By Breanne Pleggenkuhle bpleggenkuhle@siu.edu, Kimberly R. Kras, and Beth M. Huebner

Legal financial obligations (LFOs) are routinely assessed by the courts and corrections agencies. Yet, little is known about how individuals under correctional supervision experience and perceive legal debt. Understanding perceptions of LFOs is critical as research suggests that individuals who believe that criminal justice sanctions are fair and just are more likely to perceive the system as legitimate and comply. The current study examines in-depth interview data with individuals on probation or parole to understand perspectives of LFOs and what factors may condition these views. The results suggest that participants’ views are quite varied—expressing that they deserve some level of financial punishment, particularly in restitution cases, but they question additional costs that are not directly linked to the circumstances of the case, such as supervision fees, that exacerbate a perceived experience of double jeopardy or contradict the perceived purpose of the monetary assessment. Subgroup analyses suggest that individuals with a conviction for a sexual offense have secondary financial sanctions that deepen perceptions of inequities in the system.
Journal of Contemporary Criminal JusticeVolume 37, Issue 1, February 2021, Pages 88-107

By Brittany Friedman

The expansion of monetary sanctions constitutes what Beckett and Murakawa describe as the “shadow carceral state,” where covert penal power is expanded through institutional annexation by blending civil, administrative, and criminal legal authority. A growing body of work on monetary sanctions has begun to dissect covert penal power by tracing increased civil and administrative pipelines to incarceration, civil financial alternatives to criminal sanctions, and innovations to generate criminal justice revenue. However, institutional annexation and innovation in the form of contemporary pay-to-stay practices remain understudied and undertheorized. In this article, I first examine statutes and practices to theorize pay-to-stay as exemplary of the shadow carceral state—an outcome of legal hybridity and institutional annexation legitimated using the legal construction of “not punishment,” which frames monetary sanctions as non-punitive. Second, I expand Beckett and Murakawa’s framework to argue pay-to-stay practices reveal how the shadow carceral state compounds or initiates the civil death of those charged. I broaden our notion of civil death to include financial indebtedness to the shadow carceral state. I suggest covert penal power expands through the accumulation of resources extracted from people marked for civil death through criminal justice contact. Finally, I conclude that monetary sanctions such as pay-to-stay reveal how the shadow carceral state expands covert penal power through necrocapitalism, meaning institutional accumulation occurs through dispossession and the subjugation of life to the power of death.

Journal of Contemporary Criminal JusticeVolume 37, Issue 1, February 2021, Pages 66-87

By lya Slavinski and Kimberly Spencer-Suarez

Over the last several decades, with the rise of mass incarceration in the United States and its steep costs, governments at the federal, state, and local levels have dramatically ramped up monetary punishment. Monetary sanctions are now the most common type of criminal penalty in the United States. The growth of fines, fees, and other legal financial obligations (LFOs), and the ensuing legal debt, reflect a shifting of the system’s costs onto its primarily low-income and indigent subjects. This study provides an exploration of previously underexamined ways in which monetary sanctions impose distinct burdens on the poor. Interviews with 121 defendants in Texas and New York, along with courtroom observations, demonstrate that criminal legal debt is particularly challenging for people with low incomes in three meaningful ways. First, systems set up to handle indigency claims do not adequately address the needs or complex individual circumstances of those who simply do not have the ability to pay. Oftentimes, alternatives are unavailable or statutorily prohibited. Second, the lack of alternatives to payment lead to compromising situations, which then compel indigent defendants to make difficult choices about how to allocate scant resources. Finally, being encumbered with fines and fees and participating in alternatives like community service comes with taxing time requirements that can prove uniquely challenging for those who are poor. These three findings lead us to propose a series of policy recommendations revolving around three key themes: (a) enhancement of indigency procedures, (b) equity in monetary sanctions, and (c) alleviating burdens by improving accessibility.
Journal of Contemporary Criminal Justice, 37(1), 45-65. 2021.

By Michele Cadigan and Tyler Smith

Monetary sanctions are a common tool for enforcing accountability within the criminal justice system. However, it is unclear how individuals with disabilities who have a limited capacity to work interact with the system of monetary sanctions. Drawing on courtroom observations and interviews in Washington State, we find that although the court does take disability into account when imposing economic sanctions and monitoring payment compliance, individuals with disabilities end up in a perpetual cycle of administrative hearings that can result in serious financial and health consequences for those involved. Implications for findings are discussed.

