By Hayley Hahn

In recent decades, states and municipalities have increasingly relied on court fines and fees to overcome budget shortfalls. Existing literature underscores the varied and adverse impacts of court debt, as well as the disproportionate incidence of such debt on people of color and poor people of all races. Yet, few pieces of scholarship directly link increased imposition of court fines and fees to decreased dependence on traditional progressive taxes. This article aims to fill the gap. Using the Law and Political Economy (LPE) framework, I argue that increased imposition of court debt derives from heightened antitax sentiment and the erosion of the state and local tax bases. In the process, I contend, the tax and court debt systems reflect and exacerbate racial inequality. I conclude by proposing a conceptual framework to abate reliance on court debt, advancing the LPE mission.

Journal of Law and Political Economy, 2(1) 2021.

By Carl Lieberman, Elizabeth Luh and Michael Mueller-Smith

Millions in the United States face financial sanctions in the criminal court system each year, totaling over $27 billion in overall criminal debt. In this study, we leverage five distinct natural experiments across multiple states using regression discontinuity designs to evaluate the causal impact of these sanctions. We consider a range of long-term outcomes including employment, recidivism, household expenditures, and other self-reported measures of well-being, measured using a combination of administrative records on earnings and employment, the Criminal Justice Administrative Records System, and household surveys. We find consistent evidence across the range of natural experiments and subgroup analyses of precise null effects on the population, ruling out long-run impacts larger than +/-3.6% on total earnings and +/- 4.7% on total recidivism. These results are inconsistent with theories of criminal debt poverty traps but also do not justify using financial sanctions for local revenue or as a crime control tool.

Unpublished paper, 2023. 54p.

By Matthew Menendez, Michael F. Crowley, Lauren-Brooke Eisen, and Noah Atchison

The past decade has seen a troubling and well-documented increase in fees and fines imposed on defendants by criminal courts. Today, many states and localities rely on these fees and fines to fund their court systems or even basic government operations.

A wealth of evidence has already shown that this system works against the goal of rehabilitation and creates a major barrier to people reentering society after a conviction.

They are often unable to pay hundreds or thousands of dollars in accumulated court debt. When debt leads to incarceration or license suspension, it becomes even harder to find a job or housing or to pay child support. There’s also little evidence that imposing onerous fees and fines improves public safety.

Now, this first-of-its-kind analysis shows that in addition to thwarting rehabilitation and failing to improve public safety, criminal-court fees and fines also fail at efficiently raising revenue.

The high costs of collection and enforcement are excluded from most assessments, meaning that actual revenues from fees and fines are far lower than what legislators expect. And because fees and fines are typically imposed without regard to a defendant’s ability to pay, jurisdictions have billions of dollars in unpaid court debt on the books that they are unlikely to ever collect. This debt hangs over the heads of defendants and grows every year.

This study examines 10 counties across Texas, Florida, and New Mexico, as well as statewide data for those three states. The counties vary in their geographic, economic, political, and ethnic profiles, as well as in their practices for collecting and enforcing fees and fines.

New York: Brennan Center for Justice at New York University School of Law 2019. 68p.

By Don Stemen and David Olson

Bail reform efforts across the United States have accelerated in recent years, driven by concerns about the overuse of monetary bail, the potentially disparate impact of pretrial detention on poor and minority defendants, and the effects of bail decisions on local jail populations. Proponents of bail reform advocate for reducing or eliminating the use of monetary bail, arguing that many defendants are held in jail pretrial solely because they cannot afford to post bail. Opponents counter that reducing the use of monetary bail or increasing the number of people released pretrial could result in more defendants failing to appear for court hearings (FTAs) or committing crimes while on pretrial release. Evaluations of recent bail reform efforts indicate that these efforts have not been associated with increases in new criminal activity….. A debate has played out in the media regarding the link between GO18.8A, the types of individuals released pretrial, and the number and percent of individuals charged with a new crime while on pretrial release. The debate centers around an evaluation of GO18.8A conducted by the Office of the Chief Judge (OCJ).5 The OCJ’s evaluation found that the number and percent of felony defendants released pretrial increased after GO18.8A but that the percent of felony defendants charged with a new crime while on pretrial release was similar before and after GO18.8A. Subsequent analyses by the media6 and academics7 suggested that the OCJ’s evaluation underestimated the percent of defendants charged with a new crime after GO18.8A. …. These critiques suggested that GO18.8A may have led to an increase in new criminal activity of those released pretrial and contributed directly to increases in crime in Chicago and Cook County. These subsequent analyses, however, also suffer from methodological problems similar to those in the OCJ’s evaluation. By relying on the same public data collected and distributed by the OCJ, these analyses were unable to correct for the critiques made of the OCJ’s analyses – namely a truncated follow-up period and a failure to account for seasonality – without making assumptions about, and estimations of, underlying recidivism rates of those released.8 More importantly, the analyses were unable to verify or refute the OCJ’s analyses of bond court decisions, release rates, or new criminal activity through the independent analysis of defendant- and charge-level court or jail data. As a result of these methodological shortcomings and contradictory findings, the actual impact of GO18.8A remains unclear. ….

