons and Criminal Justice Debt, Harvard Law Review 129 (2016): 1024–1045, https://harvardlawreview.org/2016/02/state-bans-on-debtors-prisons-and-criminal-justice-debt/. These credits do not generate actual revenue but simply exchange jail time for debt reduction at a great cost to the government. Jailing also comes at great cost to the people affected and their families. The U.S. Supreme Court has held that imprisonment for unpaid fines or fees without a hearing to determine ability to pay is unconstitutional. footnote27_dbpdkrz 27 Bearden v. Georgia, 461 U.S. 660 (1983). If courts find that a defendant is unable to pay, they are required to consider alternatives, such as deferrals, payment plans, community service, and waivers. Unfortunately, in practice, many courts fail to make these financial determinations. footnote28_7w3tspb 28 “Settlement Requires L.A. Superior Court to Consider Drivers’ Inability to Pay Traffic Fines,” American Civil Liberties Union of Southern California, Oct. 8, 2018, American Civil Liberties Union of Southern California, October 8, 2018, https://www.aclusocal.org/en/press-releases/settlement-requires-la-superior-court-consider-drivers-inability-pay-traffic-fines.

Community service credits. Most states offer some type of community service option as an alternative to payment, though these practices vary significantly within and across states. footnote29_j91awn2 29 Bannon et al., Criminal Justice Debt: A Barrier to Reentry, 15–17. Some states offer programs assigning people to pick up trash or maintain parks in lieu of a jail sentence or fine, while other states allow people to meet educational requirements to pay off their debt. Some types of community service require classes for certification (e.g., controlling traffic for the Department of Transportation), which can lead to employment opportunities after the debt is paid. footnote30_jjok17i 30 Ibid.

In some states, community service is seldom available to defendants because judges feel pressure to raise revenue for their city or county. footnote31_usj2h67 31 Ibid., 30. For those who get the opportunity, community service hours are often paid at the federal minimum wage, only $7.25 an hour, making it unrealistic for people to devote the time necessary to work down their debt. This is even harder if they have jobs or are caring for family members. footnote32_cohlwt9 32 Ibid.

A. Fees and Fines Are Inefficient for Raising Revenue

The costs of fee and fine enforcement are huge. For example, in 2017 misdemeanor and traffic courts in Travis County, Texas, spent nearly $4.8 million on in-court proceedings and staff costs related to fee and fine compliance. In addition, the county spent more than $4.6 million on jailing those who failed to pay fees and fines and those allowed to earn jail credit against amounts owed.

On average, the jurisdictions in this report spent more than $0.41 for every dollar they collected over the period studied. Because of a lack of available data, this figure counts only in-court and jail costs. footnote1_0lzabyk 1 This estimate is necessarily conservative. The authors were not able to estimate a number of costs, such as time spent by law enforcement, DMV employees, probation and parole officers, and others. If all costs were measured — including the sizable cost to law enforcement for warrant enforcement and arrests, the cost to Department of Motor Vehicles (DMV) offices for processing suspended licenses, and the cost to parole and probation officers for fee and fine compliance footnote2_0z0k7w2 2 Bannon et al., Criminal Justice Debt. — it would be even higher. footnote3_l07t0pp 3 Ibid.

Compare these collection costs to the cost of raising revenue through taxation. The Internal Revenue Service spends just $0.34 for every hundred dollars in taxes collected. footnote4_jbt590z 4 Internal Revenue Service, Internal Revenue Service Data Book, 2017, 66, https://www.irs.gov/pub/irs-soi/17databk.pdf. In other words, it costs jurisdictions, on average, 121 times more to collect criminal fees and fines even without including some of those costs — than it costs the IRS to gather taxes. Meanwhile, Texas spends around $0.31 for every hundred dollars in taxes collected. footnote5_hhw99fc 5 United States Census Bureau, Annual Survey of State Government Tax Collections, 2017, https://www.census.gov/data/tables/2017/econ/stc/2017-annual.html; Texas Comptroller of Public Accounts, 2017, https://comptroller.texas.gov/transparency/budget/tools.php (computed based on FY 2017 expenditures). New Mexico spends roughly $0.95. It’s clear that general taxation is significantly more cost effective than criminal fees and fines at raising revenue. footnote6_fizc5j5 6 New Mexico Sunshine Portal, “Budget,” 2019, https://ssp2.sunshineportalnm.com/#budget (computed based on respective tax agency expenditures).

