By Andrew Galley,  Frank Sirotich, and Sara Rodrigues  

This report is based on a scoping review by a team of researchers at the Canadian Mental Health Association (CMHA), who analyzed existing research and policy documents on the mental health care needs of justice-involved persons in Canada’s criminal justice system and in peer jurisdictions. It aims to guide future research and policy development by highlighting what is currently known about this topic and what knowledge gaps may exist in the literature on mental health in the criminal justice system. While it highlights research on the prevalence of mental health problems and mental illness in the criminal justice system, experiences of justice-involved persons with mental health problems and mental illness, and promising practices and principles for mental health care, it is not intended to be a comprehensive review of the literature.   

Ottawa: Mental Health Commission of Canada , 2020. 124p.

By Birth Companions

In this briefing paper we shine a spotlight on the issues faced by women who have contact with both the criminal justice and children’s social care systems during pregnancy and the first two years of their child’s life. We outline the context, highlight key evidence, and share some powerful contributions from our Lived Experience Team who have experienced this ‘dual contact’. 

UK: Birth Companions, 2023. 25p.

By Donald Kerwin & Brendan Kerwin

This paper examines the staffing needs of the US Department of Justice’s Executive Office for Immigration Review (EOIR), as it seeks to eliminate an immigration court backlog, which approached 2.5 million pending cases at the end of fiscal year (FY) 2023. A previous study by the Center for Migration Studies of New York (CMS) attributed the backlog to systemic, long-neglected problems in the broader US immigration system. This paper provides updated estimates of the number of immigration judges (IJs) and “judge teams” (IJ teams) needed to eliminate the backlog over ten and five years based on different case receipt and completion scenarios. It also introduces a data tool that will permit policymakers, administrators and researchers to make their own estimates of IJ team hiring needs based on changing case receipt and completion data. Finally, the paper outlines the pressing need for reform of the US immigration system, including a well-resourced, robust, and independent court system, particularly in light of record “encounters” of migrants at US borders in FY 2022 and 2023.

United States, Journal on Migration and Human Security. 2024, 10pg

By The United States Sentencing Commission

This report examines variations in sentencing practices—and corresponding variations in sentencing outcomes—in the federal courts since the Supreme Court’s 2005 decision in United States v. Booker. The United States Sentencing Commission analyzed the sentencing practices of federal district judges in 30 major cities located throughout the country to determine the extent of the judges’ variations in imposing sentences in relation to the city average. This report is the second in a series of reports updating the analyses and findings of the Commission’s 2012 Report on the Continuing Impact of United States v. Booker on Federal Sentencing.

Washington, DC: United States Sentencing Commission, 2019. 138p.

By The United States Sentencing Commission

This report is the third in a series of reports. It examines variations in sentencing practices—and corresponding variations in sentencing outcomes—across federal districts since the Supreme Court’s 2005 decision in United States v. Booker.  The Commission’s ongoing analysis in this area directly relates to a key goal of the Sentencing Reform Act of 1984: reducing unwarranted sentencing disparities that existed in the federal judicial system.  In particular, the Act was the result of a widespread bipartisan concern that such disparities existed both regionally (e.g., differences among the districts) and within the same courthouse. Having analyzed the differences within the same courthouse in its Intra-City Report, the Commission now turns in this report to examining regional differences since Booker.

Washington, DC: United States Sentencing Commission, 2020. 100p.

By Ian K. Belton, Mandeep K. Dhami

Personal mitigating factors (PMFs) such as good character, remorse and addressing addiction help sentencers evaluate an offender's past, present and future behavior. We analyzed data from the 2011–2014 Crown Court Sentencing Surveys in England and Wales to examine the relationship between these PMFs and custodial sentences passed on assault and burglary offenses, controlling for other sentencing relevant factors. Beyond revealing the distribution and co-occurrence of the three PMFs, it was found that good character, remorse and addressing addiction all had a significant mitigating effect. The effects of addressing addiction were the strongest of the three across both offense types, while good character had a stronger effect on burglary than assault. In addition, some mitigating factors appear to be underweighted when they occur together. We consider the implications of these findings for sentencing policy and practice.

