Debt Free Justice California-Civil Assessments-The Hidden Court Fee That Penalizes Poverty, March 2022
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March 2022 [FL: Debt Free Justice California IDDE FEES ■ c:::::=::::===:::::::i ■ c:::::==:::::::i CIVIL ASSESSMENTS: The Hidden Court Fee that Penalizes Poverty Acknowledgements Contributors Lawyers’ Committee for Civil Rights of the San Francisco Bay Area Legal Director, Elisa Della-Piana East Bay Community Law Center Staff Attorney, Shazzy Kamali Western Center on Law & Poverty Director of Policy Advocacy, Mike Herald Lawyers’ Committee for Civil Rights of the San Francisco Bay Area Equal Justice Works Fellow, Rio Scharf Berkeley Law School Policy Advocacy Clinic Clinic Teaching Fellow, Maiya Zwerling Berkeley Law School Policy Advocacy Clinic Deputy Director, Stephanie Campos-Bui San Francisco Financial Justice Project Director, Anne Stuhldreher Lawyers’ Committee for Civil Rights of the San Francisco Bay Area Senior Communications Manager, Sam Lew San Francisco Financial Justice Project Policy Analyst, Michelle Lau East Bay Community Law Center Staff Attorney, Candy Smallwood American Civil Liberties Union of Northern California Director of Racial and Economic Justice, Brandon Greene Insight Center for Community Economic Development Senior Associate, Natasha Hicks Western Center on Law & Poverty Senior Litigator, Rebecca Miller Special thanks to all the clients, volunteers, and advocates who shared their stories with us and the Debt Free Justice California Coalition (DFJC), a multi-regional California-based coalition focused on putting a stop to the unfair ways the criminal legal system drains wealth from vulnerable communities. Much gratitude to Arnold Ventures for its grant to the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, for making this report possible. The views expressed in this report are those of the authors and do not necessarily reflect the views of the funder. Berkeley Law THE FINANCIAL JUSTICE PROJECT S Policy Advocacy Clinic II Aa.U AIIIERICANCIVllllBERTlfSUNIQN Northern California A N F R A N C I S C 0 f -~/ WESTERN CENTER ON LAW & POVERTY f\ Insight V Center Table of Contents Executive Summary 4 What is a Civil Assessment? 6 New Data: 2021-2022 Survey 9 Civil Assessments Harm Californians 9 Civil Assessments Do Not Promote Timely Payments or Appearances 10 Civil Assessments Disproportionately Affect Black and Brown Californians 12 Civil Assessments Pose a Conflict of Interest for Courts 14 Most Civil Assessments are Uncollectible 16 Proven Front-End Tools Make It Easier for People to Resolve Tickets 17 Recommendations 18 Conclusion 18 Endnotes 19 EXECUTIVE SUMMARY A civil assessment is a type of poverty penalty charged to people who miss a deadline to pay or appear in court. One of the highest and most common fees in California, it is a $300 hidden fee charged to people in cases involving anything from a traffic ticket to a felony. For many people, this can exponentially increase the amount they owe. For example, the addition of a civil assessment and administrative fees can take a $35 base fine for running a stop sign and increase it by over 850 percent. Policy decisions about this hidden fee have been made with very little data about how it affects Californians, or whether it serves a purpose. For example, many policymakers believe civil assessments are most often given for “failure to appear,” but courts issue more than 80 percent of these fees in traffic or infraction cases where no court appearance is required. An estimated 300,000 people get civil assessments each year, primarily as a punishment for not paying with money they do not have. To understand the actual impact of this hidden fee, the Debt Free Justice California Coalition conducted surveys with more than 200 people with recent traffic citations. This new data is released for the first time in this report. The survey results speak powerfully to the problems and limitations of civil assessments. The survey shows that civil assessments are not acting as a deterrent: three out of four people did not even know the fees existed. The data shows that paying off civil assessments comes at the expense of everyday needs—rent, food, and utilities—for the vast majority of people who are charged this hidden fee. The survey also provides insight into why the civil assessment largely fails to induce people to resolve their citations, with evidence that the actual cause of most people’s inability to pay or come to court is lack of money, or other circumstances beyond their control. The key findings from the survey and accompanying research are: •C ivil assessments simply do not work. There is no evidence that charging $300 induces people to appear or pay a ticket. Survey results show that 73 percent of respondents were not even aware that they could receive a $300 fee for missing a deadline to pay or appear in court. When asked what kind of punishment would most incentivize them to make timely payments and appearances, a plurality of survey respondents (38 percent) chose, “Nothing. I simply cannot afford to pay.” Remaining respondents said partial debt relief, alternatives to payment, or text reminders would help much more than punitive fees. Both the lack of awareness of the $300 fee and 4 people’s inability to afford even the original citation fees suggest that civil assessments do not and cannot play an important role in ensuring payment or appearance. • M ost people cannot afford to pay civil assessments. Of those surveyed, 68 percent could not afford to pay the $300 hidden fee. If people had to pay an additional $300 on top of fines and fees for the original ticket, 86 percent said it would affect their ability to pay for food, 75 percent said utilities, and 65 percent said rent. For the many who can’t afford to pay, civil assessments are a source of debt, instability, and anxiety. •B lack and Brown Californians bear the brunt of civil assessments. Black and Brown Californians are more likely to be pulled over, and more likely to be ticketed. One California study found that Black people made up just 7 percent of the population, but over 16 percent of all stops. Previous studies also have shown that households of color are twice as likely as white households to lack adequate income to meet their basic needs. As they are given a disproportionate share of tickets, and more often stopped without cause, Black and Brown people are disproportionately punished by high add-on fees like the civil assessment. •C ourts financially benefit from civil assessment revenue, which creates a troubling conflict of interest. Unlike other citation fees, courts get to keep a significant portion of the revenue from civil assessments. Courts directly benefit from imposing There is evidence that alternatives to the civil assessment are equally or more effective at causing people to pay or appear by the deadline. Common sense, non-punitive practices like text message reminders have proven effective in other states at getting people to resolve cases. Californians are eager for local courts to begin employing similar measures; 44 percent of survey respondents requested that courts begin offering text reminders. Other studies show that when we get rid of extreme penalties, like high fines or suspending driver’s licenses for nonpayment, people are more likely to pay. Even if there was evidence that punitive measures work, there are other so-called “sticks” besides civil assessments in the current system: people who do not pay can have their employer contacted and their wages garnished, lose their tax return, or have money taken directly out of their bank 5 civil assessments, whether they are appropriate or not. In fact, though the legislature passed a statute requiring discretion in assessing the fee “up to $300,” 88 percent of courts surveyed use $300 as the default amount to be imposed in every case. In fiscal year 2019-20, California courts collectively received more than $96 million in revenue from civil assessments. More than $54 million of those collections were retained by the courts and this revenue often constitutes a substantial portion of many courts’ annual budgets. This conflict of interest is one reason why ability-to-pay programs are not a solution. In one county, after 18 months of implementing ability-to-pay, the court imposed the full $300 civil assessment in 97 