B. Collecting Fees and Fines Detracts from Public Safety Efforts

Fees and fines are most often evaluated by courts and criminal justice agencies, legislators, and policymakers on the basis of the revenue they generate, but they come at a great cost to the criminal justice system. When criminal courts impose fees and fines and then spend much of their resources collecting them, this leaves less to spend on true public safety needs. For example:

• When police and sheriff’s deputies are serving warrants for failure to pay fees and fines, they are less readily available to respond to 911 calls.
• When courts schedule appearances for failure to pay, proceedings for more serious crimes can be delayed or rushed.
• When community corrections officers spend much of their time reminding their clients to pay unaffordable fees and fines, they have less time to work with people to help them break the cycle of repeated contact with the criminal justice system.

These are just a few examples; there are many more ways in which criminal justice agency efforts to coerce payment translates into less time spent on more valuable criminal justice work.

Put concretely and in dollar terms, almost every cent spent on fee and fine collection is wasted as compared to collecting tax revenue. footnote7_ui8ajf5 7 The calculation is as follows: if the average cost to jurisdic- tions to collect criminal fees and fines is at least $0.34 for every $1 collected, and if it costs the IRS only $0.034 to collect a dollar of federal tax revenue, then the jurisdiction cost minus the IRS cost is $0.3366, or 99 percent of the IRS cost — the percentage of wasted resources. State tax authorities in some cases spend more or less than the IRS cost, but the argument still holds that much of the fee and fine cost represents waste or funds that could be put to better use. This is a fundamentally inefficient way to collect revenue to support courts and other criminal justice agencies, and it does not make fiscal or economic sense.

C. Almost No Time Is Spent in Court Determining Whether People Can Afford to Pay Fees and Fines

One reason that fees and fines are so inefficient as a revenue raiser is that each year millions of people are given sentences that include fines and fees they are simply unable to pay. From watching more than 1,000 court proceedings in seven jurisdictions, the authors found that judges rarely hold ability-to-pay hearings. While there are plainly up-front costs associated with such hearings, in the long run, jurisdictions would spend less money by holding them rather than trying to chase down debts that cannot be paid.

D. Jailing for Nonpayment Is Costly and Irrational

The Supreme Court has held that “punishing a person for his poverty” is unconstitutional. Still, states and localities continue to jail large numbers of indigent defendants as a sanction for unpaid criminal justice debt. Jailing people for nonpayment is by far the most expensive method of enforcing collections and generates little to no revenue making it highly uneconomical. In counties where courts incarcerate for failure to pay, the authors found that the cost of incarceration dwarfs other collections costs. For example, in Bernalillo County, New Mexico, jail costs represent as much as 98 percent of the collection costs documented by the authors. footnote8_468x9rn 8 New Mexico collections data provided at case level by New Mexico Judicial Information Division. Cost data calculated through a combination of court watching, surveys, and analysis of credits (see Appendix B: Methodology).

Further, while the full costs are unknown, they are considerable — with many jails in Texas and New Mexico reporting costs per inmate per day clustering around $55 to $65 or higher — and the costs negate or reduce much of the revenue that city, county, and state officials believe that criminal fees and fines produce.

Often when someone is unable or unwilling to pay a fee or fine, the court issues a warrant. footnote9_1r6jwdr 9 Ted Alcorn, “Handcuffed and Arrested for Not Paying a Traffic Ticket,” New York Times, May 8, 2019, https://www.nytimes/com/2019/05/08/nyregion/suspending-licenses-minor-offense-money.html. Frequently, indigent people do not appear on their court date, due to a transportation issue (they may have had their license suspended), or because they have to work, or because they fear arrest for nonpayment. In these instances, courts often issue a warrant for failure to appear, resulting in additional debt for the defendant and, in some jurisdictions, jail time. footnote10_us2y2ug 10 Ibid. Some defendents receive credit toward their debt at a state-determined per diem rate for the time they spend in custody; others incur additional debt in the form of jail fees; and some are released still owing the amount they owed before the warrant was issued. footnote11_n4nb9z6 11 See Figure 5; N.M. Stat. § 30; Fla. tit. XLVI; Tex. Penal Code. Jailing is particularly counterproductive not only because incarceration is extremely costly to jurisdictions but also because it diminishes a person’s ability to pay outstanding fees.

