By Caroline Cohn, Margaret Love, et al. - National Consumer Law Center, Inc. and Collateral Consequences Resource Center

For the nearly one-third of adults in the U.S. with a record of arrest or conviction, their record is not simply part of their past but a continuing condition that impacts nearly every aspect of their life. Their record makes it hard to get a job and support a family, secure a place to live, contribute to the community, and participate fully in civic affairs.

In recent years, most states have passed laws aimed at restoring economic opportunity, personal freedoms, and human dignity to millions of these individuals by providing a path to clear their record. But for too many, this relief remains out of reach because of monetary barriers, including not only the cost of applying for record clearing but also the requirement in many jurisdictions that applicants satisfy debt incurred as part of the underlying criminal case before they can have their record cleared. This can be a high bar: the total amount of fines and fees can run to thousands of dollars for even minor infractions and can be considerably higher for felonies.

People prevented from clearing their record because they cannot afford to pay are usually those most in need of relief. And, perversely, because a record significantly impairs economic opportunity, having an open record makes it harder to pay off fines and fees and therefore harder to qualify for record clearing. This burden falls especially heavily on Black and Brown communities, which are more likely to have high concentrations of both criminal records and poverty because of structural racism in criminal law enforcement and in the economy. Ability-to pay tests and similar waiver approaches to reduce or eliminate monetary barriers to record clearing have been shown to be poor safeguards in many contexts.

FINDINGS: NATIONWIDE SURVEY OF COURT DEBT AS A BARRIER TO CLEARING A CONVICTION RECORD

This report explores the extent to which restricting access to record clearing based on outstanding criminal fines, fees, costs, and restitution—collectively known as “court debt”—may prevent poor and low-income people from getting a second chance. After surveying research on the importance of record clearing and the mushrooming financial burdens imposed on criminal defendants, it analyzes the extent to which outstanding court debt is a barrier to record clearing under the laws of each of the 50 states, the District of Columbia, and the federal system. Our study focuses in particular on generally applicable statutory authorities for clearing adult criminal convictions; it excludes record-clearing authorities available for other categories of records (e.g., non-conviction records) or for specific categories of individuals (e.g., victims of human trafficking).

We found considerable variation and complexity in how jurisdictions treat outstanding court debt in the context of conviction record clearing. We identified six general categories into which jurisdictions fall, and we analyzed the specific details of each jurisdiction’s law.* The map below shows how we categorized each state, with a legend describing in general terms the criteria for inclusion in each category.

Our research revealed the following:

• In almost every jurisdiction, outstanding court debt is a barrier to record clearing in at least some cases, either rendering a person entirely ineligible for record relief or making it difficult for them to qualify for this relief.

• At the same time, however, only 6 of the 50 states require payment of all court debt in order to qualify for record clearing—evidence that most state policymakers do not think that all court debt should have to be paid off for an individual to benefit from record clearing.

• While some of the states that have enacted automatic record-clearing laws do not restrict eligibility based on outstanding court debt, others do, such that making record-clearing automatic does not necessarily obviate this monetary barrier.

• In many states it is difficult to determine the relevance of outstanding court debt in the record-clearing context, and even more difficult to predict whether a person with outstanding court debt will be successful in obtaining relief. This uncertainty makes it difficult both to understand eligibility for record clearing and to successfully navigate the application process, and it creates the potential for inconsistencies in how the law is applied and who obtains relief.

Although this report focuses on how court debt operates as a barrier to record clearing for those without the means to pay, it also describes the variety of filing and administrative fees that often must be paid to apply for record clearing. The high cost of application also creates a barrier to a fresh start

RECOMMENDATIONS

Based on our research, we offer the following recommendations:

1. Court debt should never be a barrier to record clearing: Qualification for record clearance should not be conditioned on payment of court debt, and outstanding court debt should not be a basis for denying relief, regardless of whether record clearing is petition-based or automatic.

2. Application-related costs, including filing fees, should never be a barrier to record clearing: States should adopt automatic record-clearing processes that do not require individuals to incur costs to have their records cleared. States with petition-based record clearing should not require people seeking relief to pay any filing fees or other costs to submit a petition or to obtain or effectuate relief.

