Private: Why Courts Need Guidance on Imposing Fees and Fines

by Jessica M. Eaglin, Associate Professor, Indiana University Maurer School of Law

Fees and fines provide an appealing method of punishment in states facing the pressures of mass incarceration and continued budget constraints. But until courts receive meaningful guidance on how and when to impose fees and fines, and unless legislatures exercise meaningful restraint on the creation of user fees in particular, this punitive practice will continue to do more harm than good for defendants, local justice systems and society at large.

Fees and fines are the economic sanctions imposed on defendants through the criminal justice system. Unlike punitive fines or restitution to compensate the victim of crimes, “user fees” are imposed solely to raise revenue. User fees range from nominal fees to obtain free public defender services to daily fines for use of GPS monitoring systems that supervise defendants pretrial or on probation to daily fines for incarceration in jail, and more.

As states face severe budget constraints, the “offender-funded” model of criminal justice – where critical costs to running the justice system are pushed onto the defendants in the system – becomes more prevalent. Many state courts simply cannot function with the amount of money allocated by their legislatures, so they are resorting to creative alternatives that are often costly for defendants entering the justice system. Offensive examples spatter the news weekly: defendant fees cover toilet paper in jail; court-imposed home supervision technology; or unmet court expenses like coffee and office supplies and court support staff and other government operations. 

The imposition of fees and fines is unregulated. Judges exercise broad discretion in the imposition of fees and fines, with very low constitutional restrictions. In 1983, the Supreme Court prohibited incarceration as a penalty for the non-willful nonpayment of court fees and fines. But whether failure to pay is willful or not is a question left to lower courts to decide, and the answers tend to lack clarity in assessment.

As a result, courts regularly impose fees and fines on people who cannot pay without much procedural protections. Sometimes the courts conduct an assessment of the defendant’s ability to pay debts; sometimes they do not. Sometimes defendants are placed on payment plans to prevent nonpayment; sometimes they are not. Sometimes courts conduct an assessment of defendant’s ability to pay before imposing fees, sometimes they conduct a review after the defendant challenges the fees after failure to pay.  

These disparate practices have negative consequences on the justice system. A 2015 Brennan Center report suggests that user fees deepen racial disparities in punishment because the fees are disproportionately placed on defendants of color. A 2010 Brennan Center report further demonstrates that aggressive enforcement of unpaid fees – which may include a driver’s license suspension, garnishment of wages and re-incarceration – prevents a defendant from successfully reintegrating into society. Moreover, enforcement of nonpayment drains judicial resources and prevents courts from conducting their traditional functions.  

Courts need guidance on how to exercise discretion in issuing fees, but legislatures may be reticent to give it. The recent wave of criminal justice reforms focus almost exclusively on achieving more cost-savings through alternatives to incarceration. Placing limits on the courts ability to impose fees on individual defendants could reduce the ability of courts to compensate for disappearing financial support of state courts or it could prevent the shift in costs towards offenders – thus shifting the costs back to the state that is seeking more cost-savings at the heart of its reforms.

Yet, there is hope. The American Law Institute is currently drafting a new section of the Model Penal Code that seeks to guide both legislatures and courts on how best to inform the use of fees and fines at sentencing. Several state courts have, through judicial enactment or lawsuit settlement – created bench cards to guide and inform judicial discretion in issuing and enforcing fees and fines on defendants. As awareness about the financial structure of the criminal justice system increases, reforms that inform judicial discretion in economic sanctions are more likely to develop as part of any comprehensive reform to reduce mass incarceration.