Cross-posted on the American Constitution Society Blog
Many jurisdictions are dependent on municipal and judicial fines to fund prosecutors, public defenders, clerks and courts. The Justice Department’s March 2015 report on practices in Ferguson, Mo. is a telling example. Ferguson police and courts, the report found, operated, “not with the primary goal of administering justice or protecting the rights of the accused, but of maximizing revenue.” Soon after the report’s release, Ferguson’s police chief, municipal judge and city manager all stepped down. Such practices are not limited to Ferguson as cash strapped cities and states turn ever increasingly towards low-income individuals to fund the criminal justice system.
In fact, an estimated 10 million people owe more than $50 billion in debt as a result of their involvement in the criminal justice system. How did this happen? Well, one reason is that as the country’s criminal justice costs skyrocketed, and the burden to fund the system fell on the system’s users. As noted in a recent Brennan Center report, the country’s criminal justice costs — mostly policing, jails, prisons and courts — rose from $35 billion in 1982 to more than $265 billion in 2012 — a growth of over 650 percent. It’s worth noting that at least 80 percent of state court defendants are indigent, and cannot afford to pay for their own lawyers. Nonetheless, fees are imposed for a wide range of services, including courts, jails, prisons and diversion and probation programs. In Florida, for example, it costs $50 to apply for a public defender if one is charged with a misdemeanor and $100 for a felony.
States and local governments are crafting creative solutions to reduce the burden of criminal justice debt on its citizens.
To help alleviate the problem of imposing fees and fines that will never be collected, and to clear out their backlogs of warrants, some courts have adopted amnesty programs for low-level offenses. Defendants show up for court, and their fines and fees are forgiven or significantly reduced.
The latest to adopt this approach is Brooklyn District Attorney Ken Thompson. The borough has more than 200,000 residents with outstanding warrants for low-level citations, such as drinking alcohol in public or remaining in a park after dark. Held at churches on weekends in June and September, with a judge and Legal Aid attorneys present, the program hasvacated more than 1,300 warrants with no arrests.
California just began an amnesty program for traffic tickets that runs through March 2017. Drivers with unpaid tickets for infractions such as: having a broken tail light, running a stop sign, or driving through a red light, can have their late fees waived and their fines cut at least in half. Due to increased fees and fines and reduced access to the courts, more than four million Californians have suspended drivers licenses, according to a report by the Western Center on Law and Poverty. But, the program has its flaws. It is primarily focused on raising revenue (much of the money will go toward criminal justice programs such as training for law enforcement) and doesn’t reorient resources to ensure that fines and fees don’t continue to support the state’s justice system. Additionally, while millions of Californians – if they participate in this amnesty program – are eligible to win back their driver’s license, the practice of suspending it for unpaid fees was not abolished.
The Municipal Court of Atlanta ran an eight-week amnesty program earlier this year in an attempt to resolve the cases of some 90,000 people with open warrants issued before November 2014. For the 2,000 people who took advantage of the program, their warrants were resolved and many fees were waived, allowing the court to trim its backlog, and defendants to clear their cases.
And, while only one day, the Tucson City Court in Arizona held a “warrant day” – not to be confused with an amnesty day – on a Saturday this past August to reduce the city’s backlog of 40,000 warrants, most of which were issued as a result of failure to appear in court. The one day program aimed to facilitate plea deals with these defendants, and prosecutors, public defenders, and judges were on hand to resolve the cases. Still, such a program can save the city money by not having small-time offenders go to the county jail, which costs $85 per day.210 defendants took advantage of the “warrant day.”
Other amnesty programs were held this year in Ridgeland, Miss.; DeSoto, Texas; and Jacksonville, Ark., among others.
In the wake of the cash-register style of justice in Ferguson, Mo., the Missouri state legislature passed a significant overhaul of the state’s municipal courts. The new law limits fines, bans additional charges for failure to appear when a defendant does not show up to court, and perhaps most significantly, makes it illegal for a judge to send someone to jail for not paying fines. The law also lowers the ceiling on general operating revenue municipalities can raise from traffic fines from 30 percent to 20 percent. St. Louis County and its municipalities, including Ferguson, face an even lower cap of 12.5 percent. While seen as a step in the right direction by many who want to change the predatory revenue-generating practices of Missouri’s cities and towns, neither the legislature nor the governor have proposed new sources of revenue for the money that will be lost under the new regime.
Other states have made reforms that educate judges, a step some say goes to the heart of the issue. After an ACLU report in Ohio revealed the practice of sending indigent defendants to jail without an ability-to-pay hearing – one that is required by the U.S. Supreme Court – the state Supreme Court’s Chief Justice worked with other judges to issue a bench card. The bench card is essentially a piece of paper that judges can keep on their desk that lists options other than jail for failing to pay a fine, such as ordering a defendant to community service or holding an ability-to-pay hearing. And, the ACLU filed a lawsuit earlier this year in DeKalb County (Atlanta) that resulted in a settlement requiring a similar bench card to be used by some judges.
These reforms are certainly a step forward, but the hard work is just beginning. To ensure that another generation of citizens is not subject to onerous user fees for being caught in the maze of the criminal justice system, policymakers, judges and those who work within the criminal justice system need to champion change. Some cocktail of judicial education, more consistent government funding for criminal justice agencies, increased ability for poor defendants to waive fees, increased community service options, and perhaps even some sort of sliding scale system would be more effective and less expensive solutions to criminal justice debt than incarcerating the indigent.