3. Jurisdictions should collect and report data on monetary barriers to record clearing: Jurisdictions where record clearing may be denied on the basis of outstanding court debt should collect and report data reflecting the impact of these barriers on record clearing. Jurisdictions should also collect data reflecting the impact of filing fees and other application-related costs on obtaining relief

National Consumer Law Center, Inc. and Collateral Consequences Resource Center 2022. 62p.

By Michele Cadigan and Gabriela Kirk

Research on court-imposed monetary sanctions has not yet fully examined the impact that processes used to manage court debt have on individuals’ lives. Drawing from both interviews and ethnographic data in Illinois and Washington State, we examine how the court’s management of justice-related debt affect labor market experiences. We conceptualize these managerial practices as procedural pressure points or mechanisms embedded within these processes that strain individuals’ ability to access and maintain stable employment. We find that, as a result, courts undermine their own goal of recouping costs and trap individuals in a cycle of court surveillance.

RSF: The Russell Sage Foundation Journal of the Social Sciences March 2020, 6 (1) 113-131; DOI: https://doi.org/10.7758/RSF.202

By Johann D. Gaebler ,Phoebe Barghouty,Sarah Vicol,Cheryl Phillips,Sharad Goel

In almost every state, courts can jail those who fail to pay fines, fees, and other court debts—even those resulting from traffic or other non-criminal violations. While debtors’ prisons for private debts have been widely illegal in the United States for more than 150 years, the effect of courts aggressively pursuing unpaid fines and fees is that many Americans are nevertheless jailed for unpaid debts. However, heterogeneous, incomplete, and siloed records have made it difficult to understand the scope of debt imprisonment practices. We culled data from millions of records collected through hundreds of public records requests to county jails to produce a first-of-its-kind dataset documenting imprisonment for court debts in three U.S. states. Using these data, we present novel order-of-magnitude estimates of the prevalence of debt imprisonment, finding that between 2005 and 2018, around 38,000 residents of Texas and around 8,000 residents of Wisconsin were jailed each year for failure to pay (FTP), with the median individual spending one day in jail in both Texas and Wisconsin. Drawing on additional data on FTP warrants from Oklahoma, we also find that unpaid fines and fees leading to debt imprisonment most commonly come from traffic offenses, for which a typical Oklahoma court debtor owes around $250, or $500 if a warrant was issued for their arrest.

PLoS One. 2023; 18(9): e0290397.

By Colleen Chien, Alexandra George, Srihari Shekhar, and Robert Apel

As states pass reforms to reduce the size of their prison populations, the number of Americans physically incarcerated has declined. However, the number of people whose employment and related opportunities are limited due to their criminal records continues to grow. Another sanction that curtails economic opportunity is the loss of one’s driver’s license for reasons unrelated to driving. While many states have “second chance” laws on the books that provide, e.g. expungement or driver’s license restoration, a growing body of research has documented large “second chance gaps” between eligibility and delivery of relief due to the poor administration of second chance relief. This paper is a first attempt to measure the cost of these “paper prisons” of limited economic opportunity due to expungable records and restorable licenses, in terms of annual lost earnings. Analyzing the literature, we estimate the annual earnings loss associated with misdemeanor and felony convictions to be $5,100 and $6,400, respectively, and that of a suspended license to be $12,700.

We use Texas as a case study for comparing the cost (in terms of lost earnings) of the state’s “paper prisons” – living with sealable records or restorable licenses – with the cost of its physical prisons. In Texas, individuals with criminal convictions may seal their records after a waiting period. But analyzing administrative data, we find that approximately 95% of people eligible for relief have not accessed it. This leaves 670,000 people in the “second chance sealing gap” eligible for but not accessing second chance relief, translating into an annual earnings loss of about $3.5 billion. Similarly, people that have lost driver’s licenses are entitled to get their licenses restored under the law (in the form of “occupational driver’s licenses,” or “ODLs”) in order to drive to work or school. But using a similar approach, we find that about 80% of the people that appear eligible for restored driver’s licenses in Texas have not received them. This translates into about 430,000 people who needlessly lack licenses and a lower-bounds earnings loss of about $5.5 billion. Based on these figures, we find the cumulative annual earnings loss associated with Texas’s “paper prisons” of limited economic opportunity due to lost but restorable licenses and convictions records eligible for sealing to be comparable with, and likely more than, the yearly cost to Texas of managing its physical prisons of around $3.6 billion.