percent of cases where the court found the person could not afford to pay, while reducing or eliminating the fines and fees that did not benefit the court. account. And incentivizing court appearances is unnecessary: in traffic and infraction cases, where the vast majority of civil assessments are given, people need not ever appear, because courts can and do decide cases without the person present, using trial in absentia statutes. We must repeal civil assessments. They are ineffective and exacerbate the disproportionate punishment of Black and Brown Californians. Rather than rely on extreme back-end penalties that do not work and drive people into debt, our system of justice should invest in proven front-end tools that make it easier for people to pay or appear. $ What is a Civil Assessment? Stephanie Jeffcoat was living in a tent in Anaheim in 2019. One day, while crossing the street, she was cited for jaywalking. When she could not afford to pay the ticket, the court charged her a $300 fee, which more than doubled the cost. This $300 fee, called the civil assessment, is imposed against defendants who, like Stephanie, miss a court appearance or payment deadline. Civil assessments, though imposed against at least 300,000 people each year,1 and possibly as many as one million people each year,2 remain unknown to most Californians. Stephanie didn’t know that she would be charged $300 for her inability to pay her citation. It quickly became a terrible weight. Through many recent accomplishments— landing a non-profit job, remaining sober, and attending school full-time while caring for her daughter—she continued to carry this court debt. Aware of the fact that such debts can lead to wage garnishments, tax intercepts, and bank levies, for years Stephanie worried that the civil assessment would impede her narrow path to financial stability. sign, or even hitchhiking, biking outside the bike lane, or forgetting to report a change of address to the DMV. By law, courts have the discretion to charge any amount from $0 to $300. They do not use it. The vast majority of courts uniformly charge the maximum amount.3 Most often, a computer system issues notice that the person owes an additional $300, and it is never reviewed by a judge. Of the forty California courts that responded to public records requests, thirty-five courts had this default practice of setting the civil assessment at the maximum $300.4 Stephanie’s story exemplifies the harm caused by civil assessments. This harsh fee tends to punish people for circumstances that are beyond their control and straddle them with debt that can last for years. Since Black and Brown families are more likely to be pulled over, it contributes to inequality and taxes the people who can least afford it. Considering that California’s traffic tickets are already the highest in the nation,5 the courts’ imposition of additional $300 hidden fees has the effect of making a bad situation worse. Civil assessments increase people’s court balances beyond the point that they can bear to pay. A $300 civil assessment for not paying the fine in a jaywalking case, for example, results in a late fee that is 1,200 percent larger than the base fine for jaywalking.6 Making matters worse, some courts impose multiple civil assessments in a single case, resulting in up to $600 in late fees on top of the original amount owed.7 The California Judicial Council itself, in a 2017 Futures Commission report, found that this practice “exacerbates the cycle of debt and may decrease [a person’s] ability to pay the full amount owed.”8 Yet nothing has changed. California Penal Code section 1214.1 establishes the civil assessment: “in addition to … other penalt[ies] . . . the court may impose a civil assessment of up to three hundred dollars ($300)” against a person who does not pay any part of a fine, or appear in court. It can be imposed if the offense was anything from an infraction to a felony, but the vast majority are assessed in the most minor cases, like jaywalking, rolling through a stop Every year, California courts process over 3.2 million infractions.9 By some estimates, courts tack on a civil assessment to one in three of those, making the civil assessment one of the highest-impact fees in the state.10 For those who are able to pay their traffic tickets, the assessment is avoidable, or at worst, an inconvenient price for forgetting to pay. But for the many who can’t afford it, civil assessments are a source of debt, instability, and anxiety. 6 Civil Assessments: The Hidden Court Fee that Penalizes Poverty California’s $300 hidden fees are exorbitant by any standard, especially when compared to similar fees in other jurisdictions. In Florida, for instance, late payments can lead to $16 fees as well as a collections charge of up to 40 percent of the original amount due.11 In Delaware, when someone is cited for failing to comply with a traffic signal, local authorities are authorized to impose late fees, but the fees are capped at $30.12 In several counties in Texas, the initial late fee is $10–$25, and if the case is referred to collections, it could cost up to 30 percent of the fine.13 The maximum fee for a missed credit card payment—as established by current federal regulation—is $29, or $40 if someone missed other recent payments.14 Compare that to the $300 civil assessment charged in California, which is 152 percent of the original amount due for driving with expired tabs or 125 percent for failure to stop at a stop sign, or $600 when courts impose it twice in one case, for 305 percent and 252 percent of the original amount due.15 The Cost of a Ticket for Failure to Obey a Traffic Signal in Different Jurisdictions LATE FEES $375 $30021 $300 $225 $12520 $150 $75 $5017 $30 16 - 1111 Delaware New Hampshire $7918 $11819 Texas Florida Utah COST OF CITATION WITH LATE FEE ADDED California $53827 $500 $37426 $400 $30025 $300 $23424 $200 $100 $11222 New Hampshire 7 $28723 Delaware Texas Utah Florida California Civil Assessments: The Hidden Court Fee that Penalizes Poverty LATE FEE AS A PERCENTAGE OF THE COST OF THE CITATION 126% 125% 100% 71% 75% 46% 50% 25% - 81% 51% 12% Delaware Florida Texas Utah New Hampshire California Finally, though this $300 hidden fee applies if someone does not appear in court or pay, the vast majority of these fees are applied in infraction and traffic cases, where the person is not required to appear in court. If someone wants to challenge a traffic citation, they can specially schedule a court appearance, but unlike in misdemeanor and felony cases, the norm is for people to pay the citation and never come to court. As a result, the $300 is primarily used as a punishment for not paying. In other words, people who cannot afford to pay the original amount are charged an extra $300. In 2009, Saieda SAIEDA Evans received traffic tickets, EVANS three with hundreds of dollars of fines and fees, while she was the primary caretaker for her daughter and her grandmother who had terminal cancer. Saieda was already doing everything she could to keep a roof over their heads; it required all the time, money, and effort she had. “I chose to feed my child and pay rent instead of paying my traffic tickets, because that was more important. We chose to survive.” in late fees, bringing her total balance to more than $3,000. To make matters worse, the DMV then suspended her license and her bank account was levied, even though it had almost nothing in it. This was the beginning of more than 13 years of traffic ticket debt. Because Saieda could not pay, the Court subjected her to multiple $300 civil assessments. All together, she was charged $1,200 8 “I felt like I was drowning and could not come up for air. I was trying to get back on my feet, but this debt kept weighing me down.” Saieda tried everything to pay off her traffic ticket debt. She couldn’t do community service with her demanding work and caretaking schedule. An Ability-to-Pay program reduced some debt, but still left her balance at over $1,000. Saieda eventually connected with legal organizations, but even with the help of multiple attorneys, she still owes more than $600 for tickets she received in 2009. Had she not been charged $1,200 in late fees, Saieda would have finished paying off her balance long ago. Civil Assessments: The Hidden Court Fee that Penalizes Poverty New Data: 2021-2022 Survey To better understand