By Ammar Khalid, Rochisha Shukla, Arielle Jackson, and Andreea Matei

Pima County, Arizona, has implemented multiple reforms to address probation-related drivers of jail incarceration through its participation in the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge, including strengthening transitional housing support intended to provide short-term housing options for people experiencing housing instability. The Urban Institute conducted a study, in partnership with the Pima County Adult Probation Department, to describe probation pathways to jail incarceration and system-level trends, as well as the effects of providing transitional housing support to people on probation, particularly in terms of jail use.

WHY THIS MATTERS

Many jurisdictions across the country have implemented strategies to reduce jail incarceration for people on probation because probation violations contribute significantly to rising jail populations in the United States: 33 percent of all people incarcerated in jails were arrested while on probation, and 27 percent of the people in jails for probation violations were incarcerated for technical violations alone. Housing instability can heighten the risk of criminal legal system involvement, particularly for people on probation.

WHAT WE FOUND

Our main takeaways include the following:

Roughly 10 percent of all jail bookings in Pima County were due to probation violations, representing an overall low share of jail admissions. However, average length of stay for people in jail for probation violations was considerably longer at 66 days, nearly three times as long as that for the pretrial population (25 days) and five times as long as that for the sentenced population (13 days).

Probation violations resulting in jail incarceration represented 16 percent of all terminated probation cases and were largely driven by technical violations, which include absconding charges.

There were some observable racial and ethnic disparities in jail use as a formal probation revocation petition outcome. Native American and Hispanic people had higher odds—by 97 percent and 46 percent, respectively—of being revoked to jail compared with white people. Black people were 24 percent more likely to receive coterminous outcomes compared with white people.

Between January 2020 and June 2022, 331 people received financial assistance to access transitional housing. The number of people receiving assistance increased over time and the probation department prioritized people with higher risk and needs when making decisions about funding for transitional housing.

The odds of a probation termination to jail were not significantly different for people who received funding for transitional housing and those who did not. These null effects, however, could owe to the small number of people served and the limited data available on people who received transitional housing support. Interviewed stakeholders, though, perceived this support for people on probation to be a crucial stabilizing force and extremely meaningful to their well-being.

Washington, DC: Urban Institute, 2023. 63p.

By Erin Harbinson, Kelly Lyn Mitchell, Courtney Hougham, and Danette Buskovick

This report details a collaboration between the Robina Institute of Criminal Law and Criminal Justice (the Robina Institute) and Hennepin County Department of Community Corrections and Rehabilitation (DOCCR) to examine whether probation conditions are aligned with evidence-based practices in corrections, specifically the risk-needs-responsivity (RNR) principles (i.e., Andrews, Bonta, & Hoge, 1990) for community supervision, and to explore the effect of alignment on supervision outcomes. This project was conceived in order to test whether there is a need to bridge the sentencing process with the RNR principles followed by DOCCR. Research suggests that in order to reduce re-offending, probation conditions should reflect RNR principles and that over-supervising low risk individuals can increase recidivism (Lowenkamp, Latessa, & Holsinger, 2006). But because sentencing often occurs before the risk assessment has been completed, the probation conditions imposed at sentencing may not relate to the probationer’s risk and needs, or may require a higher degree of contact and intervention by the corrections department than suggested by the probationer’s risk to reoffend. Since Hennepin prepares a presentence investigation (PSI) for some cases and administers a pre-screener for others, this practice provides a natural “experiment” to explore how assessment might influence conditions. The project explored the relationship between the sentencing process and RNR principles by asking the following three questions: 1. How well do the risk/needs of offenders align with probation conditions? 2. Does the timing of assessment impact this alignment? 3. Are supervision outcomes improved when conditions are aligned with risk/needs? Key Findings The key findings from this study were as follows: • Most people on probation were assigned a similar number of conditions and similar types of conditions; there was not much variation. • The average number of probation conditions assigned to people on probation increases with risk, but only slightly. This increase ranged from less than one condition to one condition per increase in risk level. • People who received a PSI have on average approximately 5 more conditions assigned at each risk level when compared to people who did not receive a PSI. • A majority of the supervision conditions people were assigned did not target their criminogenic needs. Ø However, most people who had identified needs in the drugs and alcohol domain were assigned probation conditions that aligned with that need, though alignment was better when a PSI was conducted before sentencing Ø The majority of people who had identified needs in the family/marital, leisure and recreation, companions (criminal vs. anticriminal), and antisocial pattern were not assigned probation conditions that align with those needs. Ø When a PSI was not administered, the majority of people who had identified needs in pro-criminal attitudes and orientation were not assigned probation conditions that align with that need; when a PSI was administered, a more substantial proportion of individuals with this need were assigned such a condition. Ø When there is better alignment between needs and supervision conditions, it appears to be associated with the administration of a PSI, and to be driven by the assignment of conditions to address the domains for alcohol and drugs, education and employment, and pro-criminal attitude and orientation. • Improved alignment of supervision conditions with risk and needs did not significantly reduce the likelihood of reconviction one year out, however, more research is needed on measuring alignment since this non-significant finding might be due to the small variation in the number of conditions by risk level.