Journal of Contemporary Criminal JusticeVolume 37, Issue 1, February 2021, Pages 25-44

By Rochelle Sparko, Peter Smith, Whitley Carpenter, Laura Webb and Heather Hunt

North Carolina law allows judges to order the conversion of financial obligations to civil judgments. Although doing this may protect justice-involved people from driver’s license suspensions, an extension of probation, and additional jail time, they often unknowingly open themselves to the seizure of their state tax refunds, loss of real estate or their equity in it, barriers to expunging their criminal record, and difficulty finding housing and employment. This report expounds on the relationship between using the civil legal system to enforce payment of criminal financial obligations. Researchers reviewed files from the North Carolina Administrative Office of the Courts (AOC) from January 2017 through December 2021 to determine the number of cases converted from criminal to civil judgments, their collection rates, and the impact of collecting criminal monetary obligations civilly. The report later provides recommendations for the AOC and practitioners to reduce harm to justice-involved people from court debt.

Durham, NC: The Center for Responsible Lending (CRL), Forward Justice, and The North Carolina Justice Center, 2023. 63p.

By U.S. Department of Justice

  States, localities, courts, and prosecutor offices are among the entities that levy legal system fines and fees. The categories of fines and fees, affiliated costs, and discretion to impose or waive them, can vary greatly between, and even within, jurisdictions. However, there are certain common features. “Fines,” as utilized in this report, refers to financial penalties that are imposed upon criminal conviction, including misdemeanor and felony convictions, or upon juvenile delinquency adjudication, or when a judgment is entered for a civil infraction. A civil infraction includes citations that often can be paid in lieu of going to court, such as some quality-of-life offenses, traffic tickets, and municipal property code violations, among others. Fines are often imposed as a form of punishment or deterrence.3F 4 “Fees,” as utilized in this report, refers to itemized, financial assessments that are imposed on litigants to fund court or other government functions. They can arise at any stage of legal system involvement. For example, pre-trial litigants may face clerk fees, fees for requesting a public defender, filing fees, fees for using a public defender, or fees for entering a diversion program. Litigants who exercise their right to a trial may be assessed jury fees or fees for using an expert witness. In addition, individuals who are incarcerated may face in-custody fees for room and board, phone and email services, medical co-payments, library access, and basic hygiene necessities. Upon release, or as a condition of pre-trial release or diversion, individuals may face fees for probation supervision, drug testing, entrance into a DNA database, electronic monitoring, or drug and alcohol classes. Further, if a defendant is a minor, many jurisdictions will impose these fees on the child’s parent(s) or legal guardian(s). Unlike fines, fees are often imposed as mechanisms for funding criminal justice systems and other government functions.4F 5 Additional financial obligations may result from the assessment and enforcement of fines and fees themselves: processing fees; penalties for late payments; interest; fees for paying through a payment plan; fees for paying online; driver’s license reinstatement fees; and third-party debt collection fees, among others. Some courts also impose fees to fund specific programs, like facilities upkeep. This report treats these additional charges as “fees,” although they are often referred to as “surcharges.”

In this report, “assessment” refers to the amount of the fines or fees levied against an individual litigant, or the process to make such determination. “Enforcement” refers to the processes that jurisdictions use to compel litigants to pay fines and fees that have been assessed against them. Enforcement mechanisms may range from written warnings to financial penalties, wage garnishment, license and permit suspensions, and even arrest and incarceration.5F 6 Notably, this report focuses on fines and fees assessed against litigants accused by a government entity of criminal offenses, delinquent acts, or civil infractions. There are several categories of legal financial obligations (“LFOs”) that are outside the scope of this report, including restitution, bail bonds, and fees in civil cases that are not initiated by a government entity. 

Washington, DC: U.S. Department of Justice,  2023. 73p.

By Carly A. Gartenberg

Imagine being arrested and jailed for rolling through a stop sign. In fourteen states,1 that is a real possibility. In these states, minor traffic offenses are criminalized, meaning that they are arrestable offenses that come with a criminal record. Although what constitutes a minor traffic offense varies from state to state, generally they are moving violations (such as speeding, failing to stop, or failing to signal); equipment offenses (such as broken lights or a cracked windshield); or administrative regulations (such as driving without proof of insurance or with an expired registration). 

