Americans are increasingly recognizing the unfairness and flaws in the current criminal justice system and many states are considering needed reforms to policing, criminal penalties, and incarceration practices. Reducing the burden that today’s unnecessary monetary penalties impose upon people in the criminal justice system is one of those reforms that could help improve equity, reentry outcomes, and more.
A 2020 nationwide poll of U.S. voters conducted by FM3 Researchers regarding fines and fees in the criminal justice system revealed that four in five voters support reducing or replacing fines for minor violations of the law with alternatives like community service, drug treatment, and job training.
Fines and fees are often discussed interchangeably, but their purposes and legal implications differ. Fees are generally used to cover operational costs in the criminal justice system. Meanwhile, fines are imposed upon convictions and are primarily intended to deter and punish crime. Both have an inordinate impact on low-income individuals, but fees raise additional concerns regarding the right to due process.
In the case of fees, governments claim, that when paying a fee, individuals are not paying for punishment or retribution, but are instead paying for costs incurred during their trial. State and local governments often impose “user fees,” which charge individuals for the cost of their prosecution, such as cost of counsel, supervision fees, or drug testing fees. These fees are usually the same—regardless of the crime committed.
When individuals are unable to pay these fees in a timely manner, they can face additional “poverty fees” in the form of additional late fees, collection fees, and payment plan fees. Some states even suspend driver licenses as a punishment for unpaid court fees, making it even more difficult for individuals to maintain employment, pay outstanding fees, and reintegrate into society.
A report from the Brennan Center for Justice examined the use of fees in the 15 states with the highest prison populations. The report found that all 15 states had recently increased the number and dollar value of criminal justice fees, increasing their financial burden over time. Such fee increases are often motivated by a desire to raise revenues, but as the authors note, “no one is considering the ways in which the resulting debt can undermine reentry prospects, pave the way back to prison or jail, and result in yet more costs to the public.”
Fines, on the other hand, are meant to deter crime and directly punish individuals. Fines are usually set in statute and vary depending on the crime for which an individual is convicted. Such fines are usually reserved for less serious crimes and non-violent offenses.
While judges sometimes have the ability to adjust the value of the fine, they rarely do it. As a result, individuals are often incarcerated because they are unable to pay fines for minor driving offenses. This is despite a Supreme Court ruling in 1983 that determined imprisonment for an inability to pay fines unconstitutional.
There are many alternatives to the current system of fines, such as income-based fines or ability-to-pay assessments. Income-based fines, also known as “day fines”, scale the price of the fine proportional to a person’s income. This increases the equity of monetary penalties and serves to discourage all people from committing crimes, regardless of their income. There are three main ability-to-pay assessments used to evaluate the extent of the financial burden a fine would create on individuals. Affidavits are self-reported documents that allow individuals to provide specific financial information to assess their financial situation and bench cards are documents that outline the thought process judges should use to determine a person’s ability to pay. The steps could include reminders about guiding principles, reminders of their responsibility, and the opportunity to use discretion when determining the cost of the fine. Ability-to-pay calculators are often web-based platforms that use an algorithm to analyze financial information.
Both fines and fees disproportionately affect low-income communities. A survey of almost 1,000 residents from 41 counties in Alabama found that 83 percent of people had given up necessities like rent, food, medical bills, car payments, and child support, to pay their court debt. Their economic stability, employment status, mobility, civic engagement, and liberty were significantly disrupted due to fines, fees, and court costs.
At the moment, very few states take into account a person’s ability to pay a fine or fee, resulting in high rates of incarceration and debt, as $25 billion of criminal justice debt is owed by millions of people.
Fortunately, lawmakers in several states are beginning to recognize the need for reform.
Massachusetts and New Mexico have recently considered legislation that would require judges to take a person’s ability to pay into account. These reforms would help mitigate the disproportionate effect fines and fees have on low-income communities.
A report by Juvenile Law Center found that 57 percent of surveyed participants reported that inability to pay had prevented the expungement of a juvenile record. Repealing provisions that are financially burdening young people and their families would allow them to move past their incarceration.
Currently, millions of people are negatively impacted because of institutional financial incentives associated with the criminal justice system’s fines and fees. When individuals are unable to pay these charges, it results in extended probation, increased debt, or incarceration.
Ultimately, the criminal justice system’s unfair fines and fees create a cycle of punishment on top of punishment. States have the opportunity to implement long-lasting and impactful criminal justice reforms by seeking alternatives to traditional fines and fees.