the impacts of civil assessments, the authors of this report conducted surveys with more than 200 people with recent traffic citations. Through a mix of in-person, telephone, and online surveys, the authors gathered information about a range of issues related to civil assessments, including the causes of missed court appearances and payment deadlines, people’s awareness of civil assessments, and the financial trade-offs that additional court-debt forces people to make.28 The data gathered from these surveys is made public for the first time in this report. As detailed in the following graphs, the survey responses speak powerfully to the problems and limitations of civil assessments. They demonstrate that, for many Californians, paying off civil assessments comes at the expense of their everyday needs—rent, food, and utilities. The data also provides insight into why the civil assessment largely fails to deter failures to appear and pay, showing that by and large people are unaware of the civil assessment and that circumstances beyond their control interfere with their ability to attend court or make their payments. Civil Assessments Harm Californians The new data collected for this report show the stark consequences of the state’s civil assessment policy. Of those surveyed, 68 percent could not afford to pay the $300 hidden fee. When faced with paying the civil assessment, 86 percent said they were concerned about their ability to pay for food, 75 percent said utilities, and 65 percent said rent. For the many who can’t afford to pay, civil assessments are a source of debt, instability, and anxiety. Paying a Civil Assessment Would Interfere with Respondents’ Ability to Pay for Necessities 65% Rent Need Respondent Is Concerned About Paying 75% Utilities 86% Food 0 10 20 30 40 50 60 70 80 90 100 % of Survey Respondents 9 Civil Assessments: The Hidden Court Fee that Penalizes Poverty Three hundred dollars is so out of reach for many low-income people that charging them does nothing to influence their decision-making on whether to attend court or pay the fine “ “Having to pay this late fee will take away my ability to provide food for myself for almost a month or it will cut into my ability to afford gas/transportation to get to work.” upfront—instead, the steep fee coupled with other fines and fees simply debilitates those unable to pay, with disastrous consequences for their lives. Given the precarity of so many Californians’ finances, a $300 or $600 fee on top of the original ticket is bound to cause economic instability, with no proven public benefit. The civil assessment operates as a regressive tax and prevents people from being able to move on with their lives after interacting with the criminal legal system, and entrenching people further into poverty. “Paying this late fee would mean that I have to choose between paying off this fee or paying rent.” Civil assessment debt can lead to aggressive collection tactics. People burdened by these $300 hidden fees may be pursued or harassed by a private collections agency. They may find their bank accounts levied, their tax refunds intercepted, and their wages garnished. For many Californians, already living on the brink of poverty, such collection tactics can push people into financial instability or ruin. “This fee has prevented me from being able to even address this ticket or get it removed from my record. It is an astronomical amount of money for someone who does not have a surplus of income in an already costly state to live in.” Civil Assessments Do Not Promote Timely Payments or Appearances Civil assessments are often touted as a tool to encourage people to appear in court or pay on time. However, most people are unaware of civil assessments: 73 percent of all survey respondents did not know that they could be charged a $300 late fee for missing a payment deadline or court appearance.29 In fact, 42 percent of those who had already been charged a civil assessment did not know they had received a late fee in their case. Given that most people are uninformed about the civil assessment, including those who have had recent tickets, it cannot reasonably be argued that civil assessments play an important role in producing court appearances and timely payments. 10 42% of respondents with civil assessments, did not know they had received them. 73% of respondents did not know they could be charged a $300 assessment for missing a court appearance or payment deadline. Civil Assessments: The Hidden Court Fee that Penalizes Poverty “ “Tacking more money onto my bill doesn’t make sense. It doesn’t make it easier for me to pay. It makes it harder.” – STEPHANIE JEFFCOAT For those close to the process, it is of little surprise that Californians are largely ignorant about the existence of this $300 hidden fee. As one California court official said: “Show me the person who reads the fine print and understands they’ll be charged the $300 civil assessment if they don’t pay or miss their court date. It’s archaic; no one knows about it.” It is not just that the threat of a civil assessment may not produce the intended results, it’s that the imposition of civil assessments may reduce the likelihood that the Court will ever collect the relevant debts. Adding an additional monetary penalty like a civil assessment does not make one more likely to pay but rather makes it even less likely that they can. Civil assessments are harsh and ineffective responses to inability to pay because they impose additional debt on those who are in no position to pay the original balance. The same is true for appearances in court. First, civil assessments as punishment for “failure to appear” are a red herring. More than 80 percent of civil assessments are given in traffic court, where people are not required to appear.30 The only reasons to appear are to voluntarily challenge the basis of the ticket, or explain why you cannot pay. For someone who cannot afford to pay a traffic citation, showing up in court to explain why is likely to be an expensive, logistically difficult, and fruitless experience. As one Judicial Council report recognized, “Traveling to the courthouse during business hours can be a burden for [people], who often must leave work or family duties.”31 11 Survey responses make clear that limited money and resources are the primary reasons that people do not respond to a citation. Lack of transportation stands out as an especially common reason for being unable to appear in lieu of payment–being unable to pay the citation often means being unable to pay for transportation. And unemployment and lack of income are given as explanations for a large proportion of failures to pay. When asked why they had failed to appear or pay, one respondent said, “Not able to appear or pay because no money or transportation.” This same sentiment was reflected in numerous responses. Another common refrain was lack of notice about deadlines and appearance options, especially amongst those with unstable housing. Expressing a point made by many others, one respondent explained that they could not pay or appear because they “did not have [a] permanent household to receive mail (experiencing homelesness).” Other people did not schedule court appearances when they could not pay because they were simply too scared about the punishments they would face in court, like the respondent who answered, “Nervous to appear in court, afraid of possible consequences.” Most people who get civil assessments have low incomes. DMV data from 2016 shows that people who did not pay or appear on a citation were concentrated in California’s lowest-income zip codes. 