Minneapolis: Robina Institute of Criminal Law and Criminal Justice University of Minnesota Law School 2020. 36p.

Kelly Lyn Mitchel, Erin Harbinson and Julia Laskoruns

This report examines the role of prosecutors in the Ramsey County Attorney’s Office in influencing the contours of felony probation sentences. The main target of this study was to determine how prosecutors view and influence the length of probation, but the study also included an examination of the other key components of a felony probation sentence, namely the probation type (stay of imposition versus stay of execution) and conditions of probation, as well as the role of prosecutors in the probation violation process.

Minneapolis: University of Minnesota Robina Institute of Criminal Law and Criminal Justice. 2020. 49p.

By Sino Esthappan and Janine Zweig

Probation plays a critical role in the juvenile justice (JJ) system, but the absence of clear intended outcomes for youth who are justice involved might contribute to the unnecessary use of judicial dispositions to probation and out-of-home placement, as well as to high rates of recidivism. In this brief, we describe findings from a developmental evaluation of the Annie E. Casey Foundation’s (the Foundation’s) expansion of the Juvenile Detention Alternatives Initiative® to the deep end of the JJ system. Through its deep-end work, the Foundation aims to safely and significantly reduce the use of out-of-home placements for youth, especially youth of color. The findings in this brief build on those presented in Keeping Youth Out of the Deep End of the Juvenile Justice System: A Developmental Evaluation Overview of the Annie E. Casey Foundation’s Deep-End Reform, which provides an overview of the evaluation of the deepend reform and its findings (appendix A provides details on the methods used for the evaluation). Qualitative and quantitative data collection occurred between April 2014 and August 2018. In addition, the Foundation provided additional supports to two deepend sites—Lucas County, Ohio, and Pierce County, Washington—as part of their probation transformation focus (the Foundation details the rationale for this work in a 2018 report)

Washington, DC: Urban Institute, 2020. 11p.

By Karin D. Martin, Bryan L. Sykes, Sarah Shannon, Frank Edwards, and Alexes Harris

This review assesses the current state of knowledge about monetary sanctions, e.g., fines, fees, surcharges, restitution, and any other financial liability related to contact with systems of justice, which are used more widely than prison, jail, probation, or parole in the United States. The review describes the most important consequences of the punishment of monetary sanctions in the United States, which include a significant capacity for exacerbating economic inequality by race, prolonged contact and involvement with the criminal justice system, driver’s license suspension, voting restrictions, damaged credit, and incarceration. Given the lack of consistent laws and policies that govern monetary sanctions, jurisdictions vary greatly in their imposition, enforcement, and collection practices of fines, fees, court costs, and restitution. A review of federally collected data on monetary sanctions reveals that a lack of consistent and exhaustive measures of monetary sanctions presents a unique problem for tracking both the prevalence and amount of legal financial obligations (LFOs) over time. We conclude with promising directions for future research and policy on monetary sanctions.