64 ARIZ. L. REV. 675 (2022). Santa Clara Univ. Legal Studies Research Paper

By Nino C. Monea

ABSTRACT In 1776, only two states offered constitutional protections against imprisoning people for debt. Today, forty-one states do. This Article traces that history. It begins by examining how debtors’ prisons operated in early America, and then divides analysis between three phases of state constitutional activity. In so doing, it looks at the arguments that won over states to protect debtors, the state constitutional conventions that enacted protections, and the failure of the federal government to address the issue. The Article concludes by noting that despite the success of adopting constitutional protections, courts have allowed debtors’ prisons to resurge in modern times.

DREXEL LAW REVIEW [Vol. 14:1, 2022.

By Lindsay Bass-Patel and Angie Weis Gammell

Courts across the country, including those in North Carolina, impose financial obligations on people when they are convicted of a crime or infraction. These court imposed financial obligations include fines, a form of financial punishment, and fees, which fund government services. North Carolina has increased its reliance on fines and fees as a revenue source over the past 20 years. 1 This practice harms many North Carolinians and is also an inefficient financial strategy for the state. In the past decade, other states have begun to reevaluate their use of fines and fees. North Carolina can find guidance from states like Louisiana, which has eliminated fees for juveniles, and Georgia, which has enacted guidelines to determine a person’s ability to pay before imposing fines or fees. Fines and fees disproportionately impact poor people and people of color, and in so doing, burden them with paying for government services that support all members of society. North Carolina courts often impose fines and fees without considering a person’s ability to pay them. When a person does not have the financial means to pay, they face difficult, perilous choices. These choices result in some people paying fines or fees rather than buying groceries or medicine; some people losing their driver’s license for not paying the fines or fees; and some people being taken to jail for failing to pay even when the original infraction had no risk of jail time. 2 Furthermore, fines and fees are an unreliable and ineffective revenue source. The time and resources spent trying to collect court fines and fees can cost more than the money collected. 3 The North Carolina Administrative Office of the Courts (“AOC”) does not publicly share information on the total amount of fines and fees imposed or outstanding. Instead, the publicly shared financial data shows the amount people pay to the Clerks of Superior Court. According to this information, the state recouped $204.9 million in fiscal year 2020-2021 from fines and fees in criminal cases, which constituted only 0.3% of the state’s revenue for that year. 4 North Carolina must examine its use of fines and fees, including the harm it has on residents, their families, and their communities; eliminate fees; and reduce fines imposed in criminal court.

Durham, NC: Wilson Center for Science and Justice at Duke Law, 2023. 36p.

By Briana Jones & Laura Goren

Virginia can be a place where every young person has the support and resources to reach their full potential and where young people who get into trouble are helped to get back on the right track. Unfortunately, currently in Virginia, the youth court system frequently imposes fines and fees on troubled young people and their families, placing additional barriers in their path. This creates long-standing harm for children who enter the system and their families, with Black teenagers most often being swept into the youth criminal legal system and therefore facing the greatest financial and family harms. Analyses of these economic and social impacts of fines and fees on Black and Brown teenagers highlight the pressing challenges these children and their families can face and offer alternative measures that could better help youth who encounter the juvenile justice system.

Richmond, VA: The Commonwealth Institute, 2022. 6p

By Daniel A. Pizarro

Neoliberalism alters U.S. carceral practices to extract revenue from marginalized communities. The criminal-legal system made monetary sanctions (e.g., cash bail, traffic fines, probation fees) a common practice that affects the millions of people who cycle through the system. I argue that criminal-legal debt extends punishment outside of carceral structures and creates a “revolving door” effect in which poor, racialized communities are subjected to constant incarceration. Domestic violence cases in Atlanta are a prime example of this phenomenon and illustrates the ways in which incarceration aids neoliberalism. The over policing of minority communities, and by extension the imposition of monetary sanctions, in metro-Atlanta serves to generate revenue and gentrify those neighborhoods. Through a prison abolitionist lens, this research explores the impact of criminal-legal debt in metro-Atlanta through autoethnography, interviews, and online participant observation of court. (Thesis)

Atlanta: Georgia State University, 2023. 161p.