92% of the zip codes with above-average non-payment/non-appearance rates also had household income levels lower than the average.35 The correlation is even more significant for race: 95 percent of the 75 zip codes with a percentage of Black residents above 20 percent had an above-average rate of consequences for not appearing or paying a ticket.36 Civil Assessments: The Hidden Court Fee that Penalizes Poverty It is counterproductive to punish inability to pay or appear with further financial obligations.32 Contrary to the personal accountability framework that contributed to so many anti Black policies in past decades, studies show that most people want to honor their obligations, and do so when they can.33 For people who have the money to pay the citation by the deadline, none of these concerns are relevant—they never have to go to court, never get the $300 hidden fee, and never have to stress about spiraling debts, wage garnishment, tax intercept, or bank levy resulting from one traffic stop. The current system is premised on much stricter consequences for people who do not have money, which is not how our justice system should work.34 Civil Assessments Disproportionately Affect Black and Brown Californians Data reveals stark racial disparities in California law enforcement targets for traffic stops.37 Black and Brown Californians are more likely to be pulled over38 and therefore more likely to be ticketed.39 One California study found that Black people made up just 7 percent of the population but over 16 percent of all stops.40 Searches of Black and Brown drivers are less likely to lead to the discovery of contraband than are searches of white drivers.41 As compared with traffic stops of white drivers, stops of Black and Brown drivers are more likely to result in citations for non-observable offenses, suggesting that law enforcement more frequently lacked good cause to stop Black and Brown drivers.42 In fact, traffic stops of Black drivers are more likely to lead to any kind of citation. In a 2022 study, 31 percent of drivers perceived to be Black—the highest of any racial group—had an action taken against them at a traffic stop, i.e., instead of a warning, they got a ticket.43 Specifically, though officers stopped 445,412 more white drivers than Black drivers, officers took action against 9,431 more Black drivers than white drivers.44 All of this suggests that racial bias, rather than behavioral differences, is to blame for the disproportionate number of stops and citations targeting Californians of color. 12 These numbers are similar for non-traffic infractions, the tickets heard in traffic court that do not involve driving, like jaywalking or loitering. The Lawyers’ Committee for Civil Rights of the San Francisco Bay Area reviewed45 over 250,000 non-traffic citations issued in 2020 across the state and found that Black Californians are 9.7 times more likely to receive a citation for an infraction than white Californians, whereas Latinx Californians are more than 5.8 times more likely. Racially skewed infraction enforcement in turn produces a racially skewed demography of civil assessments. While data specifically detailing the race and ethnicity of people who receive civil assessments has not been made available, there is data about the racial demographics of those receiving other punishments for not paying or appearing on a traffic ticket. One such punishment is license suspensions, which are still frequently imposed along with civil assessments for failure to appear. A prior study—conducted when California still allowed license suspensions for failure to pay— found that the percentage of Black residents living in a California zip code is positively correlated with the zip code’s rate of license suspension due to failure to appear or pay.46 Bench warrants are another punishment sometimes used to address failure to Civil Assessments: The Hidden Court Fee that Penalizes Poverty pay or appear. Data from one county shows that, though Black people only make up 5.8 percent of the local population, 48.7 percent of those arrested for “failure to appear or pay” traffic court warrants are Black. Given the highly unequal distribution of license suspensions and bench warrants, it is safe to assume that civil assessments are also imposed in largely unequal ways. It should come as no surprise that a fee created to punish people who cannot afford to pay their balance or get to court would be imposed disproportionately against low-income people. Though data on the distribution of civil assessments to people of different income levels has not been made available, When Fatemah FATEMEH just MEHRABAN was 19 years old, she was pulled over by California Highway Patrol (CHP) officers in Sacramento and issued two citations. Like so many other Californians, Fatemeh was unable to pay for her tickets. As a result, she was subjected to $600 in hidden fees, bringing her total balance to over $1,800. As a full-time student, working nights and weekends at her family’s grocery store, she had no way to piece together that kind of money. However, Fatemeh still went to court hopeful that she could deal with her citations and pleaded with the judge for relief, but instead was only given the option to do hours of community service for the Sheriff’s Department. The stress of completing her hours under the court’s strict deadlines, while being a full-time student and part-time employee, caused Fatemeh to experience a mental health breakdown. 13 the data on license suspensions confirms that punishments for failure to pay and appear predominantly affect lower-income people.47 The license suspension study referenced above found that the proportion of a zip code that is low-income is positively correlated with the rate of license suspensions for failure to pay and appear in that zip code.48 It is thus extremely likely that civil assessments impact low-income people at higher rates than those who are more affluent. It almost goes without saying that those who have the money to quickly pay their tickets online are far better situated to avoid a $300 hidden fee than those who lack the resources to pay. Because she was unable to complete her community service hours, her full debt balance was reinstated. Fatemeh took an additional part-time job to help pay off the debt, but the new job caused her to lose her Medi-Cal coverage. As a result, she lost access to her therapist and her needed medications. Not long after, she dropped out of college. She has not been able to return to school since then or fully restore her mental health. Five years since Fatemeh was pulled over by CHP, the tickets and their accompanying debt still reverberate in her life. Long after she addressed the issues giving rise to the tickets, the burdens of court-debt remained with her, affecting her wallet and general well-being. Like so many other Californians, she encountered a toxic mix of expensive fines, inadequate payment options, and $600 in hidden fees. For her, the effects have yet to wear off. Civil Assessments: The Hidden Court Fee that Penalizes Poverty Civil Assessments Pose a Conflict of Interest for Courts e _ _ _ __ After the successes of the civil rights movement, throughout the “tough on crime” era in the 1980s and 1990s, states across the country adopted policies that increased criminalization of Black and Brown people.49 In California, these policies—like the draconian Three Strikes law—increased California’s prison population by 225 percent, and created a fiscal crisis for California superior courts in the 1990s.50 The California Legislature responded by creating the civil assessment.51 The civil assessment was created to raise funds for increased incarceration of the people most likely to be policed. Civil assessments pose a conflict of interest for courts. While courts must turn some civil assessment revenue over to the state and county,52 a significant portion of the revenue remains in their own accounts.53 Courts are both imposing civil assessments and directly benefiting from the revenue they generate. In fiscal year 2019-20, courts collectively received more than $96 million in revenue from civil assessments.54 More than $54 million of those collections were retained by the courts.55 This revenue often constitutes a substantial portion of the court’s annual budget. For instance, in Riverside County, in FY 2020-21, the Court collected $9.4 million of civil assessments and retained $6.9 million of those collections as revenue.56 This amounted to 13.9% of the Court’s annual revenue. Civil assessment revenues can be, and often are, spent on judicial salaries and benefits.57 This means that the same judges who decide when to impose a civil assessment and how much to charge can benefit directly from the revenue these hiddens 14 fees generate. The influence of this fiscal pressure is not often public, but court administrative documents are revealing. In notes received in response to a Public Records Act request, from a Riverside County Court meeting, the Court’s Chief Executive Officer recommended imposing civil assessments in more cases “to increase revenue.”58 This conflict of