Annu. Rev. Criminol. 2018. 1:471–95

Day Fines Systems: Lessons from Global Practice

By Fair Trials

Many European countries use day fines as an alternative to short-term incarceration. With day fines, fines are proportional to a defendant’s income, allowing for higher fines for wealthy offenders and serious offenses. This report details the scope of day fines in different justice systems, how ability to pay is determined, and the impact on indigent defendants. Fair Trials used a mix of desk research, survey and interviews of criminal defense attorneys, and public information requests to research the use of day fines in Austria, Hungary, Finland, France, Poland, Spain, Sweden, England, and Wales. Findings suggest it is possible to administer a day fines system without reliance on incarceration for non-payment, but these systems have typically been adopted alongside other reforms aimed at reducing incarceration. The author proposes using day fines in the U.S. to make fine setting fairer.

Key Findings:

• Police in Finland have access to tax records, allowing them to make on-the-spot assessments of the ability to pay during simple traffic stops.

• Imprisonment for non-payment is only available following a trial in Finland, and the sentence may range from four to 60 days.

• Only four percent of people sentenced to a fine ended up in prison for non-payment in Spain.

• 58 percent of convictions in Sweden are sentenced to day fines, primarily for minor drug offenses, small theft, traffic offenses, and drunk driving.

• Austria determines the ability to pay based on personal circumstances and the economic capacity of the defendant.

• In France, seizure of property is a more common tool for enforcement for those who fail to pay their fines than incarceration.

• In 2016, 34 percent of convictions were sentenced to

• a fine in Poland.

Brussels; London; Washington, DC: Fair Trials, 2020. 40p.

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 Vittorio Nastasi

Across the country, state and local governments use court fines and fees as a source of revenue to fund public services. Individuals may be charged fines and fees for any criminal or civil infraction, but outstanding court debts overwhelmingly stem from traffic citations. This “taxation by citation” is not only a threat to individual liberty, but can also undermine public safety and result in fiscal instability. While fines and fees are often discussed in tandem, their purposes and legal implications differ. Fines are imposed upon conviction and are primarily intended to deter and punish crimes or municipal code violations. They are usually set in statute and vary depending on the severity of an offense. Fines are appropriate and beneficial when used as an intermediate form of punishment in place of incarceration.1 However, fines are commonly used in addition to incarceration, rather than being an alternative. Fees, on the other hand, are solely intended to raise revenue. They essentially shift the costs of the justice system away from taxpayers and onto defendants. These “user fees” are imposed by state and local governments to charge individuals for the cost of their constitutional right to due process. Various court fees add to—and often exceed—the initial fine charged for an offense. Common examples of fees include court-appointed attorney fees, supervision fees, administrative fees, jury fees, and drug testing fees. When individuals are unable to pay fees in a timely manner, they can face additional “poverty fees” in the form of late fees, collection fees, and payment plan fees.2 Typically, revenue derived from fines and fees is used to fund court operations, including salary and personnel costs. However, some governments rely on courts to generate revenue for other services as well. In some cases, the revenue is earmarked for a specific purpose related to traffic safety or law enforcement. In others, it goes to a government’s general fund or to purposes wholly unrelated to the justice system. In the case of traffic tickets in Florida, most of the revenue generated stays with the local government that issued the citation. Some of the money is also distributed to the state for general revenue and a variety of state trust funds and programs, including: • Emergency Medical Services • Brain and Spinal Cord Rehabilitation • Florida Endowment for Vocational Rehabilitation • Child Welfare Training • Juvenile Justice • Foster Care Citizen Review Panel • State Criminal Justice Programs3 While funding for the state court system is constitutionally required to come from state revenues appropriated by general law, a large share of funding for the state’s clerks of courts is provided by filing fees, service charges, and court costs that are collected from individuals when they interact with the court system. Consequently, the clerks of courts in Florida get much of their revenue from traffic enforcement. There are two main problems with using fines and fees for government revenue: (1) they impose disproportionate burdens on low-income individuals and (2) they are not a stable or reliable source of revenue.