Journal of Empirical Legal Studies, Volume21, Issue1, March 2024, Pages 208-239

By Kelly Lyn Mitchell

  When a person is charged and convicted of a criminal offense in Minnesota, a number of consequences flow from that conviction. The person may experience arrest and booking into the county jail. They may have to post bond or bail to gain pretrial release from jail while the case is pending. And if convicted, they may be sentenced to a period of incarceration in prison or jail or they may be ordered to serve a period of time on probation, during which they will have numerous court-ordered conditions to comply with. Each of these touchpoints with the criminal justice system may incur additional challenges for the person, such as potential loss of employment, and impacts on family members who may have to post bail or oversee care for their children. One area that is less visible is the financial side of the experience. There are three different types of financial obligations a person may be required to pay following conviction for a criminal offense: fines, restitution, and fees (Table 1). Fines serve as a form of punishment for the offense committed, while also generating revenue for the system. Restitution, on the other hand, is a financial obligation that aims to compensate the victim for any losses sustained as a result of the crime. Fees are different, in that their primary function is revenue generation. Fees are financial obligations that are used to fund specific aspects of the criminal legal system, such as public defender representation, or to provide funding for the state, county, or city’s general budget

Minneapolis: Robina Institute of Criminal Law and Criminal Justice, 2023. 20p.

By Sarah Shannon

Georgia leads the nation in probation supervision, which has been the subject of recent legislative reforms. Probation supervision is the primary mechanism for monitoring and collecting legal financial obligations (LFOs) from people sentenced in Georgia courts. This Article analyzes how monetary sanctions and probation supervision intersect in Georgia using quantitative data from the Department of Community Supervision as well as interviews with probationers and probation officers gathered as part of the Multi-State Study of Monetary Sanctions between 2015 and 2018. Several key findings emerge: (1) there is substantial variation between judicial districts in the amount of fines and fees ordered to felony probationers in Georgia, with fines and fees in rural areas much higher than those in urban areas; (2) probationers express fear of incarceration solely for lack of ability to pay; (3) probation officers consider collecting LFOs as a distraction from their true mission of public safety; and (4) both probationers and probation officers question the purpose, effectiveness, and fairness of monetary sanctions in Georgia. This Article concludes with a discussion of reforms to date and further options for reform based on the findings from this research. 

Georgia Law Rev. 2020 ; 54(4): 1213–1234 

By Tyler Giles

This paper estimates the government revenue, recidivism, and financial health effects of an increase in misdemeanor fines/fees. I leverage a statutory change in Milwaukee whereby convicted defendants were assessed an average additional $279 if sentenced after a certain date. Exploitation of this date in a regression discontinuity design reveals that about 28 cents of each additional dollar charged was eventually collected, often through the automatic application of posted cash bail to court debt. The increase in fines/fees increased the likelihood of felony recidivism, especially among Black defendants, but had no effect on credit score or other credit report outcomes.

Working paper, 2023. 75p

By Keith Finlay, Matthew Gross, Carl Lieberman, Elizabeth Luh and Michael Mueller-Smith

We estimate the impact of financial sanctions in the U.S. criminal justice system using nine distinct natural experiments across five states. These regression discontinuities capture a range of enforcement levels ($17–$6,000) and institutional environments, providing robust causal evidence and external validity. We leverage survey and administrative data to consider a variety of short and long-term outcomes including employment, recidivism, household expenditures, spousal spillovers, and other self-reported measures of well-being. We find consistent, robust evidence of precise null effects on the population, including ruling out long-run impacts larger than -$347–$168 in annual earnings and -0.002–0.01 in annual convictions. 

Unpublished paper, 2023. 60p.

By Samuel Norris and Evan K. Rose

Many jurisdictions levy sizable fines and fees (legal financial obligations, or LFOs) on criminal defendants. Proponents argue LFOs are a “tax on crime” that funds courts and provides deterrence; opponents argue they do neither. We examine the fiscal implications of lowering LFOs. Incentives to default generate a “Laffer” curve with revenue eventually decreasing in LFOs. Using detailed administrative data, however, we find few defendants demonstrably on the right-hand side of the curve. Those who are tend to be poor, Black, and charged with felonies. As a result, decreasing LFOs for the average defendant would come at substantial cost to governments.

NBER Working Papers 31806, Cambridge, MA: National Bureau of Economic Research, Inc., 2023. 39p.

By Ebony L. Ruhland, Amber A. Petkus, Nathan W. Link, Jordan M. Hyatt, Bryan Holmes, and Symone Pate

Abstract:

The assessment and collection of monetary sanctions (fines, fees, and restitution) have become a common element of the U.S. criminal justice system, especially in community corrections. Although the application of monetary sanctions is often dictated by state-level legislation, court rules, and agency policy, little research has sought to organize and systematically examine a set of these policies to compare them across several community corrections contexts more broadly. As such, this study fills a gap in the literature by using thematic content analysis to examine legislative policies governing the use of monetary sanctions in six states from across the United States. Laws and policies regarding the assessment, waiver, and collection of monetary sanctions utilized by agencies of varying size and jurisdictional scope were considered to identify common themes. We conclude with a discussion of whether the policies and laws examined align with rehabilitative and punitive goals of community supervision and highlight emerging opportunities for research and policy reform.

Journal of Contemporary Criminal Justice, 37(1), 108-127.

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.