interest may be unlawful. Local low-income residents and non-profit groups sued San Mateo County Superior Court in early 2022 for illegally imposing civil assessments, and several other California courts have received threats of similar lawsuits.60 Federal courts have found that similar funding schemes in other states violate Due Process. In a seminal case called Tumey v. State of Ohio, the U.S. Supreme Court announced that it violates a defendant’s due process rights when a judge “has a direct, personal, substantial pecuniary interest in reaching a conclusion against” the defendant.61 In Tumey, the judge stood to derive a financial benefit from the fine he imposed on the criminal defendant. The Court ruled for the defendant because of the improper incentives this revenue scheme created. More recently, the Fifth Circuit found that the fines and fees practices of the Orleans Parish Criminal District Court (OPCDC) gave rise to just such an unconstitutional conflict of interest. The New Orleans judges would assess fees and their salaries increased as a result.62 The Fifth Circuit ruled that the fines and fees structure could not stand because it gave rise to improper incentives. At the very least, California’s current funding scheme has the appearance of impropriety.63 A process by which judges can increase Civil Assessments: The Hidden Court Fee that Penalizes Poverty What happens when courts get to keep the money they assess? the court’s revenues by imposing heftier late fees on unsuspecting individuals is bound to undermine confidence in the impartiality of the justice system. Additionally, there is reason to believe that this perverse incentive structure is actually shaping court practices. Though the statutory language of Penal Code section 1214.1 prescribes that civil assessments be “up to $300,” almost across the board, courts impose the full $300 against every eligible defendant. Of the 40 California courts that responded to public records requests, 35 courts sent documents showing that the civil assessment was, by default, set at $300. If courts benefit directly from the imposition of higher late fees, they have motivation to assess fees at the maximum, even when a lower fee would be Solano County Superior Court was sued for punishing people for not being able to pay traffic citations by suspending their driver’s licenses. In the 2017 settlement of the case, the court agreed to reduce or eliminate fines and fees for people with low incomes. However, 18 months after the new ability-to-pay process was implemented, data showed that even in cases where the court explicitly decided that the person could not afford to pay, and it forgave and reduced all other fines and fees (that the courts do not keep), it still imposed the full $300 civil assessment in 97% of cases.59 Thirty-four-year SALENA old caregiver and CalWorks SILVA recipient Salena Silva lives in San Lorenzo with her thirteen-year-old son. While taking care of her family, living in a van outside of her brother’s house, and looking for housing, she has also been saddled with nearly $5,000 in traffic fines and fees. Q In 2009, Salena received a ticket for open container. When she couldn’t pay the citation, she was charged a $300 late fee — yet another bill she couldn’t afford. This debt increased over the next decade, during which she received four other citations, each with late fees that amounted to more than $1,500. The fees loomed over her life, causing anxiety and stress while she was 15 already struggling to pay for day-to-day costs like gas and food. “They were trying to take all of this money away from us, but we didn’t have any in the first place.” Moreover, she wasn’t able to obtain a driver’s license because she couldn’t pay off her tickets. Only when she contacted legal advocates could her tickets be dismissed and, finally, after thirteen years, was she eligible for a license. Salena wishes that there had been more reminders to pay so she could have avoided at least some of the civil assessments, which doubled or tripled the base fine amounts. “Being notified would have been helpful.” Civil Assessments: The Hidden Court Fee that Penalizes Poverty V 16 Riverside Superior Court San Francisco Superior Court Humboldt Superior Court Maybe 15% Yes 17% No 68% Can you afford your late fee? court budget.65 In Humboldt County, the annual collection rate is 8 percent.66 Such low rates are not the result of lax collection efforts but rather because most people who are ordered to pay civil assessments cannot afford to pay. Amongst survey respondents, 68 percent indicated that they cannot afford to pay $300; the percentage of people who cannot pay the original fines and fees plus $300 or $600 in hidden fees is surely higher. Most Civil Assessments are Uncollectible– People Simply Cannot Afford to Pay Them 67 68 69 years, revenue from civil assessments has decreased by 36 percent. Further, a 2016 report on fines and fees, including the civil assessment, from the Legislative Analyst’s Office similarly found that “a large portion of this balance may not be collectable as the costs of collection could outweigh the amount that would actually be collected.”75 Taking into account the amount of civil assessments and the Civil Assessments: The Hidden Court Fee that Penalizes Poverty In 2005, the Legislature increased the civil assessment from $250 to $300 to help “offset the decrease in undesignated fees going to courts.”70 Yet data from the last few years show that revenue has decreased over time, as citations for traffic violations have decreased.71 In fiscal year 2016-17, $110 million was collected in civil assessments.72 By 2018-19, it had decreased to $95 million;73 and by 2020-21 it had again fallen to $70 million.74 Over the last five 8% 13.5% 20% Courts across the state report extremely low collection rates for civil assessments Courts annually charge people hundreds of millions of dollars in civil assessments. Yet, they recover only a small proportion of what they charge. For example, data from San Francisco County Superior Court indicates that the Court’s collection rate for civil assessments in criminal court is just 13.5 percent.64 Documents from the Riverside County Superior Court show that administrators assume a 20 percent collection rate on civil assessments when formulating the a time and resources spent trying to collect such assessments annually, most courts generate relatively little net revenue. Courts maintain staffing and infrastructure to allow for the imposition of civil assessments and collection processes, which includes fiscal obligations such as salaries, benefits, and non-personnel costs. For example, in fiscal year 2020-21, collectively courts across the state spent $20.1 million trying to collect $69.9 million in civil assessments.76 Essentially nearly 30 percent of all civil assessment revenue went toward collection efforts, with a low percentage of return. 0 Proven Front-End Tools Make It Easier For People to Resolve Tickets Existing research shows that alternatives to the civil assessment are equally or more effective at generating timely court appearances and payments. After the San Francisco County Superior Court stopped imposing driver’s license suspensions for failure to appear, it actually saw an decrease in delinquent debt per filing. The Court has found that “commonsense collections practices, rather than reliance on extreme penalties like driver’s license suspensions, are more likely to aid collections.”78 The same principles apply to civil assessments. Data collected in New York City criminal courts reinforces this: there, researchers found that clarifying changes to the court summons form reduced failures to appear by 13 percent, and that text message reminders reduced failures to appear by 26 percent.79 And there is reason to believe that Californians would welcome the introduction of text message reminders in their traffic courts. When asked what actions the court could take to help people resolve their tickets on-time, 44 percent of survey respondents requested that the courts provide text reminders before hearings and deadlines. 