Tallahassee, FL; James Madison Institute, 2022. 6p.

By Nicholas Goldrosen, Christian Michael Smith, Maria-Veronica Ciocanel, Rebecca Santorella, Shilad Sen, Shawn Bushway, Chad M. Topaz

Substantial race-based disparities exist in federal criminal sentencing. We analyze 380,000 recent (2006–2019) sentences in the JUSTFAIR database and show that these disparities are large and vary considerably across judges. Judges assign White defendants sentences 13% shorter than Black defendants' and 19% shorter than Hispanic defendants' sentences, on average, conditional on case characteristics and district. Judges one standard deviation above average in their estimated Black-White disparity give Black defendants sentences 39% conditionally longer than White defendants' sentences, vis-à-vis average disparity of 13%. Judges one standard deviation above average in their estimated Hispanic-White disparity give Hispanic defendants sentences 49% conditionally longer than White defendants' sentences, compared to the average disparity of 19%.

Journal of Institutional and Theoretical Economics, Volume 179, Issue 1, pages 92–113 (March 2023)

By Richard S. Frase

Sentences to probation and other community-based sentences require backup sanctions to encourage compliance with the conditions of probation and respond to violations of those conditions. The most severe backup sanction in felony cases in the United States is revocation of release and commitment to prison. But such revocations have been a major contributor to mass incarceration;1 moreover, such revocations can result in offenders whose crimes do not justify a prison sentence being sent to prison—the problem of “net-widening.”2 Legal systems have taken a variety of approaches in structuring backup sanctions for probation violations, particularly custodial sanctions. This article surveys and critiques two kinds of suspended prison sentences frequently used as backup sanctions in U.S. state and federal guidelines systems, and a third option that employs more limited custodial backup sanctions. When a court employs the first type of suspended sentence—a suspendedexecution prison sentence (SEPS)—it first imposes a specified prison term and then suspends some or all of that term and places the offender on probation with specified conditions. If the offender violates those conditions, the court has the option of executing the suspended prison term, usually with minimal hearing or other procedural requirements. In some systems, the court may also choose to execute only part of the suspended prison term. By contrast, the second type of suspended sentence—suspended imposition of sentence (SIS)—involves a form of deferred sentencing: the court places the offender on probation without making any decision about what specific prison term should be imposed for the crime or crimes for which the offender has just been convicted. In the event that the conditions of probation are violated, the court holds a formal sentencing hearing, with all of the procedural requirements of such a hearing, and may then impose any sentence that could have been imposed when the SIS was first pronounced. Under the third option noted above, local jail terms are used to sanction probation violations. This takes two forms. In the first, although probation is combined with a suspended-execution or suspended-imposition sentence that could be revoked, courts are encouraged to use jail terms to sanction probation violations. In the second, probation is imposed as a free-standing sentence with only non-prison custodial backup sanctions, rather than as a condition of a SEPS or SIS sentence. Under this approach the option of commitment to prison is off the table once the court places the offender on probation.3 Each of the options above has advantages and disadvantages, which will be explored in Part III of this article. Part II provides a survey of the varying ways in which one or more of the options has been used in the nineteen U.S. guidelines systems that are currently in operation

