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Harvard Law School Report Highlights Ill Effects of Criminal Justice Fees

by Derek Gilna

In September 2016, Harvard Law School published a report titled “Confronting Criminal Justice Debt: A Guide for Policy Reform,” which questioned the moral justification of a criminal justice system that relies on fees extracted from mostly-indigent defendants to function.

As noted in the report, “Monetary sanctions often serve purposes that have nothing to do with advancing the values typically associated with criminal justice. Although fines are designed to act as punishment or a deterrent, fees do not advance the traditional purposes of the criminal justice system.”

Instead, criminal justice “user fees,” as distinguished from fines, are more effective at perversely preventing defendants from successfully putting their lives in order, maintaining employment and supporting their families. As indicated by a recent U.S. Department of Justice investigation into Ferguson, Missouri’s fee-based court system, the weight of criminal justice debt falls disproportionately on the poor and people of color, and perpetuates a cycle of recidivism when the fees go unpaid. [See: PLN, Dec. 2016, p.54].

The Harvard report further noted that in Ferguson, such “policing practices and routine courtroom procedures led African Americans to face higher fines, more warrants for failing to pay criminal justice debt and greater exposure to the criminal justice system.” The problem, however, is more widespread than Ferguson.

The report also criticized the assumption that the criminal justice system’s operating costs can be satisfied by user fees, and concluded that any benefits from the funds collected are “illusory.” For example, when defendants are jailed because they can’t afford to pay the fees, taxpayers must fund the cost of their incarceration.

“Most states do not collect data on criminal justice debt at all, [and] they only look at the amount of revenue collected without measuring the cost of collection or the burdens on the justice system that follow from aggressive enforcement of criminal justice debt,” according to the report.

The authors made the following recommendations with respect to criminal justice user fees: policymakers should consider conflicts of interest within the justice system, the trap of poverty penalties, ability-to-pay determinations, and increased transparency and accountability. It is hard to argue that a justice system forced to collect excessive fees to fund its operations “distorts outcomes and undermines the public’s faith” in that system, as it generally ensnares defendants in a “cycle of poverty and indebtedness.”

Further, courts must consider an individual defendant’s ability to pay “before depriving them of liberty for non-payment,” and thereby unnecessarily increasing the costs to the justice system. Finally, improved data collection for criminal justice fees is needed to help ensure that policymakers realize the assessment and collection of such fees generally fall on indigent defendants who are the least able to afford them.