17 There is no data on the complete amount of outstanding civil assessment debt owed to the courts. This is a result of the fact that many Superior Courts have no record of the civil assessment debts they are owed. When asked to provide such a figure, multiple courts indicated that they had “no responsive records.”77 Debts that are not being tracked almost certainly will not be collected. Courts are thus keeping 80 percent of the approximately half a million Californians with civil assessments under the threat and stress of debts that the courts are neither tracking nor relying upon. Courts need not develop new practices before eliminating the civil assessment. They already have other tools at their disposal to encourage court appearances and payments. In response to non-appearance, the courts have the authority to conduct trials in absentia.80 This is how non-appearances are addressed in the civil context, where there is no civil assessment and also no other punishment for non-appearance. People who do not appear in the civil context typically lose the case by default, which is a significant consequence and one already available in the traffic courts.81 A defendant being found guilty in absentia is no trivial matter; a guilty verdict can lead to the imposition of fines, points on an individual’s driving record, increased insurance costs, and even suspension of a driver’s license in certain circumstances. 44% of survey respondents requested that courts begin offering text reminders. Civil Assessments: The Hidden Court Fee that Penalizes Poverty The courts also have numerous ways of addressing failure to pay. They can engage a collection agency to try to recover the funds or can refer the case to the Franchise Tax Board, which is authorized to use bank levies, contact employers to issue wage garnishments, and employ tax intercepts to collect court-imposed debt. With these aggressive collection tools already on the table, the civil assessment adds nothing but more of the debt that is drowning many California families. Recommendations •E nd the civil assessment. It is punitive. No data shows that it is effective for any just purpose; in fact, most people do not know it exists. Courts have a conflict of interest, but still impose it. And it is causing between 300,000 and 1 million Californians, each year, to struggle to pay for food, rent, utilities, or transportation. • Investigate common-sense process improvements. Text reminders, clear notices, alternatives to financial punishments; there is far more evidence supporting these best practices than our current ineffective system of disincentives. In the absence of common-sense practices, courts are able to enrich themselves by charging civil assessments at the expense of low-income people of color. • F und the courts without requiring them to extract money from court users. Fair and impartial courts are necessary now more than ever. The Governor and the legislature should allocate general fund money directly to the courts as a backfill for former civil assessment revenue. In the interest of fully funding courts, this backfill and reform is urgent in 2022, before civil assessment revenue—and the funds needed for sufficient court operations— decline even further. Conclusion In 2022, California should not be relying on antiquated, back-end, extreme penalties that drive poor people of color into debt. It is time to end civil assessments to advance racial and economic equity, use commonsense policies driven by data rather than 1990s biases, and end this clear conflict of interest. 18 Civil Assessments: The Hidden Court Fee that Penalizes Poverty Endnotes Estimate based on total amount of civil assessment revenue collected in FY 2019–20 ($96,944,706) divided by the typical cost of a civil assessment ($300). This is a conservative estimate because the annual revenue figure does not reflect the many people who receive civil assessments, but are unable to pay them. Judicial Council’s Dec. 1, 2022 Response to Court Records Request (Q: “The amount (in dollars) received by statewide accounts managed by the California Judicial Council as a result of imposition and collection of civil assessments under Penal Code 1214.1, disaggregated by each statewide account.”; A: “FY 2019–20: $96,944,706.”). 2 Estimate based on the number of infractions issued each year (3.2 million) and the fact that, according to at least one court, one in three infraction cases results in a civil assessment. See Judicial Council of California, 2021 COURT STATISTICS REPORT: STATEWIDE CASELOAD TRENDS 2010–11 THROUGH 2019–20 82 (2021), https://www.courts. ca.gov/documents/2021-Court-Statistics-Report.pdf (reporting that 3.2 million infractions were issued in FY 2019–20).; see also Anne Stuhldreher, California Needs to Get Rid of High Pain/Low Gain Court Fees, CALMATTERS (Aug. 18, 2021), https://calmatters.org/commentary/2021/08/california-needs-to-get-rid-of-high-pain-low-gain-court-fees/ (“In San Francisco, approximately one-third of people who got traffic tickets this year were hit with civil assessment fees.”). 3 Court records requests were sent to all 58 superior courts, asking for a wide range of documents related to civil assessment policies and revenue dating from January 1, 2018 to November 18, 2021. The data received included a variety of responsive documents, including instructions for setting civil assessments and sample notices, evincing the rate at which the courts set their civil assessments. 4 Id. 5 Lawyers’ Committee for Civil Rights of the San Francisco Bay Area et al., PAYING MORE FOR BEING POOR: BIAS AND DISPARITY IN CALIFORNIA’S TRAFFIC COURT SYSTEM 5 (2017), https://lccrsf.org/wp-content/uploads/LCCR-Report-Paying-More-for-Being-Poor-May-2017-5.4.17.pdf; Robert Lewis, State Lifts Suspensions on Half a Million Driver’s Licenses, CALMATTERS (Jan. 29, 2021), https://calmatters.org/justice/2021/01/california-drivers-licenses-traffic-ticket/. 6 Cal. Veh. Code § 42001(b) (“A pedestrian convicted of an infraction for a violation of this code or any local ordinance adopted pursuant to this code shall be punished by a fine not exceeding fifty dollars ($50).”); Judicial Council of California, UNIFORM BAIL & PENALTY SCHEDULES 12 (2021), available at https://www.courts.ca.gov/documents/ UBPS-2021-Final.pdf (showing the base fine for jaywalking is $25 and the total bail is $197).Each vehicle code violation has a base fine amount and a total bail amount. The total bail amount includes the base fine and a number of state and county surcharges and fees. 7 FTA/FTP (Failure to Appear or Pay) Violations, THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA, https://www.scscourt.org/self_help/traffic/citation_types/fta_ftp.shtml (“Up to $600 in Civil Assessment fees may be added to your case and your case may be referred for collection.”); Civil Assessment for Failure to Appear or Failure to Pay Instruction and Information Sheet, THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF RIVERSIDE, https://www.riverside.courts.ca.gov/FormsFiling/LocalForms/ri-ots38.pdf (indicating that the Court may add $300 for each failure to pay or appear, even on a single ticket). 8 Commission on the Future of California’s Court System, REPORT TO THE CHIEF JUSTICE 75 (2017), https://www. courts.ca.gov/documents/futures-commission-final-report.pdf. 9 2021 COURT STATISTICS REPORT, supra note 2, at 82 (specifically, at FY 2020, combination of traffic and nontraffic infractions). 10 Stuhldreher, supra note 2 (“In San Francisco, approximately one-third of people who got traffic tickets this year were hit with civil assessment fees.”). 11 Fla. Stat. § 28.246(6); Fla. Stat. § 318.18(8)(a). 12 Del. Code Ann. tit. 21, §4101(d)(3). 13 L ate Payments – Notice to Defendants, HARRIS COUNTY JUSTICE COURTS, http://jp.hctx.net/info/payments. htm; Fines and Fees Information, CITY OF HOUSTON, TEXAS, MUNICIPAL COURTS DEPARTMENT, https://www. houstontx.gov/courts/fine_and_fees.html. 14 Alexandria White, Don’t Make the Costly Mistake of Paying Late: Credit Card Late Fees May Rise to $40 in 2020, CNBC SELECT (Feb. 7, 2022), https://www.cnbc.com/select/credit-card-late-fees-may-rise-in-2020/. 15 See UNIFORM BAIL AND PENALTY SCHEDULES, supra note 6, at 14. 16 Del. Code Ann. tit. 21, § 4101(d). 