E. The Amount of Uncollected Debt Continues to Grow

A substantial portion of fees and fines is never collected and is likely uncollectable, meaning that these assessments are an unreliable source of government revenue that will always come up short.

No one knows how much is owed in total because few states and courts track this information — which is itself a problem requiring attention. But from 2012 to 2018, the states of Florida, New Mexico, and Texas amassed a total of almost $1.9 billion in uncollected debt. footnote12_ncw63g7 12 See Figure 3; Brennan Center calculations. And in each of the jurisdictions studied here, the amount of unpaid debt grew significantly over the period examined. Much of this debt is unlikely to ever be collected, as those with low incomes lack resources to draw on for payment.

This high level of uncollected debt demonstrates why fees and fines are such an unreliable way to raise revenue. It also hurts those who can’t pay, putting them at risk of incarceration, loss of their ability to legally drive, voter disenfranchisement, and increased difficulty in getting a job. And courts keep track of debts in perpetuity, making it all but impossible for defendants to get out from under them.

F. Jurisdictions Do Not Track Costs Related to Collecting Fees and Fines

For the most part, jurisdictions do not know how much it costs them to collect fees and fines. Of the three states studied, only Texas systematically tracks some of the costs for court collection units. But even there, the picture is incomplete. No jurisdiction tracks any of the following: the court costs for fee and fine administration, the cost to public defender systems for dealing with their clients’ fees and fines, the cost to parole and probation systems for fee and fine enforcement (whether they engage in collections or simply remind their charges constantly to pay their court debts), the cost to DMV offices processing license suspensions or state tax agencies processing offsets, and the cost to law enforcement for warrant enforcement or arrests for failure to pay or suspended driver’s licenses.

Though Texas collects some data on the costs of jailing people who fail to pay fees and fines or are allowed to earn jail credit against amounts owed, most courts and other criminal justice agencies do not track and report such costs.

G. Fees and Fines Are a Regressive Tax on the Poor

Revelations that cities like Ferguson, Missouri, collect millions in fees from poor citizens sparked a national debate in 2014 about predatory and regressive policies targeting vulnerable communities. footnote13_enhausk 13 Joseph Shapiro, “In Ferguson, Court Fines And Fees Fuel Anger,” NPR, Aug. 25., 2014, https://www.npr.org/2014/08/25/343143937/in-ferguson-court-fines-and-fees-fuel-anger. The city relied on rising municipal court fines to make up 20 percent of its $12 million operating budget in fiscal year 2013. footnote14_iz653gq 14 Department of Justice, Investigation of the Ferguson Police Department, 9, https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf But Ferguson is not alone. As detailed below, fee and fine assessments in each of the states studied amount to significant costs for the people who pass through the criminal justice system, many of whom are poor. Across the three states, billions of dollars are charged without regard to ability to pay. According to the Federal Reserve, many Americans are unable to pay an unexpected bill of $400. footnote15_wcemphr 15 Federal Reserve, “Report on the Economic Well-Being of U.S. Households in 2018,” https://www.federalreserve.gov/publications/files/2018-report-economic-well-being-us-households-201905.pdf. The fees and fines charged in these three states may well be more than what the average defendant can afford (and the noticeable growth of unpaid fee and fine debt bears this out). This is particularly so where evidence exists that policing frequently has a disproportionate impact on marginalized communities. footnote16_hhb12h7 16 Frank R. Baumgartner, Derek A. Epp, and Kelsey Shoub, “What 20 Million Traffic Stops Reveal About Policing and Race in America,” Scholars Strategy Network, June 1, 2018, https://scholars.org/brief/what-20-million-traffic-stops-reveal-about-policing-and-race-america.

Courts rely excessively on criminal fee and fine practices that are costly and inefficient, unfairly burden the poor, and do little to deter crime or improve public safety. Reforms are urgently needed.

A. States and Localities Should Eliminate Court-Imposed Fees

Courts need to be funded adequately. But even under a conservative estimate of the costs of collection, fees are an inefficient source of revenue. In addition, they fall disproportionately on the poor and create perverse incentives. And they transfer the obligation of taxpayers to fund courts to defendants in the justice system, even though the system serves society as a whole. State legislators should allocate appropriate funding to courts from their general funds and repeal legislation requiring courts to raise their own revenue by imposing fees.