82 Law and Contemporary Problems 51-79 (2019)

By UK Parliament, House of Commons, Justice Committee

This report examines public opinion and understanding of sentencing in England and Wales. We launched our inquiry to explore what the public know about sentencing, how information is accessed and how understanding of sentencing might be improved. As well as examining what the public know about the current approach to sentencing, we also wanted to consider public opinion on sentencing and the extent to which it should inform sentencing policy and practice. As part of this inquiry, we commissioned a public polling exercise. 2,057 adults in England and Wales were asked about their knowledge and views on sentencing. The Committee also worked with Involve, a leading public participation charity, to facilitate a deliberative engagement exercise. 25 adults from England and Wales met over three half-day sessions to discuss the aims of sentencing. The combination of these exercises has provided an invaluable insight into public opinion and understanding of sentencing. In terms of public understanding, both the polling and the public dialogue indicated that a significant portion of the public do not know which bodies are responsible for deciding sentencing policy. Only 22% of respondents to our poll identified that Parliament was responsible for setting the maximum sentence in law for a criminal offence. The participants in the public dialogue indicated that they were unsure which institutions had responsibility for deciding the framework that sentencers apply in individual cases. We are concerned that this can give rise to an accountability gap, whereby the public is unclear as to the Government’s responsibility in relation to sentencing. It is widely recognised that there has been a perceptible hardening of public opinion towards serious crime since the 1990s. Successive governments have increased the maximum sentences for a number of serious offences, often in response to public campaigns arising from individual cases. The polling we commissioned indicated that there is significant public support for increasing the custodial sentences for murder, rape and domestic burglary. For example, 18% of respondents said that the starting point for the most serious rape cases should be a whole life order (the current starting point is 15 years), and 33% said the starting point for the most serious cases of domestic burglary should be a 10-year custodial sentence (the current starting point is three years custody). One of the most striking findings from both the polling and the public dialogue was that one of the most important purposes of sentencing should be to provide justice for the victim. 56% of respondents to our poll ranked “ensuring the victim had secured justice” as one of their top three factors that should influence a sentence. In the public dialogue, there was a consensus that “providing justice for victims” should be a purpose of sentencing, and almost half placed it second in order of priority behind protecting the public. Accordingly, we recommend that the Government should review the statutory purposes of sentencing to consider whether greater emphasis should be placed on achieving justice for the victims of crime and their families. Our overall conclusion is that there is a need for national debate on sentencing. Our inquiry has highlighted that the public debate on sentencing is stuck in a dysfunctional and reactive cycle. There needs to be greater public knowledge and understanding of current sentencing practice, of evidence on the effectiveness of different sentencing options, and the resource implications of sentences in order to improve the quality of public discourse on sentencing. It is incumbent on all policymakers and opinion-shapers to play a role in shaping a more constructive debate and to seek greater consensus on the issues. This Government, and its successors, need to think carefully about how to engage with public opinion on sentencing. There are important choices to be made about how to ascertain public opinion and the extent to which policy should be responsive to public pressure. In our view, the Government should seek to actively engage the public on sentencing policy but should do so in a structured and methodologically rigorous fashion. It should ensure that both traditional polling and deliberative methods are used, and that such exercises occur at regular intervals. Finally, policy proposals on sentencing should be subject to independent evaluation, so that the resourcing implications are evaluated before they are enacted. We recommend that the Government establish an independent advisory panel on sentencing to consider proposed changes to sentencing policy and to provide advice to ministers.

Tenth Report of Session 2022–23 Report, together with formal minutes relating to the report . London: House of Commons, 2023. 71p.

By Hayli Millar, Yvon Dandurand, Vivienne Chin, Shawn Bayes, Megan Capp, Richard Fowler, Jessica Jahn, Barbara Pickering, and Allan Castle