17 Fees and Fines, N.H. DEP’T SAFETY DIVISION MOTOR VEHICLES, https://www.nh.gov/safety/divisions/dmv/financial-responsibility/fees-fines.htm. 18 L ate Payments – Notice to Defendants, HARRIS COUNTY JUSTICE COURTS, http://jp.hctx.net/info/payments.htm. 19 Fla. Stat. § 28.246(6); Fla. Stat. § 318.18(8)(a); FLORIDA COURT CLERKS & COMPTROLLERS, DISTRIBUTION SCHEDULE OF COURT-RELATED FILING FEES, SERVICE CHARGES, COSTS AND FINES, INCLUDING A FEE SCHEDULE FOR RECORDING 39 (2021), https://cdn.ymaws.com/www.flclerks.com/resource/resmgr/advisories/advisories_2021/21bull127_Attach_1_REVISED_2.pdf. 1 19 Civil Assessments: The Hidden Court Fee that Penalizes Poverty UTAH JUDICIAL COUNCIL, 2021 UNIFORM FINE SCHEDULE 1 (2021), https://www.utcourts.gov/rules/appendices/ Appendix_C/Uniform_Fine_Schedule.pdf. 21 Cal. Penal Code § 1214.1. 22 Id.; N.H. DEP’T SAFETY, UNIFORM FINE SCHEDULE - NOTICE OF FINE 2 (2019), https://www.nh.gov/safety/ divisions/dmv/forms/documents/dsmv428.pdf. 23 Id.; Sample Traffic Cases: Fines, Costs and Statutory Assessments, DELAWARE COURTS, https://courts.delaware. gov/help/traffic/SampleTrafficCaseFinesCostsAndAssessments.pdf. This total was calculated by adding the late fee ($30) and the additional fees ($146.80) to the base fine for the violation ($110). 24 Id.; Information about Traffic Cases, HARRISON COUNTY JUSTICE COURTS, http://www.jp.hctx.net/traffic/MovingFines.htm ( specifically the row titled “Ran Stop Sign or Red Light”). 25 Id.; Id. at 6, 29. This total was calculated by adding a statutorily-required surcharge (35%) to the suggested fine amount ($130) and then adding the late fee ($125). See id. 26 Fla. Stat. § 318.18(15); Fla. Stat. § 28.246(6); Fla. Stat. § 318.18(8)(a); FLORIDA COURT CLERKS & COMPTROLLERS, supra note 18, at 26. This total was calculated by adding the late fee ($118.40) and the additional fees ($95) to the base fine ($158). 27 Id.; UNIFORM BAIL AND PENALTY SCHEDULES, supra note 6, at 9. 28 Survey questions and results are on file with the authors and can be provided upon request. 29 This figure was calculated using data collected through two surveys, one administered online and one administered in-person. On the online version, the relevant question was: “Did you know that the fee charged for failing to appear in court or missing a payment deadline is usually $300?” On the in-person version, the relevant question was: “Before coming to court today, did you know HOW MUCH the fee for failing to appear in court or missing a payment deadline would be?” The responses from the two surveys were aggregated and analyzed. 30 In FY 2019–20, 80% of all criminal filings in California superior courts were for traffic or non-traffic infractions. 2021 COURT STATISTICS REPORT, supra note 2, at 82 (in FY 2019–20, there were 4,054,484 criminal filings and 3,243,819 were for infractions). In traffic and non-traffic citations cases, the defendant is not required to appear in court. Marin Superior Court, Traffic Court Frequently Asked Questions (accessed Feb. 15, 2022), https://www.marincourt.org/traffic_faq.htm (“The date at the bottom of your ticket is the ‘promise to appear’ date. It is not a court date but rather a ‘due’ date to resolve the citation in some way, either by paying it or setting up a contested court date.”). In addition to infraction cases making up a large proportion of overall criminal filings, it is also far more common for traffic courts to use civil assessments than for criminal courts to do so. Criminal courts typically rely on bench warrants rather than civil assessments. This means that 80% is a very conservative estimate; the percentage of civil assessments that are issued in cases that do not require court appearance is probably much higher. 31 REPORT TO THE CHIEF JUSTICE, supra note 8, at 217 (2017); see also Financial Justice Project, DRIVING TOWARD JUSTICE 8 (2020), https://sfgov.org/financialjustice/sites/default/files/2020-04/DrivingTowardJustice.pdf. 32 See Financial Justice Project, ADVANCING FINANCIAL JUSTICE IN SAN FRANCISCO; THE EXPERIENCE AND LESSONS OF THE CITY’S FINANCIAL JUSTICE PROJECT 33 (2020), https://sfgov.org/financialjustice/sites/default/ files/2020-05/Advancing%20Financial%20Justice.pdf (“Extreme penalties for nonpayment can push low-income people deeper into poverty and are often counterproductive collections tools”); see also Carl Formoso, Determining the Composition and Collectibility of Child Support Arrearages, WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES (May 2003), https://www.dshs.wa.gov/sites/default/files/ESA/dcs/documents/cvol1prn.pdf. (“For low earners when obligation is set too high relative to earnings collections are going to be difficult, if at all possible.”). 33 Minoff, Elisa, The Racist Roots of Work Requirements, CENTER FOR THE STUDY OF SOCIAL POLICY 4–5 (Feb. 2020), https://cssp.org/ resource/racist-roots-of-work-requirements/ (discussing how long-standing racist narratives about Black Americans and personal responsibility have worked to shape government policy); Beth A. Colgan, Graduating Economic Sanctions According to Ability to Pay, 103 IOWA L. REV. 53, 65 (2017) (profiling the academic literature on why people may be willing to pay more of their court debt if their outstanding balance is set at an amount that they can afford). 34 Amy Yarbrough, Chief justice laments historic cuts to California court system, CALIFORNIA BAR JOURNAL (April 2013), https://www.calbarjournal.com/April2013/TopHeadlines/TH2.aspx (Quoting Chief Justice Tani Cantil-Sakauye as saying, “All of us are concerned that the higher fines and higher penalties are falling on those least able to afford it . . . I worry that California is on the wrong side of history in funding justice.”). 35 In 2016, the DMV still suspended licenses for not paying or appearing on a citation, and issued civil assessments in the same cases. This data tracked the license suspensions by zip code and compared to income data. Lawyer’s Committee for Civil Rights of the San Francisco Bay Area et al., STOPPED, FINED, ARRESTED: RACIAL BIAS IN POLICING AND TRAFFIC COURTS IN CALIFORNIA 7 (2016), https://lccrsf.org/wp-content/uploads/Stopped_Fined_Arrested_BOTRCA. pdf; see also Lawyer’s Committee for Civil Rights of the San Francisco Bay Area, INTERACTIVE MAP OF INFRACTION HOTSPOTS IN LOS ANGELES, SAN DIEGO, AND LONG BEACH, https://lccrsf.org/infractions/. 36 STOPPED, FINED, ARRESTED, supra note 35, at 8. 20 20 Civil Assessments: The Hidden Court Fee that Penalizes Poverty STOPPED, FINED, ARRESTED, supra note 35, at 4 (“Black and Latino drivers are pulled over more often by police, and White drivers are pulled over less, each at rates that are disproportionate to their shares of the population.”). 38 Magnus Lofstrom, African Americans Are Notably Overrepresented in Police Stops, Public Policy Institute of California, PUBLIC POLICY INSTITUTE OF CALIFORNIA (Aug. 13, 2020), https://www.ppic.org/blog/african-americans-are-notably-overrepresented-in-police-stops/ (“While African Americans make up roughly 6% of the population in the above jurisdictions, they made up slightly more than 15% of all stops.”). 39 STOPPED, FINED, ARRESTED, supra note 35, at 21 (“When certain groups are implicitly or explicitly targeted for traffic and other investigatory stops, those groups are also disproportionately issued citations.”). 40 Lofstrom, supra note 38 (“While African Americans make up roughly 6% of the population in the above jurisdictions, they made up slightly more than 15% of all stops.”). 41 STOPPED, FINED, ARRESTED, supra note 35, at 42 (discussing data from Los Angeles and San Diego counties showing that, despite disproportionate stops, searches of Black and Brown drivers were less likely to result in findings of contraband materials). 42 STOPPED, FINED, ARRESTED, supra note 35, at 4; see also ACLU of Northern California and American Friends Service Committee, CHP RECORDS REVEAL A PATTERN OF STOPPING LATINOS TO IMPOUND VEHICLES 4–8 (Aug. 2014), https://www.aclunc.org/sites/default/files/caruthers_chp_case_study.pdf. 43 Racial and Identity Profiling Advisory Board, ANNUAL REPORT 2022, 38 (2022), https://oag.ca.gov/system/files/media/ ripa-board-report-2022.pdf. 44 Id. 45 Lawyer’s Committee for Civil Rights of the San Francisco Bay Area et al., CITED FOR BEING IN PLAIN SIGHT: HOW CALIFORNIA POLICES BEING BLACK, BROWN, AND UNHOUSED IN PUBLIC 5 (2020), https://lccrsf.org/wp-content/ uploads/2020/09/LCCR_CA_Infraction_report_4WEB-1.pdf. 46 STOPPED, FINED, ARRESTED, supra note 35, at 8. 47 Id. at 7. 