In 14 states, traffic offenses as minor as a cracked taillight can lead to arrest and jail. Traffic offenses are the most common way people interact with the justice system and even in the states that have decriminalized minor traffic offenses, many jurisdictions allow the use of bench warrants when a person can’t pay a fine or fee, or if they do not appear for a court hearing – which can also land them in jail. As a result of these backwards policies, millions of people are being dragged into the justice system, saddled with fine and fee debt, and having their jobs and futures jeopardized by lasting criminal records. 

Our latest report, The Drive to Jail calls out the dangers of continuing to criminalize minor traffic and offenses and outlines what states and local jurisdictions can do to ensure true traffic decriminalization is realized   
New York: Fines and Fees Justice Center, 2023. 15p.

By The Sycamore Institute

Fees and fines are an important part of Tennessee’s criminal justice system – both to punish criminal acts and fund an essential government function. This report dives deeper into one item on our list of potential policy options to address the side-effects of fees, fines, and other legal financial obligations (LFOs). Specifically, it looks at how a person’s ability to pay fees and fines factors into what they ultimately owe and highlights several options for state-level policy change. Prior reports walk through the 360+ LFOs people can accrue in the state’s criminal justice system, their effects on different stakeholders, the revenue they generate for our state and local governments, and opportunities to improve data collection. Background People can accrue a multitude of fees and fines as they move through Tennessee’s criminal justice system (Figure 1). The amounts owed depend on the offense, the actors involved, and a case’s ultimate outcome, but they can add up quickly. (1) While publicly available data is limited, it is not unusual for total debts to reach several thousand dollars or more. (2) KEY TAKEAWAYS • The effect that fees, fines, and other legal financial obligations have on people required to pay them (and the justice system overall) largely depends on their ability to pay them. • A patchwork of provisions in Tennessee code offers wide flexibility but little consistency in how courts should address defendants’ ability to pay fees and fines. • Judges across the state vary in when and how they determine a defendant’s ability to pay. • The judicial discretion baked into current law recognizes that each case is unique but can also generate unequal outcomes that diverge by jurisdiction and/or defendants’ economic status. • Options to address these challenges include gathering better data on current practices and making state law more consistent. Policymakers could also consider graduated fines. 

Nashville: Sycamore Institute, 2021. 21p.

By Rafael A. Mangual 

After enacting a sweeping bail reform, New York lawmakers have drawn the ire of constituents who are troubled by the many stories of repeat and serious offenders—some with violent criminal histories—being returned to the street following their arrests. In the state’s biggest city, the public’s growing concerns are buttressed by brow-raising, if preliminary, crime data, amplifying calls for amending or repealing the bail reform. The operative provisions of New York’s bail reform severely limit judicial discretion in pretrial release decisions, increasing the number of pretrial defendants who are being released, often without conditions and without allowing judges to consider the risk that a defendant poses to the public. New York is now the only state that does not allow judges to consider public safety in any pretrial release decisions. This brief begins with an overview of New York’s pre-2020 bail law and the reforms that took effect on January 1. It then highlights the reform’s shortfalls and ends by proposing three changes intended to address the public’s legitimate safety concerns while preserving the spirit of the reform effort and addressing some of the inequities and inefficiencies inherent in a system that is heavily reliant on the use of monetary pretrial release conditions. The proposed changes include: • Empowering judges to assess the public safety risk posed by pretrial defendants, and setting out a process that allows them to detain dangerous or chronic offenders; • Allowing judges to revoke or amend release decisions in response to a pretrial defendant’s rearrest; and • In the intermediate term, setting aside additional funds or diverting existing funds to reduce the time a defendant stands to spend in jail if remanded to pretrial detention.  

New York: Manhattan Institute, 2020. 14p.

By Julius Yam 

Authoritarianism has significant implications for how judges should discharge their duties. How should judges committed to constitutionalism conduct themselves when under authoritarian pressure? To answer this question,the article proposes a two-step adjudicative framework, documents a variety of judicial strategies, and proposes how principles and strategies can and should be incorporated into the framework in different scenarios. The first step of the adjudicative framework involves judges identifying the ‘formal legal position’ while blindfolding themselves to extra-legal factors (such as potential authoritarian backlash). In the second step, depending on the level of risk incurred by maintaining the formal legal position, judges should lift the blindfold to check whether, and if so how, the formal legal position should be supplemented with or adjusted by judicial strategies. Through this analysis, the article offers a guide to judicial reasoning under authoritarianism 

