Feds Focus on Fines and Fees

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The U.S. Department of Justice recently issued a letter regarding its “strong interest” in putting a stop to unconstitutional court fines and fees that target the poor. According to the authors, Vanita Gupta, Principal Deputy Assistant Attorney General of the Civil Rights Department, and Lisa Foster, Director of the Office for Access to Justice, “[T]he harm caused by unlawful practices . . . can be profound. Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no danger to the community; lose their jobs; and become trapped in cycles of poverty that can be nearly impossible to escape.” The DOJ sent the letter to judges and court administrators in all fifty states on March 14, 2016, directing them to review their procedures on imposing and enforcing fines and fees. An article from the New York Times states that the DOJ rarely issues “Dear colleague” letters of this sort; the last one went out in 2010 and concerned the need to provide interpreters for people who don’t speak English.

The DOJ names seven “basic constitutional principles” relevant to the enforcement of fines and fees:

(1) courts must not incarcerate a person for nonpayment of fines or fees without first conducting an indigency determination and establishing that the failure to pay was willful;

(2) courts must consider alternatives to incarceration for indigent defendants unable to pay fines and fees;

(3) courts must not condition access to a judicial hearing on the prepayment of fines or fees;

(4) courts must provide meaningful notice and, in appropriate cases, counsel, when enforcing fines and fees;

(5) courts must not use arrest warrants or license suspensions as a means of coercing the payment of court debt when individuals have not been afforded constitutionally adequate procedural protections;

(6) courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release; and

(7) courts must safeguard against unconstitutional practices by court staff and private contractors.

In a press release, the DOJ also announced a $2.5 million grant program to help agencies restructure the way they assess and enforce fines and fees. In conjunction with the announcement, Attorney General Loretta Lynch expressed concerns about “the criminalization of poverty” and said that one of her top priorities “is to help repair community trust where it has frayed, and a key part of that effort includes ensuring that our legal system serves every American faithfully and fairly, regardless of their economic status.”

Should North Carolina court actors be concerned with the DOJ letter, or is it meant for some other states that have been bad actors? North Carolina is not named as one of the states that has come under recent scrutiny. See footnote 1 of the letter. In a previous post, my colleague Shea Denning described North Carolina’s uniform court system and the fines and forfeitures clause of our state constitution, which protect against the corruption that can occur when police officers and judges stand to profit from court fees, a practice that the DOJ recently condemned following an investigation of the police department in Ferguson, Missouri.

Members of the indigent defense bar have expressed concern, however, about a rise in criminal court costs as well as the number and amount of fees in North Carolina and the incarceration of clients who are too poor to pay. David Clark, Senior Assistant Public Defender in Guilford County, and Wake Forest Law Student Kevin Murtagh describe some of the fees in this article, the first in a series:

The minimum costs in District Court for infractions and misdemeanors are $178.00 and $180.00 respectively. In Superior Court they are $205.00. If a defendant makes a first appearance in District Court and the rest of her case is handled in Superior Court, she is charged both District and Superior Court fees, resulting in a total minimum cost of $352.50. . . .[T]here are dozens of other criminal fees that can raise a defendant’s debt burden substantially. These include a $60.00 non-waivable Appointment of Counsel Fee for Indigent Defendants, a Community Service Supervision Fee of $250.00, and a Probation Supervision Fee of $40.00 per month.

The authors also discuss the impact of requiring payment for diversion programs such as first offender and community service programs. A person able to pay to participate receives a dismissal upon successfully completing a diversion program, while a person who cannot pay is saddled with a criminal record and possible jail time. They also describe consequences from the inability to pay fees, such as damage to credit scores that may affect the ability to obtain housing.

In a second article, the authors describe the difficulty of collecting costs and fees from indigent defendants. A briefing paper by the Council of Economic Advisers and study by the Brennan Center for Justice have found that the financial expenditures in collecting unpaid costs and fees, in the form of court hearings, incarceration, and civil proceedings, often exceed the amount collected.

In short, the DOJ letter raises important issues about the impact and effectiveness of court fees in criminal cases, and is garnering attention in North Carolina and around the country. What is your view on North Carolina’s practices and how they line up with the principles set out in the DOJ letter?