By The American Bar Association, Standing Committee on Legal Aid and Indigent Defense and Arnold Ventures

For some people in New Mexico, a $100 fee could be paid the same day with little thought. For most New Mexicans, however, $100 is a significant percentage of monthly income, and payment might require the person to forego groceries or diapers or miss a car or rent payment.1 Despite these differences, in administering court fines and fees, New Mexico courts fail to adequately distinguish between those with the ability to pay and those for whom payment causes grave hardship. Far too often the result is the incarceration of those unable to pay in violation of Bearden v. Georgia. 2 The American Bar Association (ABA) has developed extensive policies to provide guidance to jurisdictions on how to fairly administer court fines and fees to ensure that individuals are not punished simply for being poor. In 2018, the ABA adopted the Ten Guidelines on Court Fines and Fees, which urge jurisdictions to eliminate or strictly limit user fees (Guideline 1), ensure timely and fair assessment of ability to pay (Guideline 4 & 7), waive or reduce fines and fees based on ability to pay (Guidelines 1 & 2), refrain from using driver’s license suspensions or other disproportionate punishments for nonpayment (Guideline 3), allow individualized alternatives to monetary penalties (Guideline 6), and provide counsel for individuals facing incarceration as a consequence of failure to pay (Guideline 8). To understand the administration of fines and fees in New Mexico’s misdemeanor courts, a team from the ABA Standing Committee on Legal Aid and Indigent Defense (ABA SCLAID) conducted court observation of the state’s Metropolitan, Magistrate, and Municipal Courts over a four-year period from 2018 to 2022. These observations revealed that New Mexico courts routinely fall short of ABA standards. Some of the study’s key observations include: • New Mexico courts assess a wide variety of fees, not just upon conviction, but also pretrial, for supervision, and in connection with bench warrants. Many of these are user fees. • New Mexico rules do not provide for timely assessment of ability to pay, nor do they provide adequate opportunities for reductions or waivers based on substantial hardship. • Current “ability to pay” assessments only allow an individual to adjust payment plans usually to make smaller monthly payments for longer periods, which increases opportunities for failure to pay and extends the individual’s involvement with the criminal justice system. • Bench warrants are routinely issued for failure to appear and, in addition to being subject to arrest, the individual is charged a $100 fee, and his/her driver’s license is suspended. • Unpaid fees often result in further bench warrants, with accompanying fees, exacerbating the cycle of bench warrants, arrests, and debt. • When arrested on a bench warrant for failure to pay, individuals are jailed without a finding that the failure to pay was willful.

• Judges rarely reduce or waive fines or fees unless the individual first serves time in jail. • The “payment” of fines and fees through credit for jail time is common. These fines and fees result in little, if any, financial benefit to New Mexico. A case study of individuals who were arraigned in Bernalillo County (Albuquerque) Metropolitan Court (incustody) during a one-week period in 2017 showed that 93% “paid” their fines and fees exclusively through incarceration, while only 3% actually paid their fines and fees in full. A similar one-week study of 2021 cases showed that incarceration remains the dominant form of “payment” (73% of individuals satisfied at least a portion of their fines and fees with jail time), while a similarly small percentage of individuals (4%) paid their fines and fees in full.3 To comply with ABA policies, New Mexico should consider: • Eliminating or reducing court fees, particularly user fees; • Revising procedures to ensure prompt consideration of ability to pay at the time fees or fines are imposed; • Ensuring that those for whom payment would cause substantial hardship have access to waiver or reduction of fees; • Improving the hearing notice process and increasing second-chance opportunities before bench warrants issue for failure to appear; • Discontinuing driver’s license suspension as a consequence of nonpayment; • Ensuring that individuals cannot be jailed for nonpayment until after an ability to pay hearing and a finding that the failure to pay was willful; • Guaranteeing counsel for any indigent individual facing incarceration for failure to pay; and • Improving alternative payment options and ensuring that those options are personalized and account for each individual’s circumstances. By adopting the recommendations of this report, New Mexico courts can bring their practices into compliance with not only with ABA policy, but also with the requirements of the U.S. Constitution. For this reason, New Mexico should consider reforms to improve its fine and fees procedures and ensure that its criminal justice system does not punish individuals simply for being poor.4

Chicago: ABA, 2023. 67p.

By Judith Resnick, et al.

n the last decades, growing numbers of people have sought to use courts, government budgets have declined, new technologies have emerged, arrest and detention rates have risen, and arguments have been leveled that private resolutions are preferable to public adjudication. Lawsuits challenge the legality of fee structures, money bail, and the imposition of fines. States have chartered task forces to propose changes, and new research has identified the effects of the current system on low-income communities and on people of color. The costs imposed through fees, surcharges, fines, and bail affect the ability of plaintiffs and defendants to seek justice and to be treated justly.