48 Id. 49 Michelle Alexander, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS 56 (2012); Ruth Wilson Gilmore, GOLDEN GULAG: PRISONS, SURPLUS, CRISIS, AND OPPOSITION IN GLOBALIZING CALIFORNIA 107–113 (2007) (describing California legislative initiatives that “produced a remarkable racial and ethnic shift in the prison population.”); Brian Brown & Greg Jolivette, Cal. Legis. Analyst’s Off., A Primer: Three Strikes - The Impact after More than a Decade (Oct. 2005), https://lao.ca.gov/2005/3_strikes/3_strikes_102005.htm#:~:text=Since%20its%20implementation%2C%20the%20Three,time%20and%20have%20been%20released, (identifying that between 1994 and 2004 California sent “80,000 second strikers and 7,500 third strikers to state prison” and noting that Black people “ma[d]e up 45 percent of the third striker population, which is 15 percent higher than in the total prison population”). 50 Judicial Council of California, LEGISLATIVE BRIEFING ON TRIAL COURT FUNDING 21 (1997) https://www.courts.ca.gov/ partners/documents/TCFWG11-February1997LegislativeBriefingonTrialCourtFunding.pdf (“In addition to the quantitative growth in demand for trial court services, three strikes law, increased prosecution of felonies, increased caseloads in juvenile and family law, and ever-greater complexity in civil cases […] have caused a significant qualitative growth in demand for court services”); Chief Justice Ronald M. George, The Road to Independence: A History of Trial Court Funding, Cal. Cts. Rev., at 4 (Winter 2009), https://www.courts.ca.gov/documents/CCR_09Winter.pdf. (In 1996, the state judiciary had called attention to “problems [with funding] so severe” as to require “emergency funding from the Legislature to assist several courts facing imminent closure, a breakdown in basic services to the public, and severe layoffs of employees.”). 51 Legis. Counsel’s Dig., Assem. Bill No. 1346 (1995-1996 Reg. Sess.); Assem. Com. On Public Safety, Analysis on Assem. Bill No. 1346 (1995-1996 Reg. Sess.) (celebrating San Diego Superior Court’s ability to “raise [$]4.2 million revenue in one year” through civil assessments); see also Stats. 1996, ch. 217, § 2 (noting that the statute would take immediate effect “[i]n order to ease the fiscal crises” faced by the courts). 52 Cal. Penal Code § 1214.1(a). 53 Cal. Gov’t Code § 68085(a). 54 Judicial Council’s Dec. 1, 2022 Response to Court Records Request, supra note 1. 55 Judicial Council’s Dec. 1, 2022 Response to Court Records Request (Q: The amount (in dollars) of civil assessments revenue the California Judicial Council distributed to counties each year, disaggregated by county; A: FY 2019–20 $54,021,388). 56 Judicial Council of California, QUARTERLY REPORT OF REVENUES - SUPERIOR COURT OF RIVERSIDE Q4 2020–21, https://www.courts.ca.gov/documents/ROR-20-21-Q4-RIVERSIDE.pdf. 57 Kern Superior Court’s Oct. 27, 2021 Response to Court Records Request (Q: “The amount of money that the Court has received as a result of imposition of civil assessments under Penal Code 1214.1, and how such money is to be spent”; A: “The use of civil assessment revenue is not statutorily defined, but is generally used to offset salaries and benefits related to the time spent on the case due to the failure to appear or failure to pay.”). 37 21 Civil Assessments: The Hidden Court Fee that Penalizes Poverty Riverside Superior Court’s Response to Court Records Request sent on June 12, 2015 by Theresa Zhen at a New Way of Life (Superior Court Executive Committee Meeting Agenda, Feb. 5, 2010). 59 Settlement monitoring data on file with authors at the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. 60 Maria Dinezo, California court sued for charging ‘hidden tax’ on the poor, COURTHOUSE NEWS (Jan. 27, 2022), https://www.courthousenews.com/california-court-sued-for-charging-hidden-tax-on-the-poor/. 61 Tumey v. State of Ohio, 273 U.S. 510, 523 (1927). 62 Cain v. White, 937 F.3d 446 (5th Cir. 2019). 63 Judicial Council of California, TRIAL COURT BUDGET ADVISORY COMMITTEE MATERIALS FOR APRIL 30, 2020, https://www.courts.ca.gov/documents/tcbac-20200430-materials.pdf (The Judicial Council Trial Court Budget Advisory Committee acknowledged the conflict-of-interest problem built into the current trial court funding scheme when it proposed changes to the current funding system to reduce the “perceived conflict of interest”). 64 Financial Justice Project, CRIMINAL JUSTICE ADMINISTRATIVE FEES: HIGH PAIN FOR PEOPLE, LOW GAIN FOR GOVERNMENT 23 (2019) (Data collected from the SF Superior Court covering January 2012 through November 2017 shows that the Court collected just $456,995 of the $3,844,835 of outstanding criminal court civil assessments.). 65 Riverside Superior Court’s Response to Court Records Request sent on June 12, 2015 by Theresa Zhen at a New Way of Life (Superior Court Executive Committee Meeting Agenda, Feb. 5, 2010). 66 Humboldt Superior Court’s Dec. 13, 2021 Response to Court Records Request (Q: The percentage of outstanding civil assessment debt that is successfully recovered by the Court each year [the collection rate] and the Court’s formula for calculating the collection rate; A: 8% [total payments/total imposed]). 67 Riverside Superior Court’s Response to Court Records Request sent on June 12, 2015, supra note 65. 68 CRIMINAL JUSTICE ADMINISTRATIVE FEES, supra note 64, at 23 (2019) (Data collected from the SF Superior Court covering January 2012 through November 2017 shows that the Court collected just $456,995 of the $3,844,835 of outstanding criminal court civil assessments.). 69 Humboldt Superior Court’s Dec. 13, 2021 Response, supra note 66. 70 AB 139, https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=200520060AB139. 71 2021 COURT STATISTICS REPORT, supra note 2, at 52 (showing clear downward trends in traffic and nontraffic citations over the course of the last decade). 72 Judicial Council’s Aug. 28, 2017 Letter to the Legislature, 18-month Statewide Infraction Amnesty Program, as required under Vehicle Code section 42008.8, at 8, https://www.counties.org/sites/main/files/file-attachments/ statewide_traffic_amnesty_report_to_legislature.pdf. 73 Judicial Council’s Dec. 1, 2022 Response to Court Records Request (Q: “The amount (in dollars) received by statewide accounts managed by the California Judicial Council as a result of imposition and collection of civil assessments under Penal Code 1214.1, disaggregated by each statewide account.”; A: “FY 2018–19: $95,347,451.99.”). 74 Judicial Council’s Dec. 1, 2022 Response to Court Records Request (Q: “The amount (in dollars) received by statewide accounts managed by the California Judicial Council as a result of imposition and collection of civil assessments under Penal Code 1214.1, disaggregated by each statewide account.”; A: “FY 2018–19: $69,887,485.29.”). 75 Legislative Analyst Office, IMPROVING CALIFORNIA’S CRIMINAL FINE AND FEE SYSTEM 8 (Jan. 2016), https:// lao.ca.gov/reports/2016/3322/criminal-fine-and-fee-system-010516.pdf. 76 Judicial Council’s Dec. 1, 2022 Response to Court Records Request (Q: “The amount (in dollars) superior courts spent on collections of civil assessments, disaggregated by superior court. ”; A: “FY 2018–19: $69,887,485.29, FY 2020–21: $20,121,657.143.”); Judicial Council’s Dec. 1, 2022 Response to Court Records Request (Q: “The amount (in dollars) received by statewide accounts managed by the California Judicial Council as a result of imposition and collection of civil assessments under Penal Code 1214.1, disaggregated by each statewide account.”; A: “FY 2018–19: $69,887,485.29.”). 77 San Mateo Superior Court’s Oct. 29, 2021 Response to Court Records Request (Q: “The amount of money currently owed to the Court as a result of the imposition of civil assessments under Penal Code 1214.1.”; A: “The Court has no records”); Placer Superior Court’s Dec. 10, 2021 Response to Court Records Request (Q: “The amount of money currently owed to the Court as a result of the imposition of civil assessments under Penal Code 1214.1.”; A: “the court does not have responsive judicial administrative records.”). 78 DRIVING TOWARD JUSTICE, supra note 31, at 1. 79 Brice Cook, et al., USING BEHAVIORAL SCIENCE TO IMPROVE CRIMINAL JUSTICE OUTCOMES: PREVENTING FAILURES TO APPEAR IN COURT 15–16 (Jan. 2018), https://www.courthousenews.com/wp-content/ uploads/2018/01/crim-just-report.pdf. 80 Cal. Veh. Code § 40903. 81 Id. Some due process reforms may be needed for fairer administration of this type of trial in absentia, to bring them more in line with the civil process more appropriate for these minor citations. 58 22 Civil Assessments: The Hidden Court Fee that Penalizes Poverty