Can authorities ever wean themselves from the revenue produced by forcing Americans caught up in the justice system to pay fines and fees that trap them in an endless cycle of debt?
The answer: Only by changing the mindset of a system that now actively encourages courts and law enforcement to “shake down” some of the poorest and most vulnerable people in our communities, according to a former California judge.
“A lot of judges weren’t enforcing fines in the 1960s and 1970s, but that changed in the late 1980s, after very conscious pressure by legislatures on courts to start collecting new fees,” Lisa Foster, co-director of the Fines and Fees Justice Center, and a retired California Superior Court judge, told a conference on “Cash Register Justice” last week at John Jay College.
“There was a massive training done by the National Center for State Courts, to teach judges how to shake people down in their court rooms. If you’re a judge who came up in the 1990s, you came up in that system.
“We’ve got to undo that culture.”
The criminal justice reform community across the political spectrum, and a growing group of government actors, have come to a broad consensus that fees can be gradually eliminated if governments take a more realistic approach, the conference was told.
Mitali Nagrecha, director of the National Criminal Justice Debt Initiative at Harvard Law School, said pressures from legislators and law enforcement on judges to enforce fees and fines that pay for court services are often hard to resist.
Speaking at a conference panel Friday, she said two judges in a state which she declined to name had told her they couldn’t possibly implement changes to the system, which would set fines based on an individual’s ability to pay, “because a man with a gun would call them and ask to have lunch”—meaning the sheriff.
But Nagrecha said a recent study trip to Germany showed that reforms were possible if there was a willingness to rethink a practice and mindset that now pervades the entire U.S. criminal justice system.
“Germany relies completely on people’s testimony (on their ability to pay) in their fining system,” she said. “People fill out a form, they don’t do any document checks. “
“Germany doesn’t just give a flat fee to everyone. The judges seem to get something because they know the system works well, and it keeps their cases moving, and the person pays something that’s proportional to what they can pay.
“It benefits everyone.”
But changing the mindset may be the hardest challenge of all.
“Often authorities look at someone caught in the criminal justice system as a lion looks at a sickly gazelle,” quipped William Maurer, managing attorney of Institute for Justice.
Amir Whitaker, now an attorney with the American Civil Liberties Union in California, confirmed it with an anecdote from his own experience as a youth on probation in New Jersey.
“My meetings [with a counselor) would start with a question ‘Where’s my money?’” he recalled, noting he was assessed fees for every kind of social service connected with his community supervision.
“But there were no services,” he said.
Dami Animashaun, an attorney with the Civil Rights Corps, said the fees for testing and counseling assessed young people and their families in Arizona’s Maricopa County, for example, amounted to impossible burdens.
Youths charged with possessing even “trace amounts” of marijuana—a felony in Arizona— are can avoid conviction and jail if they agree to a three month testing program, which costs $15 a week, and since you have to prove that you’re clean for at least three months, the costs can end up totaling $1,000 just in order to be released from the program, he said.
“What possible rehabilitative service does this involve?” asked Animashaun, who is part of a time leading a lawsuit against the county over its juvenile fee system.
Nevertheless, the juvenile justice system is moving faster than other components to rethink the practice.
California, Nevada and Washington have eliminated most fees for juveniles, and cities like Madison, Wis., Philadelphia, Memphis, and New Orleans are all considering abolition.
Changes elsewhere in the system itself are often nuanced. While some jurisdictions have contemplated graduated fines based on ability to play, including with payment payments plans, others are exploring the idea of using “community service” as an alternative.
Considering that few jurisdictions ever collect the full amount of fines and fees they assess—with unpaid amounts piling up into the millions—rethinking the system is critical, said Joanna Weiss, co-director of the Fines and Fees Justice Center.
“When you give people a reasonable way out of the criminal justice system, they’re much more likely to take it,” she said. “People don’t want to have this debt sitting around their necks like a noose, and if we make it less costly and manageable for people to pay, lessen the fee and giving them time to pay it.”
But that also places a burden on cities and counties to rethink their financial structure, Weiss said.
“The justice system is supposed to serve everyone,” she said. “It is a core government function that needs to be funded by everyone.”
Weiss cited a study by Governing Magazine that showed 600 cities across the country get more than 10 percent of their revenue through fines and fees.
Some 200 cities were getting more than 20 percent of their revenue from fines and fees.
But in order to collect the money, law enforcement resources have to be allocated that would otherwise be used to protect public safety, she said.
“Cities are averaging one to two percent of their revenue from fines and fees (but) each additional percentage they get in fines and fees correlated with a 6.1 percent decrease in resolving violent crime,” said Weiss.
“We’re using our criminal justice resources as tax collectors—not to protect public safety. “
TCR writer Dane Stallone contributed to this report. For more information about fines and fees, and innovative practices around the country to rethink them, please click here.