Chicago: Loyola University Chicago, 2020. 34p

By James Hess and Susan Turner

Jurisdictions across the country have joined a movement to rethink how individuals are handled at the pretrial stage of case processing. Although alternatives to cash bail systems have been around since the 1960s, 1 renewed interest has focused on the use of risk assessment algorithms to help determine which pretrial individuals might be released safely into the community. These types of tools hold promise as a means to move away from “debtor prisons” for individuals who do not have the financial resources to pay for their release. However, the field is still in the relatively early stage of testing these tools for predictive ability, potential racial bias in administration, as well as whether their use actually reduces incarceration.2 California has recently entered the pretrial risk assessment arena. Senate Bill 10 was passed in 2018 to change from a cash-based pretrial system to a risk-based release and detention system; although it is on hold until November 2020 when California voters determine its fate. 3 However, legislation passed as part of the 2019 Budget Act created a pilot program to test the use of various risk assessment tools in a number of counties across California. This report presents findings from the Los Angeles pilot effort under the Act to validate the Public Safety Assessment (PSA). The PSA is a risk assessment instrument developed by the Laura and John Arnold Foundation to inform pretrial judicial decisions on whether to release or detain a defendant. The tool predicts three outcomes after pretrial release: Failure to Appear (FTA); New Criminal Activity (NCA, arrest on any misdemeanor or felony charge); and New Violent Criminal Activity (NVCA, arrest on a violent misdemeanor or felony charge). The tool’s nine risk factors include prior convictions, incarceration, and failures to appear, violent offenses, pending cases at the time of arrest and age. Risk factor counts are weighted by an integer multiplier and summed to create a risk score. Several sets of adjacent scores are collapsed together into one score to produce a final 6-point risk scale for each of the outcomes.

Irvine, CA: University of California Irvine, Center for Evidence-Based Corrections, 2021. 103p

By Marea Beeman, Kellianne Elliott, Rosalie Joy, Elizabeth Allen, and Michael Mrozinski

  In the United States of America, individuals accused of crime who cannot afford to hire a lawyer have a constitutional right to have one appointed to represent them at government expense. In 2021, the National Legal Aid & Defender Association (NLADA) set out to investigate the national landscape of laws and local practices relating to fees that are assessed upon individuals when they exercise their constitutional right to counsel. Findings from the resulting eighteen-month investigation show that in the overwhelming majority of states, the Sixth Amendment right to counsel does not mean that counsel for those who cannot afford it is provided free of charge. In 42 states, plus the District of Columbia, laws authorize courts to impose public defense system fees – both upfront application or administrative fees, and fees recouping the cost of counsel – on people who are represented by court-appointed attorneys. NLADA’s review finds that these fees do more harm than good. For instance, in no state with available data does collection of public defense recoupment fees amount to more than five percent of assessed recoupment costs. Yet individuals assessed these fees who cannot pay them down are essentially sentenced to years of court entanglement and consequences that can sharply limit efforts to move forward in life. Unpaid court debt, including public defense system fees, can result in years of, among other things, inability to secure reliable housing and employment, tarnished credit, and risk of arrest or incarceration for failure to pay. …

 Washington DC:  National Legal Aid & Defender Association, 2022. 136p.

By  Joshua Page, Victoria Piehowski, Joe Soss

  Among the institutions that link criminal justice and inequality in the United States, commercial bail remains one of the most important yet least understood. Each year, the bail industry extracts millions of dollars from lower-income Americans, disproportionately draining resources from poor communities of color. We draw on ethnographic research to explore how the bail system operates as a predatory social process, arguing that gender interacts with class and race to structure resource extraction in this field. Poor women of color are especially subject to bail predation because they are seen within the larger social organization of care as bearing primary responsibility for defendants. Gendered care work and emotional labor are thus central to the field’s logic of practice and to bail industry profits.

RSF: The Russell Sage Foundation Journal of the Social Sciences 5(1): 150–72  

 By William Crozier , Brandon Garrett & Thomas Maher

 There has been an explosion of debt in our North Carolina criminal courts, much of it that has not been paid and likely never can or will be paid. In over 1.72 million cases total – and 120,000 cases each year criminal courts in North Carolina have imposed fees that a person cannot or does not pay. A failure to comply with the court order to pay, or an “FTC,” is then entered in the case. Over 650,000 people, or one in twelve adults in North Carolina currently have such unpaid criminal court debt. This largely uncollectible debt may total well over one hundred million dollars. This debt disproportionately burdens minority residents of North Carolina. Much of this debt arises in low-level traffic cases and infractions.

Durham, NC: The Center, 2020. 20p.

By Maria Rafael

Nearly every person convicted in a Washington court faces the heavy burden of court debt.2 The vast majority of Washingtonians with criminal cases—as many as 90 percent—meet the indigency standard, indicating that they have limited or no ability to repay their court debt.3 People with court debt are more likely to already be burdened by other types of debt, making it even more difficult for them to free themselves of the financial burden of LFOs.

New York: Vera Institute of Justice, 2023. 10p.

By Rebekah Diller

Increasingly, states are turning to so-called “user fees” and surcharges to underwrite criminal justice costs and close budget gaps. In this report, we focus on Florida, a state that relies so heavily on fees to fund its courts that observers have coined a term for it – “cash register justice.” Since 1996, Florida added more than 20 new categories of financial obligations for criminal defendants and, at the same time, eliminated most exemptions for those who cannot pay. The fee increases have not been accompanied by any evident consideration of their hidden costs: the cumulative impacts on those required to pay, the ways in which the debt can lead to new offenses, and the costs to counties, clerks and courts of collection mechanisms that fail to exempt those unable to pay. This report examines the impact of the Florida Legislature’s decision to levy more user fees on persons accused and convicted of crimes, without providing exemptions for the indigent. Its conclusions are troubling. Florida relies heavily on fees to underwrite its criminal justice system and, at times, uses monies generated by fees to subsidize general revenue. In many cases, the debts are uncollectible; performance standards for court clerks, for example, expect that only 9 percent of fees levied in felony cases will be collected. Yet, aggressive collection practices result in a range of collateral consequences. Missed payments produce more fees. Unpaid costs prompt the suspension of driving privileges (and, relatedly, the ability to get to work).

New York: Brennan Center for Justice, 2019. 48p.