Modern Law Review Limited.(2023) 00(0) MLR 

By Colette Barry, Chalen Westaby, Mark Coen, Niamh Howlin

Judges are required to suppress and manage their own emotions as well as those of other court users and staff in their everyday work. Previous studies have examined the complex emotional labour undertaken by judges, but there is limited research on the emotion management performed by judges in their interactions with jurors. Drawing on a qualitative study of judge–jury relations in criminal trials in Ireland, we illustrate how judges learn and habituate emotional labour practices through informal and indirect processes. Judges described managing their emotions to demonstrate impartiality and objectivity. Their accounts also underline the importance of balancing presentations of neutrality with empathy, as well as being mindful of the potential emotional toll of jury service on jurors.

Journal of Law and Society Volume 50, Issue 4 p. 477-499

By Sarah Lageson & Robert Stewart

Criminal records are routinely used by employers and other institutional decision-makers who rely on their presumed fidelity to evaluate applicants. We analyze criminal records for a sample of 101 people, comparing official state reports, two sources of private-sector background checks (one regulated and one unregulated by federal law), and qualitative interviews. Based on our analysis, private-sector background checks are laden with false-positive and false-negative errors: 60 percent and 50 percent of participants had at least one false-positive error on their regulated and unregulated background checks, and nearly all (90 percent and 92 percent of participants, respectively) had at least one false-negative error. We define specific problems with private-sector criminal records: mismatched data that create false negatives, missing case dispositions that create incomplete and misleading criminal records, and incorrect data that create false positives. Accompanying qualitative interviews show how errors in background checks limit access to social opportunities ranging from employment to education to housing and violate basic principles of fairness in the legal system.

United States, Criminology. 2024, 30pg

By Criminal Justice Joint Inspectorates: UK

In this report, the Criminal Justice Joint Inspectorates focus on recruitment and retention in the agencies that they inspect. The report draws on evidence from inspections conducted by each of the individual inspectorates, both jointly and singly, of the police, the Crown Prosecution Service (CPS), the Probation and Youth Offending Services and the Prison Service. It sets out the findings from this work, as well as cross-cutting themes. It concludes by highlighting signs of progress as well as ongoing risks to the criminal justice system.

United Kingdom, CJJI. 2024, 19pg

By Vera M. Kachnowski and Amanda Russell

 In 2016, the United States Sentencing Commission promulgated an amendment that comprehensively revised the guideline covering illegal reentry offenses—§2L1.2 (Unlawfully Entering or Remaining in the United States). The amendment, Amendment 802, became effective November 1, 2016, and represented the most comprehensive revision of a major guideline in the last two decades. This report examines the impact of Amendment 802 by looking back at sentencings under §2L1.2 over the last ten fiscal years. The report first describes the concerns leading to the amendment, including that §2L1.2’s 12- and 16-level increases were overly severe and led to variances, and that using the “categorical approach” to apply enhancements was overly complex, resource intensive, and increased litigation and uncertainty. After outlining the changes made by Amendment 802, the report assesses its impact on guideline application for §2L1.2 offenders and on appeals involving §2L1.2.

Washington, DC: United States Sentencing Commission, 2022. 38p.

By Sarah W. Craun and Alyssa Purdy

There are numerous federal criminal statutes authorizing a sentence of life as the maximum sentence allowed, such as for offenses involving drug trafficking, racketeering, and firearms crimes. While convictions under these statutes are common, sentences of life imprisonment are rare, accounting for only a small proportion of all federal offenders sentenced.  In February 2015, the Commission released Life Sentences in the Federal Criminal Justice System, examining the application of life sentences by federal courts during fiscal year 2013. Using data from fiscal years 2016 through 2021, this report updates and augments the Commission’s previous findings by examining the offenses that led to the life sentences imprisonment imposed, along with offender demographics, criminal histories, and victim-related adjustments.

Washington, DC: United States Sentencing Commission,  2022. 40p.

By Kathleen C. Grilli, Kevin T. Maass and Charles S. Ray,

This publication summarizes the history of Chapter Eight’s development and discusses the two substantive changes made to the elements of an effective compliance and ethics program. It then provides policymakers and researchers a snapshot of corporate sentencing over the last 30 years. Finally, the publication describes Chapter Eight’s impact beyond federal sentencing.

Washington, DC: United States Sentencing Commission, 2022. 94p.