B. States Should Require Courts to Assess Fines Based on Ability to Pay

The purpose of fines is to deter people from violating the law and punish those who do. But a $200 fine may represent an insurmountable obstacle to one person and a minor inconvenience to another. Charging people amounts they cannot pay is draconian. State legislatures should statutorily scale fines according to a defendant’s wealth and how much he or she earns in a day, adjusted for essential expenses and obligations such as child support. In addition to ending the disproportionate punishments given to the poor, sliding-scale fines would more effectively incentivize the wealthy to obey the law. Studies show that sliding-scale fines can increase both collection rates and total fine revenue. footnote1_xpcrjwp 1 Bureau of Justice Assistance, How to Use Structured Fines (Day Fines) as an Intermediate Sanction, U.S. Department of Justice, https://www.ncjrs.gov/pdffiles/156242.pdf. Mandating that fines are calibrated according to ability to pay would also drastically reduce the resources allocated to collections — since fines that are manageable are more likely to be paid — and reduce the burden on indigent defendants, creating a more efficient and just system.

C. Courts Should Stop the Practice of Jailing for Failure to Pay

In the three states studied here, 46 percent of fees and fines were not paid. footnote2_pigtupw 2 See Figure 3; Brennan Center calculations. Sometimes courts waive fees and fines for those unable to pay, and sometimes they offer credit for court-ordered community service. Too frequently, however, they jail people for nonpayment. footnote3_g70hlaf 3 Alcorn, “Handcuffed and Arrested.” Incarceration as a penalty for unpaid debt not only is unconstitutional but, as a practical matter, makes little economic sense. It provides no revenue benefit and is costlier for courts and taxpayers than simply forgiving the debt. footnote4_mre9d4a 4 Bannon et al., Criminal Justice Debt, 25.

D. States Should Eliminate Driver’s License Suspension for Nonpayment of Criminal Fees and Fines

This punishment, too, is counterproductive. footnote5_0h56ila 5 Texas Fair Defense Project and Texas Appleseed, Driven by Debt: How Driver’s License Suspensions for Unpaid Fines and Fees Hurt Texas Families, 2017, http://stories.texasappleseed.org/driven-by-debt. As with incarceration, suspending someone’s driver’s license makes it less likely that he or she will be able to pay the debt, as it is difficult to hold a job in most parts of the United States without access to a car. License suspension also hurts families that depend on their cars to buy groceries, transport their children to school, get medical care, and provide for other needs. Suspended license enforcement becomes a needless, costly priority for law enforcement personnel who could be deployed more effectively to prevent or respond to serious crime.

E. Courts and Agencies Should Improve Data Automation Practices

As the authors learned, many states and local jurisdictions are in the dark about the amount of criminal fees and fines that are unpaid and outstanding. In part this is the result of well-intentioned automation efforts that prioritize more recent and critical case data over older data. In other cases, as the authors found in some local courts, basic operating records and ledgers remain unautomated, making it hard to quickly collect information on caseloads, amounts owed, and amounts paid. Given the risk of arrest and other consequences for nonpayment of criminal fees and fines, courts are under an obligation to ensure that relevant data is easily retrievable and regularly updated to reflect actual amounts waived, credited, paid, and owed. Such efforts would serve policymakers as well, allowing them to more systematically assess the inefficiency of relying on fees and fines as a revenue stream.

F. States Should Pass Laws Requiring Purging of Old Balances That Are Unlikely to Be Paid

As detailed in this report, tremendous amounts of old fee and fine debt will never be collected but continue to burden millions of people. Jurisdictions are unlikely to receive revenue from arrears of any kind that go back many years, especially from those least able to pay. Financial professionals have long employed accounting methods such as “allowances for doubtful accounts” to identify uncollectible debts and assign them a value of zero for purposes of preparing financial statements. Some jurisdictions, such as San Francisco, have adopted this kind of financial practice and wiped millions of dollars in uncollected debt off the books. footnote6_9l9msd2 6 Joshua Sabatini, “SF Abolishes Abolishes Criminal Justice Fees,” San Francisco Examiner, May 22, 2018, http://www.sfexaminer.com/sf-abolishes-criminal-justice-fines-fees. Courts should more widely adopt these practices in tracking and reporting outstanding balances of criminal fees and fines, recognizing that older debts have little prospect of ever being paid. States should require courts to report on uncollected fees and fines and issue periodic waivers or adjustments in cases where significant additional payment is unlikely. In addition to providing relief to the least well-off defendants, it would free public agencies from expending resources trying to chase down uncollectible debts.

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