The Price of Freedom: An Analysis of Monetary Sanctions in the United States
by Hannah Turner
Across the country, millions of Americans are affected by legal debt. Individuals accused or convicted of a crime may be expected to pay momentous financial penalties as part of their sentence, a plea deal, or for simply partaking in the judicial process. The debt accumulated from a single conviction can take years to resolve, resulting in unnecessarily prolonged contact with the criminal justice system. The use of monetary sanctions in the courts has increased significantly in recent decades, and high-profile events like those in Ferguson, Missouri have exposed instances of corruption regarding the use and collection of financial penalties. Still, the system of monetary sanctions is vastly under studied. This paper presents a detailed look at the current research available on monetary sanctions, including the history, assessment, and effects of existing policies. The final section discusses alternatives to the status quo, specifically examining case studies from around the country.Keywords: monetary sanctions, fines, fees, legal debt
Leveling financial penalties against criminals has been a common practice in the United States since the colonial era (Peebles, 2013). Still, academics have only recently taken a critical look at how monetary sanctions are used in the American justice system, especially as the crippling effects of legal debt have become more visible in our society. These scholars ask which sectors of the population are the most affected by monetary sanctions, consider what goals of criminal justice are truly fulfilled by their imposition, and identify discriminatory practices. In this paper, I examine the literature that addresses these topics, focusing specifically on the modern expansion, assessment, and effects of monetary sanctions in the United States. In the final section, I also explore public policy alternatives.
First, however, it is important to establish that the term “monetary sanctions” encompasses a wide variety of penalties, including fines, fees, restitution, surcharges, and the interest accrued on unpaid debt (Martin et. al., 2018). Each of these sanctions is described as having a different philosophical purpose. Fines are directly categorized as a punishment; the burden of a hefty fine is meant to deter lawbreakers from committing future offenses. Fees, on the other hand, are purely used to finance system-wide operational costs and are often not viewed by the court as punitive. Instead, the justification is that defendants – not law-abiding tax-payers – should pay for their use of the criminal justice system. Restitution is thought of as entirely separate because it is meant to literally pay back the damage a victim suffers as the result of a crime (Beckett & Harris, 2011). Because monetary sanctions can vary drastically, and many are arguably not “sanctions,” the term Legal Financial Obligations (LFOs) is also commonly used among researchers who study this topic (Martin et. al., 2018).
History and Expansion of Monetary Sanctions
Monetary sanctions have a long history in the United States. Prior to the 1880s, bankrupt citizens could find themselves incarcerated in debtor’s prisons for years trying to pay off money owed to their local governments (Peebles, 2013). In addition, the Supreme Court took up several cases on the issue of incarceration for non-payment throughout the 20th century. Yet, it is only of late that monetary sanctions have been addressed in broader public discourse. In the 1970s, public sentiment against taxation combined with the growing system of mass incarceration left localities scrambling for money; many agencies increased the use of LFOs to fund other parts of the criminal justice system or government operations (Jermstad, 2016). Since the 1990s, the use of monetary sanctions has grown by 650% in both criminal and civil courts (Harris et. al., 2010). Harris et al. found that only 25% of inmates across the country were assessed monetary sanctions in 1991, as compared to 66% in 2004 (2010). To date, the money gained through LFOs collected at the federal level is almost double what is spent on retirement and disability and 14 times more than the budget of the U.S. Postal Service (Henricks & Harvey, 2017).
Interest regarding the use of monetary sanctions surged in 2014 following the events in Ferguson, Missouri, when local police killed unarmed, 18-year-old Michael Brown. The Department of Justice’s subsequent investigation into the Ferguson Police Department found that the agency frequently issued warrants for people with menial, unpaid legal debt. In 2013, over 33,000 of such warrants were issued in Ferguson, a city with a population of only 21,000 residents (Henricks & Harvey, 2017). Someone arrested on one of these warrants faced additional fees related to the cost of arrest, jail time, and bonds. Hence, issuing these warrants served as a way to continually increase the amount that defendants, who were clearly already struggling to pay, owed the city. Henricks and Harvey uncovered that practices like these are not uncommon nationwide (2017). This growing dependence on monetary sanctions is seen as troubling, not only because it is exploitative, but because the incentive to raise revenue can distort hearing outcomes and undermine the stated goals of fairness and impartiality in our criminal justice system (CJ Policy Program, 2016).
