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Analysis

Criminal Justice Fees and Fines Don’t Work

Courts have grown more dependent on fees and fines for revenue. But enforcing them is expensive — and we don’t even know the true costs.

November 21, 2019

Over the past decade, crim­inal courts in the United States have increas­ingly imposed fees and fines on defend­ants — a prac­tice that dispro­por­tion­ately hurts people of color and low-income communit­ies. In the process, many states and local juris­dic­tions have grown more depend­ent on these fees and fines for govern­ment revenue, includ­ing to fund their court systems. But the fees and fines system is actu­ally an inef­fect­ive source of govern­ment funds, accord­ing to a new report by the Bren­nan Center. The study finds that counties were spend­ing a high propor­tion of their fee and fine revenue on collec­tion and enforce­ment costs, rather than on efforts to improve public safety.

But these find­ings do not demon­strate the full scope of the prob­lem. That’s because many of the costs asso­ci­ated with imple­ment­ing fees and fines are not being tracked at all, which leads to major gaps in the avail­able data. As a result, the true costs of the fees and fines system are likely much higher than presen­ted in the new study. Michael Crow­ley and Matthew Menen­dez, two of the report’s co-authors, spoke with Tim Lau about the implic­a­tions of the report find­ings.

This inter­view has been edited for clar­ity and length.

Tim Lau: Your report finds that much of our court system is now depend­ent on crim­inal justice fees and fines for their revenue. How did we get here?

Matthew Menen­dez: The great reces­sion was an inflec­tion point where govern­ment, partic­u­larly state and local govern­ments, really ramped up their use of fines and fees. I think there are a few reas­ons for that. One, tax and other reven­ues plummeted. It was very lean times for all kinds of govern­mental agen­cies, the courts included. And it’s very hard prac­tic­ally speak­ing for politi­cians to raise taxes, because rais­ing taxes tends to hit wealthy and more polit­ic­ally influ­en­tial people. In contrast, fees and fines dispro­por­tion­ally impact lower income communit­ies of color, people who don’t have as much influ­ence in the polit­ical system writ large.

There is some compel­ling analysis in your report on why court fees and fines are inef­fect­ive for rais­ing revenue. But you also suggest that the true costs are actu­ally much higher. Why is that? What are other costs that are worth consid­er­ing?

Michael Crow­ley: There are a number of poten­tial costs within the courts them­selves, such as the amount of hear­ing time that’s devoted to fees and fines. Courts are also involved in fee and fine admin­is­tra­tion and collec­tion. This can lead to having staff that are, in effect, the collec­tions agents of the court, who are busy send­ing out notices, making tele­phone calls, and doing a number of things to encour­age people to pay. Judges may also be spend­ing a little bit of time outside of the courtroom on fee and fine ques­tions.

There are costs asso­ci­ated with law enforce­ment, which can get involved because in many states, the court will issue a warrant for fail­ure to pay. In many places people are jailed for fail­ure to pay, which is extremely costly. Prac­tices vary by state, but parole and proba­tion agen­cies typic­ally are doing some kinds of compli­ance checks for payment of fees and fines, or they may be involved in actual collec­tions. That takes time away from agen­cies to help get their clients back on a better track.

There’s more. Depart­ments of motor vehicles get involved because they handle driver’s license suspen­sions, and this becomes a cost for the local DMV. State tax agen­cies become involved because typic­ally fail­ure to pay at some level or after some dura­tion of time will trig­ger a refer­ral of the amount that you owe to the state tax agency.

Menen­dez: Another cost that we know is out there but have made no attempt to meas­ure is the full economic oppor­tun­ity costs of these prac­tices to people’s lives. So, there’s a lot of good research show­ing that people who are jailed exper­i­ence life­time impacts on their earn­ings, that it sets you back for a life­time. And there are plenty of stor­ies out there about people who fall into this trap.

They get a bill they can’t afford, their license gets suspen­ded, they still try and work, but they have to drive to get there. So these people aren’t out actively parti­cip­at­ing in the economy the way that they would normally. They’re not going to pay the same taxes that they would normally if they were making more money. We just don’t know exactly how much. You would need a very soph­ist­ic­ated econom­ist to collect tons of data and sort of put together lots of things to meas­ure it. But we do know that, soci­etally, there are also addi­tional harms that are happen­ing. We just can’t put numbers on it.

Why is it so diffi­cult to collect data on fees and fines?

Crow­ley: There’s an account­ing concept known as activ­ity-based cost­ing that is complex to imple­ment. The basic idea is that you track the time spent on vari­ous activ­it­ies, as well as other costs, so that at the end of the day, you know what employ­ees are doing, and you know how you’re spend­ing your person­nel and other resources. Activ­ity-based cost­ing allows you to track costs across a host of categor­ies. Fail­ing that, you often have more gener­al­ized track­ing of some kind that just does­n’t drill down to the level of costs for things like fees and fines. 

We have this expans­ive enter­prise, really an assort­ment of state and local systems and agen­cies, but nobody is specific­ally track­ing and report­ing on the costs of what many differ­ent elements of this enter­prise are doing apart from very basic things like person­nel and capital expenses. So it’s very diffi­cult some­times to say, “What will we save? What do the costs look like now? What might we save under a poten­tial reform?”

What would help improve the fees and fines data collec­tion process? 

Crow­ley: In order for there to be any prospect of change, state legis­latures need to mandate basic report­ing require­ments. Without a legal mandate to report what the costs are related to fees and fines, no one’s going to do it. No juris­dic­tion is going to do it on its own. Police depart­ments aren’t going to track the officer time that’s spent on the warrants for nonpay­ment. Courts aren’t going to report on what costs they’re incur­ring for fees and fines.

Menen­dez: We didn’t spend a ton of time trying to construct what would be an ideal actual mech­an­ism to capture cost. We’re just arguing that this is worth gener­at­ing and analyz­ing data on. We came to real­ize that basic­ally nobody is even attempt­ing to capture the full costs, much less even just the in-court and law enforce­ment costs.

Another reason people should care about this issue is that if courts are spend­ing time collect­ing fees, they’re not spend­ing that time decid­ing cases. If police and sher­iffs are bring­ing in people on warrants just because they could­n’t pay a fee or fine, they’re not actu­ally doing anything to advance public safety. It gets worse as you go down to lower and lower levels of court and smal­ler juris­dic­tions, because they are gener­ally more reli­ant on fee and fine revenue. So, in order for them to continue to keep the lights on and meet payroll, they have to keep churn­ing enough fees and fines to do so. And that’s just not the point what­so­ever of the crim­inal justice system. The distort­ing incent­ive should really worry us.

What are your recom­mend­a­tions for future research on fees and fines?

Crow­ley: We were partly success­ful in our research by trav­el­ing to many of the counties we stud­ied. We found that just by being there, you often could find court clerks or public defend­ers or other folks that would be will­ing to talk with you. But I think there’s a strong possib­il­ity that future research­ers could go far deeper than we were able to. But of course, it’s expens­ive to field teams and place people on the ground in vari­ous places. Collect­ing data is diffi­cult to do in any reas­on­ably compre­hens­ive fash­ion.

Menen­dez: I agree. A lot of this won’t be easy data to get, even if you’re on loca­tion. Ulti­mately, though, we are excited that more people are going to keep trying to research crim­inal justice fees and fines. We think that this report is a really good start, and I think we were partic­u­larly success­ful in determ­in­ing that very little time was spent in court actu­ally making sure that people were able to pay the fees and the fines that were assessed on them. That’s very troub­ling.

Read the full Bren­nan Center report, The Steep Costs of Crim­inal Justice Fees and Fines.