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Fair Courts E-Lert: New Brennan Center Report – The Steep Costs of Criminal Justice Fees and Fines

This week’s Fair Courts E-Lert highlights a new Brennan Center Report on Criminal Justice Fees and Fines, the Oregon Supreme Court’s New Rule Limiting ICE Courthouse Arrests, and more.

Published: November 22, 2019


Brennan Center Releases Report, The Steep Costs of Criminal Justice Fees and Fines

On November 21, the Brennan Center for Justice released a first-of-its-kind report, The Steep Costs of Criminal Justice Fees and Fines: A Fiscal Analysis of Three States and Ten Counties , revealing that court-imposed fees and fines thwart rehabilitation, fail to make communities safer, and are an insufficient source of government revenue.

The Brennan Center’s report analyzes ten counties within Florida, New Mexico and Texas, as well as statewide data for those three states. Among the report’s key recommendations are: (1) states and localities should pass legislation to eliminate court fees imposed to fund the government; (2) states should institute a sliding scale when assessing fines based on ability to pay; (3) courts should stop jailing individuals for their failure to pay court-imposed fees; and (4) states should stop suspending driver’s licenses for people who are unable to pay their fees and fines.

The release of the Brennan Center’s report follows the U.S. Supreme Court’s unanimous ruling in Timbs v. Indiana that the Eighth Amendment’s prohibition of excessive fines applies to state governments as well. On remand, the Indiana Supreme Court determined that the state’s seizure of Timbs’s vehicle was a fine. The Brennan Center and others filed a friend-of-the-court brief in Timbs, which argued that civil asset forfeiture is a violation of the Eighth Amendment.

Oregon Supreme Court Issues Rule to Limit ICE Courthouse Arrests

On November 14, Oregon Supreme Court Chief Justice Martha Walters issued a new rule prohibiting civil arrests in or around the state’s courthouses unless a judge has signed an arrest warrant.

“The rule was adopted following a request to prohibit U.S. Immigration and Customs Enforcement (ICE) agents from making arrests in courthouses acting only on their own administrative warrants,” according to the chief justice’s press release. However, ICE has pushed back against the new rule, stating, “Despite any attempts to prevent ICE officers from doing their jobs, ICE will continue to carry out its mission to uphold public safety and enforce immigration law, and consider carefully whether to refer those who obstruct our lawful enforcement efforts for criminal prosecution.”

“Oregon is the third state, after New York and New Jersey, to issue a statewide court rule,” according to Oregon Public Broadcasting. The state’s new rule also follows a series of lawsuits in New York and Massachusetts against ICE for their arrests in courthouses. Last year, the Brennan Center also worked with 75 former state and federal judges to send a letter to ICE’s acting director Ronald Vitiello, denouncing the agency’s courthouse enforcement activities.

California High Court to Decide if Judges Can Speak Publicly About Their Decisions on the Bench

Last week, the California Supreme Court announced that it will be seeking public comment on a proposed exception to the judicial ethics rules that would allow a judge to “comment publicly about a pending case that formed the basis of criticism of a judge during an election or recall campaign, provided the comment would not reasonably be expected to affect the outcome or impair the fairness of the proceeding.” Currently, judges are not permitted to speak openly about pending cases under the California Judicial Code of Ethics. The proposed exception is “in response to increasing attacks on judicial independence in an age of widespread social media vitriol,” Courthouse News Service reports.

While presenting at a symposium hosted by the Alliance of California Judges, Heather Rosing, the outgoing president of the California Lawyers Association, called on bar associations to “step up and educate on the independence of the judiciary and assist judges when they are subject to unfair attacks,” according to Courthouse News Service. “This lack of information makes judges subject to attack … we are indeed in troubling times and if we don’t take decisive action, it’s going to get worse,” she said.

One notable example of a judge who faced public criticism because of a decision they made while on the bench is Judge Aaron Persky, who was recalled last year by California voters over his sentencing of convicted rapist Brock Turner. Persky sentenced Turner to six months in jail for sexually assaulting an unconscious woman, author and artist Chanel Miller. The maximum sentence for Turner was 14 years.

Federal Judge Denounces Trump’s Attacks on the Federal Judiciary

Two weeks ago, U.S. District Judge Paul Friedman of the District of Columbia denounced President Trump’s attitude towards the federal judiciary during a speech at the annual Judge Thomas A. Flannery Lecture. “We are witnessing a chief executive who criticizes virtually every judicial decision that doesn’t go his way and denigrates judges who rule against him, sometimes in very personal terms,” he said. “[Trump] seems to view the courts and the justice system as obstacles to be attacked and undermined, not as a coequal branch to be respected even when he disagrees with its decisions."

In his remarks, Judge Friedman noted several of Trump’s personal attacks on judges, including U.S. District Judge Gonzalo Curiel (who Trump called “a hater of Donald Trump”), U.S. District Judge James Robart (described by the President as a “so-called judge”), and U.S. District Judge Jon Tigar (dismissed by Trump as “an Obama judge”). Friedman also noted Trump’s responses to decisions he disagreed with, attacking judicial decisions as the “tyranny of the judiciary” and a “gift to the criminal and cartel element in our country.” The Brennan Center has documented Trump’s attacks on the courts.