On Dec. 2, 2015, the Justice Department hosted a convening to address the effect and fairness of fees and fines. The department convened judges, academics and practitioners to develop a research and policy agenda that will inform jurisdictions in their efforts to reform court practices. On Dec. 3, the White House and the department co-sponsored an event called, “A Cycle of Incarceration: Prison, Debt and Bail Practices,” to bring public attention to the connection between poverty and the criminal justice system and highlight state reform efforts. The White House Council of Economic Advisers also released an issue brief exploring the economic inefficiency of fines, fees and bail and their disproportionate impact on the poor.
THE JUSTICE DEPARTMENT’S COMMITMENT TO FAIRNESS IN THE CRIMINAL JUSTICE SYSTEM
Criminal justice reform is a top priority for the administration and specifically for the Justice Department. The department has taken significant steps to prevent vulnerable communities from becoming justice-involved, and to promote initiatives that reduce the likelihood of recidivism.
The department’s efforts also include addressing problems that obstruct opportunity, such as poverty, since those who are economically disadvantaged are more easily caught up in the criminal justice system and face greater barriers to reentry. Among these efforts are numerous diversion and reentry programs, as well as the White House Legal Aid Interagency Roundtable, which works to improve federal anti-poverty programs by providing access to legal aid.
The department is particularly concerned about criminal justice system practices that perpetuate and exacerbate poverty by imposing unnecessary and exorbitant fees and fines, unjust collection practices, unwarranted suspension of drivers' licenses and other legal obligations. Such penalties may appear small in isolation, but in the obligations can easily and rapidly add up.
These and other practices are not only unwise and harmful, but also inconsistent with constitutional mandates. For example, people are routinely assessed fines that they cannot afford and then jailed for nonpayment without any inquiry into their ability to pay, as required by the Constitution.
These harms are most frequently felt by the most vulnerable members of our communities, and often in cases involving minor offenses, such as traffic citations. Fees and fines have significant consequences. Individuals face repeated, unnecessary incarceration in already overcrowded jails, lose their jobs and their housing, face escalating debt and often become trapped in cycles of poverty that can be nearly impossible to escape.
JUSTICE DEPARTMENT’S REFORM EFFORTS
Ferguson Report: In March 2015, the Civil Rights Division released its report on the investigation of the Ferguson, Missouri, Police Department. In addition to finding a series of unconstitutional police practices, the investigation found that the city focused its municipal court operations on revenue generation rather than public safety, resulting in practices that violate the constitutional rights of area residents. The investigation found that courts routinely imposed excessive fines; ordered the arrest of low-income residents for failure to appear or make payments, despite inadequate notice and without inquiring into their ability to pay; and used unlawful bail practices resulting in unnecessary incarceration. Many of these practices disproportionately impacted African Americans. The department is committed to systemic reform in Ferguson including ensuring a court system that respects peoples’ constitutional rights and avoids unnecessary incarceration.
Statements of Interest and Amicus Briefs: The Civil Rights Division and the Office for Access to Justice have filed a number of briefs in courts to protect the rights of the indigent in criminal proceedings, on a range of topics, including unconstitutional bail practices, meaningful right to counsel under the Sixth Amendment and the criminalization of homelessness.
Assistance to States and Localities:Through the Office of Justice Programs (OJP), the department will make funding available to support innovative approaches and alternatives to criminal justice fees, fines and other legal financial obligations that contribute to the cycle of incarceration and poverty. OJP’s Office of Civil Rights is also evaluating discrimination complaints against several court systems to determine whether their pretrial and bail policies violate federal laws. Following the convening, the OJP Diagnostic Center will prepare a report to outline a research and policy agenda that will help advance the conversation about criminal justice reform.
COUNCIL OF ECONOMIC ADVISERS ISSUE BRIEF
Increasing Use of Fines, Fees and Bail:As higher levels of incarceration and law enforcement have placed budgetary pressure on states and local governments, they have increasingly turned to criminal justice payments as a source of additional revenue. Available data suggests that about two-thirds of all prison inmates have criminal justice debts, and rising use of bail payments has contributed to a 60 percent increase in the number of un-convicted inmates in jails between 1996 and 2014.
Disproportionate Impact on the Poor: Because fines and fees do not take into account the defendants’ ability to pay, they place a disproportionate burden on lower-income defendants and create a highly regressive system of raising revenue and paying for criminal justice operations. Low-income individuals with criminal justice debts may face difficult tradeoffs between paying their debt and purchasing other necessities, and those unable to pay can face incarceration, demonstrating the large human cost of these policies as well. Bail payments set without consideration of financial circumstances can also result in detaining the poorest defendants rather than the most dangerous. For example, in New York City in 2010, nearly 80 percent of arrestees failed to make bail at arraignment for bail amounts less than $500.
Economic Inefficiency: Assigning fines and fees to low-income offenders represents a highly inefficient way to raise revenue, as these individuals likely do not have the means to pay. Some states are able to collect less than 20 percent of some types of fees, and the low rate of collection sometimes means that the cost of operating the program exceeds the revenue collected. Incarcerating individuals for failure to pay only furthers this problem, with the cost of incarceration alone sometimes exceeding the debt owed.