In a letter sent to chief judges and court administrators across the country, the U.S. Justice Department called for an end to practices that prey on criminal defendants as a source of revenue. I’ve written before about the cost of being arrested with cash, the problems with for-profit prisons, and Hillsborough County’s flirtation with a bad private probation provider.
The letter sets out principles for all court systems to follow:
- Courts must not incarcerate a person for nonpayment of fines or fees without first conducting an indigency determination and establishing that the failure to pay was willful;
- Courts must consider alternatives to incarceration for indigent defendants unable to pay fines and fees;
- Courts must not condition access to a judicial hearing on the prepayment of fines or fees;
- Courts must provide meaningful notice and, in appropriate cases, counsel, when enforcing fines and fees;
- Courts must not use arrest warrants or license suspensions as a means of coercing the payment of court debt when individuals have not been afforded constitutionally adequate procedural protections;
- Courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release; and
- Courts must safeguard against unconstitutional practices by court staff and private contractors.
While Hillsborough County certainly isn’t the worst place when it comes to using court fines, it isn’t ideal either. Non-payment of a court-imposed fine, for any reason, can still end in a driver’s license suspension. Our uniform bail-bonds schedule still results in people sitting in jail not because they’re a flight risk or a danger to society, but because they can’t afford to bond out.
Part of these problems come from the way our court system is funded. Instead of being funded through tax dollars, the Clerks of Court get funding through fines and filing fees. When the foreclosure crisis hit, that meant a huge increase in the number of foreclosure cases being filed through the state. This also meant a huge increase in revenue due to each case costing around $400 to file in the court system. But now that the foreclosure crisis is over, the clerks can’t depend on that revenue stream and have to look elsewhere, to places like court fines.
This kind of system is ultimately untenable. The idea that the court system should operate only off of filing fees and fines would work fine if our court system was designed to be a debt collector. But that’s not its purpose. People need to access the court system to do things like file for a domestic violence injunction or to file for custody of their children. This is the non-profitable side of “access to justice.”
By making court funding contingent on the fines it collects, we essentially turn the court into a debt collector. It’s time to end what amounts to policing for profit – encouraging the court system to levy fines to pay its own bills. Hopefully in the future our court system’s funding structure will change. But for now, look for more of the same.