This Overview forms part of a broader project on the Best Interests of the Child in Sentencing and Other Decisions Concerning Parents Facing Criminal Sanctions, made possible through the support of a generous project grant from the Vancouver Foundation. The broader project’s objective is to instigate and support a systemic and cultural change in the way that the best interests of the child are considered by defence counsel, the prosecution and the courts. The ultimate intention is to mitigate the negative impact on the child of a parent facing criminal sanctions, especially when the parent/legal guardian is a primary or sole caregiver. The motivation for this work is the general lack of attention directed towards the best interests of dependent children whose parents are before the criminal courts, despite a wide range of international and regional norms and standards which suggest that domestic criminal courts are obliged to take the rights and best interests of dependent children into account as a primary consideration when making bail and sentencing decisions. This lack of attention persists despite all that is known about the negative influence of parental criminal sentences, and in particular incarceration, on children. This Overview is intended specifically to encourage active consideration of child impact and family impact at time of sentencing and other court decisions, principally by prosecutors and judges but also all those with influence in criminal proceedings, to avoid the potentially negative impacts of those decisions. A broader purpose is to raise awareness about these issues more generally, and to assist the reader in identifying practices which serve to diminish consideration of the best interests of the child, where these exist. More generally, the Overview is intended to influence policy change, to encourage greater availability of non-carceral or community-based alternatives to incarceration for people with parental responsibilities, and to support parents in mitigating the impact of their own sentencing and court order compliance on their children. The recommendations in this Overview are intended to stir productive discussion. Our efforts will have been successful if this document encourages subject matter experts and decision makers holding positions of responsibility in the criminal process to consider how the best interests of the child may most suitably and effectively be incorporated into decisions and orders of the criminal courts.

Vancouver: International Centre for Criminal Law Reform and Criminal Justice Policy, 2023. 56p.

Karin D. Martin, Kimberly Spencer-Suarez, Gabriela Kirk

This article proposes the centrality of procedural integrity—or fidelity to local norms of case processing—to the post-sentencing adjudication of monetary sanctions. We draw on insights gained from observations of more than 4,200 criminal cases in sixteen courts in New York and Illinois and find that procedural integrity becomes a focal point in the absence of monetary sanctions paid in full and on time. This examination of the interplay between the sociolegal context and workgroups within courtrooms brings to light how case processing pressure, mandatory monetary sanctions, defendants with pronounced financial insecurity, and judicial discretion inform the role monetary sanctions play in court operations.

RSF: The Russell Sage Foundation Journal of the Social Sciences January 2022, 8 (1) 128-147; DOI: https://doi.org/10.7758/RSF.2022.8.1.06

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 Christian Traxler and Libor Dusek

We estimate the effect of the level of fines on payment compliance and revenues collected from speeding tickets. Exploiting discontinuous increases in fines at speed cutoffs and reform induced variation in these discontinuities, we implement two complementary regression discontinuity designs. The results consistently document small payment responses: a 10 percent increase in the fine (i.e. the payment obligation) induces a 1.2 percentage point decline in timely payments. The implied revenue elasticity is about 0.9. Expressed in absolute terms, a one dollar increase in the fine translates into a roughly 60 cent increase in payments

Unpublished Paper: (November 19, 2022).

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 Anna VanCleave, Brian Highsmith, Judith Resnik, Jeff Selbin, Lisa Foster

Money has a long history of being used as punishment, and punishment has a long history of being used discriminatorily and violently against communities of color. This volume surveys the many misuses of money as punishment and the range of efforts underway to undo the webs of fines, fees, assessments, charges, and surcharges that undergird so much of state and local funding. Whether in domains that are denominated “civil,” “criminal,” or “administrative,” and whether the needs are about law, health care, employment, housing, education, or safety services, racism intersects with the criminalization of poverty in all of life’s sectors to impose harms felt disproportionately by people of color. In the spring of 2020, the stark inequalities of the pandemic’s impact and of police killings sparked uprisings against the prevalence of state-based violence and of government failures. Those protests have underscored the urgent need for profound, sustainable transformations in government systems that have become all too familiar. This volume maps the structures that generate oppressive practices, the work underway to challenge the inequalities, and the range of proposals to seek lasting alterations of expectations and practices so as to shape a social and political order that is respectful of all individuals’ dignity, generative for communities, and provides a range of services to protect safety and well-being.

The Arthur Liman Center for Public Interest Law at Yale Law School Fines & Fees Justice Center Policy Advocacy Clinic at UC Berkeley School of Law, 2020. 337p.