This volume, prepared for the 21st Annual Arthur Liman Center Colloquium, explores the mechanisms for financing court systems and the economic challenges faced by judiciaries and by litigants. We address how constitutional democracies can meet their obligations to make justice accessible to disputants and to make fair treatment visible to the public. Our goals are to understand the dimensions of the problems, the inter-relationships among civil, criminal, and administrative processes, and the opportunities for generating the political will to bring about reform.

Yale Law School, Public Law Research Paper No. 644. New Haven, CT: Yale Law School, 2020. 223p

Wilson Center for Science and Justice and the Fines and Fees Justice Center

Ability to Pay, Collateral Consequences, Courts as Revenue Centers, Racial Disparities, Traffic Fines and Fees . Court-imposed debt impacts working families across all racial groups, political affiliations, and income levels. In the past ten years, a third of Americans have been directly affected by fines or fees related to traffic, criminal, juvenile, or municipal court. This report is the first national survey to examine how court-imposed fines and fees affect individuals and families. Researchers found that fines and fees debt creates hardships in people’s daily lives. Many respondents reported experiencing serious hardship, being impacted in three or more aspects of daily life.

Wilson Center for Science and Justice and the Fines and Fees Justice Center . 2023. 40p.

By Cristina Mendez, Jeffrey Selbin and Gus Tupper

In 2019, the Idaho Legislature’s Office of Performance Evaluations (OPE) published a report acknowledging Idaho’s reliance on fines and fees as a source of court funding. According to the report Idaho residents owed a total of more than $268 million in delinquent court debt. In this article, the authors further examine the state’s reliance on monetary sanctions, focusing on fees in the juvenile delinquency system, and recommending a pathway to ending the harmful impact of monetary sanctions.

57 Idaho L. Rev. (2021).

By Viet Nguyen

Criminal records can produce collateral consequences that affect access to employment, housing, and other outcomes. Adverse collateral consequences may be particularly acute for adults with limited professional capital and social networks. In recent years, there has been an expansion of prosecutor-led diversion programs that attempt to curb the effect of collateral consequences. However, the expansion of diversion programs may lead to net-widening if these programs simply substitute for cases that would have otherwise been dismissed. This study assesses the impact of an adult, misdemeanor diversion program on long-term recidivism outcomes and the future amount of court-imposed fees and sanctions. The misdemeanor diversion program reduced reconviction rates but produced a short-term net-widening effect by drawing in defendants whose cases would normally have been dismissed. The net-widening effects were curtailed over the longer term as the program significantly increased expungement rates. The results were driven by younger defendants. Implications of this study for theories of criminal desistance and policies around expunging criminal records are discussed.

Philadelphia: Working Paper, University of Pennsylvania, Criminology2022. 43p.

By Briana Hammons

Considerable research has uncovered the financial burden and unintended consequences wreaked on the people charged with paying fines and fees. But there has been little, if any, investigation into how much court debt is outstanding or delinquent nationwide. Understanding the full scope of our nation’s criminal justice debt problem is vital to the task of creating an equitable justice system. In an effort to obtain this critical information, the Fines and Fees Justice Center contacted judicial offices and government agencies in all 50 states and the District of Columbia that might have data related to outstanding court debt. We chose to focus our investigation on court debt because courts keep a record of every case, and those records should specify the amount of fines and fees imposed at conviction. We assumed that courts routinely aggregated this data, allowing them to determine the amount of fines and fees assessed. We also assumed that courts would track how much of those fines and fees were actually collected. But for half the country, that is not the case. What this means is that the full extent of our nation’s problem with court debt is shockingly untraceable and unknown. Reliable and current data is necessary to develop informed and effective public policy, and it is a vital tool to accurately judge the efficacy of a particular program and existing practices. In order to intelligently assess policy solutions, we need a complete view of every state’s court debt including, the total amount of fines and fees imposed, assessed, collected, and outstanding and data about the people who owe

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  fines and fees, including eligibility for a public defender or public benefits and charges for which the debt was imposed.

New York: Fines & Fees Justice Center, 2021. 34p.