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9 comments on “Feds Focus on Fines and Fees

  1. I disagree 100% with DOJ’s assessment. this is making something political that is not a political issue. all government services cost money. the government does not have the ability to raise money except by taxes and fees. if individuals are excused from paying, then who pays and what message does that send to those who violate the law? Don’t worry if you get caught, they won’t send you to jail and you won’t have to pay for any probation or community service, so go ahead crime does pay. The taxpayers should not be footing the bill.

    • Mr. Little, most of these offenses mentioned in this article are not criminalized under state law, but are under local ordinances for the purpose of extracting an additional civil judgment in lieu of raising property taxes. Therefore, it is property owners who are not paying their fair share to support government functions. Those receiving civil infractions are paying up to three times the state law amount and a large portion of the fines/fees go to private corporations such as MADD even when no alcohol offense is involved. In short, these fines/fees are nothing more than padding a profit for private corporations and retirement accounts of third party contract. Local court fees generally are $30. The rest goes in the pockets of prosecutors, judges and police, not to the state to support any other program. People are incarcerated for no other reason than for some judge to make $95,000 a year while those targeted are destined to eat out of a garbage can for the rest of their lives. Educate yourself, please.

    • So what about innocent people who have to plead to a crime they didn’t committ because there in jail on bond they can’t pay so you plead to get out and hopefully get your job back or find one quick like me lost job had to pay 600 and 100% not guilty

  2. For me and my clients, it is the bail money. Clients who are not a flight risk and who do not pose a threat are routinely given high bail which if done through a bondsman , they will never get back. It is a pointless relic of the past and we should re visit it!

  3. It all ‘looks good’ in writing, but like many other ‘written’ laws, rules, regulations, and policies this most likely won’t be the practice. It seems as if the rights of the people allegedly ‘secured’ in writing as our fundamental laws is a lot of wasted time paper and ink. It seems we are governed by lex non scripta, and not the lex scripta which is put forward as the Laws of this Land.

    It all seems to be a hoax to give the people a false sense of security in their persons, places and effects, against unreasonable intrusions into lives and liberty.

  4. I would love to see IDS get into this issue a lot more. The new(er) system of recouping appointed attorney fees has some troubling aspects. First, the defendant is charged by the number of hours the attorney has worked on the case. The attorney is not paid by the hour by the state, however, so this is not a true (honest) recoupment. Second, the bench (overall) seems uncomfortable remitting fees and striking fines that they have the inherent power to do. People often get their probations extended because they still owe money that they can’t pay. When the court makes a finding of indigency at the very beginning of the case, that should usually still be significant at the end of the case too. We should be able to ask that the appointed fees be stricken and that the attorney’s fees be remitted as well when we can make a showing that the defendant does not have the means to meet the financial obligation. When we are denied, we should probably all start demanding ability to pay hearings. It is also worrisome to have a statutory scheme that writes so much of the issue out of the way — what is a non-waiveable fee? That’s a ridiculous concept really. I think a prudent bench officer could waive it anyway in the right cases. I don’t see how the legislature gets to skip financial ability issues in their criminal procedure statutes, but they are heavily slanted against the poor. Don’t even get me started on the bond culture here. Holy moley

  5. Oh, and thank you for blogging on this topic! forgot to mention that

  6. Never steal more than you can afford to pay back.

  7. I live in Benton County Washington State and have had many proceedings in Superior Court and never have I seen a $60.00 attorney fee. It has always been $600.00. And I know there has not been $600.00 worth of work done on my behalf. They talk with you five minutes before court and then it just gets continued for about a year with monthly court hearings. And then in the end they want you to plead guilty. So you do and then the sentencing comes into play. For a first offense the fine is $1000.00 plus court costs and attorney’s fees and DNA sample fee and depending on if you go to prison or county jail they will try to charge you by the day for getting to stay at their lovely facility. And if you get in trouble again the fine goes up $1000.00 for each one thereafter. And then when you get released and are put on a monthly payment plan of $50.00 a month. Now add in the monthly interest of $35.00 (for me) and their yearly $100.00 service fee and any and all payments that you have made, with only $15.00 going toward your actual fine has now just been voided out by adding that yearly fee in. I have been paying for six years faithfully every month and my bill is higher now than when I started. That’s the tip of the ice berg and I could go on but I won’t. But I have done my time and have been paying my fine but it never goes down or away. I don’t see the justice in this. I think this county needs some serious checks and balances.

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