By April A. Christine,  Courtney R. Semisch,  Charles S. Ray, and Amanda Russell,

This comprehensive study of robbery offenders sentenced in fiscal year 2021 provides an analysis of the characteristics of robbery offenders, their criminal history, and their sentences imposed. The report also provides analyses on the prevalence of robbery offenses and how they were committed, including who was robbed, what was taken, the use or threatened use of physical force, the use of a firearm or other dangerous weapon, and whether any victim was injured or killed during a robbery. This report builds upon the Commission’s recent observations regarding the high recidivism rates among federal robbery offenders

Washington, DC: United States Sentencing Commission, 2022. 60p.

By Vera M. Kachnowski, Christine Kitchens, and Data Cassandra Syckes,

The report entitled Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System updates a 2016 Commission study and examines sentences for simple possession of marijuana offenses in two respects. Part One of the report assesses trends in federal sentencings for simple possession of marijuana since fiscal year 2014. The report then describes the demographic characteristics, criminal history, and sentencing outcomes of federal offenders sentenced for marijuana possession in the last five fiscal years and compares them to federal offenders sentenced for possession of other drug types. Part Two of the report examines how prior sentences for simple possession of marijuana (under both federal and state law) affect criminal history calculations under the federal sentencing guidelines for new federal offenses. The report identifies how many federal offenders sentenced in fiscal year 2021—for any crime type—received criminal history points under Chapter Four of the Guidelines Manual for prior marijuana possession sentences. The report then assesses the impact of such points on those offenders’ criminal history category, one of the two components used to establish the sentencing guideline range.

Washington, DC: United States Sentencing Commission, 2023. 46p

 By Tracey Kyckelhahn and Amanda Kerbel,

The United States Sentencing Commission (“the Commission”) has previously published reports on the relationship between demographic factors and sentencing,1 but none have focused specifically on the educational attainment of federally sentenced individuals. The United States Census Bureau estimates that 12.8 percent of the U.S. population have acquired a graduate degree (i.e., master’s degree, professional degree, or doctoral degree).2 However, less than two percent (1.8%) of federally sentenced individuals in fiscal year 2021 were in this educational attainment group. Congress requires courts to consider several factors when determining the appropriate sentence to be imposed in federal cases, including the “history and characteristics of the defendant.”3 The federal sentencing guidelines provide that specific characteristics of sentenced individuals such as education may be considered at sentencing, yet there is little information published that examines differences across education levels.4 Accordingly, this report provides an analysis of the federally sentenced individuals in fiscal year 2021 by educational attainment. 

Washington, DC: United States Sentencing Commission 2023. 36p.

By The New York State Bar Association

The Task Force analyzed the newly-enacted New York State Josef Neumann Hate Crimes Domestic Terrorism Act (the “Neumann Act”), New York Penal Law § 485, which recognizes mass killings motivated by hate as acts of terrorism by creating two terrorism offenses: domestic acts of terrorism motivated by hate in the first and second degrees. The Neumann Act also amends the definition of “specified offense” in the hate crimes statute to include terrorism crimes and establishes a Domestic Terrorism Task Force comprised of members of New York government and law enforcement.

The Task Force also considered possible additional legislation to address hate crimes. First, the Task Force recommends further study of two possible changes to criminal statutes—it considered but ultimately rejected an amendment to the definition of “civilian population” in current terrorism statutes, and recommends consideration of a proposal to align New York’s definition of “material support or resources” with the federal definition. Second, the Task Force considered possible methods of addressing a rise in low-level hate-motivated offenses—it recommends further study of the proposal to attend mandatory counselling or training, and rejects the possibility of adding a rebuttable presumption of intent to § 485. Third, the Task Force recommends further study of possible civil causes of action for hate crimes and domestic terrorism, including expanded causes of action under New York State civil rights law, and amendments to New York Not-for-Profit Law, Business Corporation Law, and Limited Liability Law to prevent recovery of property from entities that provide support to terrorist causes. Fourth, the Task Force recommends an increase in law enforcement resources to prosecute hate crimes, including making hate crimes a designated offense to facilitate wiretaps and additional training of law enforcement on hate crime issues. Finally, the Task Force notes a surge in anti-Asian and anti-Semitic hate crimes amid the COVID-19 pandemic, as well as a rise in hate-motivated attacks associated with COVID-19 via online platforms. These attacks and incidents highlight the urgent need for law enforcement and lawmakers to take action to curb hate crimes.

Albany: The Bar Association, 2020/ 41p.