Assessing Monetary Sanctions
Assessing monetary sanctions is different than assigning other penalties in several ways. First, while only a small portion of the population will experience incarceration or the trial process, the vast majority of Americans have had some kind of experience with LFOs – most notably via traffic tickets. In 2011 alone, over 10 million tickets were written across the country for traffic violations (Langton & Durose, 2013). Yet, even traffic tickets serve as a case study for the problems associated with the system of monetary sanctions. Speeding between 1—15mph over the speed limit in a 65mph zone will cost someone in California $162, including the court fees and surcharges. However, the base fine for the crime—the portion that is philosophically considered the punishment—is only $35 (Judicial Council of California, 2017). Figure 1, which lists several charges with varying degrees of severity under California law, further demonstrates this imbalance between the fine and fees. California is certainly not alone in this practice, but this example illustrates that it is not the base fine that necessarily results in large amounts of legal debt; instead, it is the variety of excess fees used to finance the criminal justice system.
Beyond traffic offenses, judicial discretion plays a critical role in how much someone may be assessed for a more serious conviction. Judges often have the choice of whether or not to impose specific fees on people who go to trial and are sometimes allowed to choose which LFOs they impose from broad statutory guidelines (Harris et. al., 2011). However, even judges do not have the final say. Court clerks, probation/parole officers, and private companies contracted by the state can assess LFOs as well. Some argue that individual actors should not have such a high level of discretion when levying fines and fees, but making the system entirely standardized has problems as well; standardized systems, wherein the amount assessed is based entirely on the crime committed, do not take income into account and often result in a regressive penalty that burdens the poor more than the rich (Council of Economic Advisers, 2015). In short, it is virtually impossible to determine an “average” experience with monetary sanctions nationwide. The crime committed, where the crime was committed, and the day-by-day decisions of court actors are all too variable to make such a claim (Beckett & Harris, 2011).
Fragmentation and inconsistency across agencies also make it complicated for defendants to fully understand the amount they owe and to whom they owe it. Thus, millions of dollars remain uncollected around the country (Harris et. al., 2010). That is not, however, for lack of trying to pay on the part of low-income defendants. According to Harris et al.’s study of monetary sanctions in Washington State, even if a defendant in the sample group consistently paid $100 per month toward the median assessment of $7,234, it would still take him 10 years to pay off that amount due to accumulated interest (2010). For someone who has little expendable income to make substantial payments, legal debt can accumulate incredibly quickly, resulting in prolonged interaction with the criminal justice system.
When a defendant with debt does come forward arguing an inability to pay, each state has its own procedure for determining indigency. In some jurisdictions, defendants who plead guilty and agree to pay a financial penalty as part of that plea are not entitled to an ability-to-pay hearing (CJ Policy Project, 2016). Indigent defendants are also commonly given the option to serve time in jail for an amount of time deemed “equivalent” to what is owed. Often called “pay or stay” policies, the option to stay in jail has been staunchly criticized as costly for state governments and even unconstitutional because these defendants are, in practice, being sent to jail for their inability to pay (ACLU, 2010). Additionally, defendants who choose to spend time in jail hoping to rid themselves of their financial burden may get credit towards some of their debt but may also accrue new debt based on fees associated with booking, processing, and time spent in jail (Beckett & Harris, 2011).
Moreover, in virtually all cases, late payment triggers an additional fee, though the amount varies around the country (Beckett & Harris, 2011). On top of increased financial obligations, defendants may have their driver’s licenses suspended or their voting rights revoked until payments can be made. In four states, a person’s driver’s license can be suspended for any nonpayment of legal debt, no matter if the original offense was traffic related (Martin et. al., 2018). Not having a valid driver’s license can make it difficult to maintain employment and, if the defendant does need to drive, increases the chance that they will face subsequent arrest and extra financial charges. In 30 states, individuals may face complete or partial disenfranchisement if they do not pay LFOs related to felony charges, and, in 8 states, individuals may even lose their voting rights if their debt is related to a misdemeanor (Frederiksen & Lassiter, 2016). More dubious still is the fact that defendants can be, and routinely are, jailed for late payments (Martin et. al., 2018). Even though the Supreme Court took a theoretically strong stand against imprisonment for an inability to pay in Bearden v. Georgia (1983), Harris et. al found that 12% of probationers sent to state prison for probation violation in 1991 were incarcerated for their failure to pay LFOs (2010).
The Effects of Monetary Sanctions
Perhaps the most significant findings that have emerged from recent research concern the social impacts that monetary sanctions have around the country. Scholars concur that LFOs disproportionately affect the poor and minorities (Beckett & Harris, 2011; Henricks & Harvey, 2017; Meredith & Morse, 2017; Harris et. al., 2010). African Americans and Hispanics are incarcerated at rates of 5.1 times and 1.4 times the rate of white people, even though these two minority groups combined make up less than 30% of the population (Nellis, 2016). White people are also twice as likely to be able to afford bail and be released following arrest compared to black and Hispanic defendants (Schlesinger, 2005). Furthermore, between 80% and 90% of those charged with criminal offenses qualify for indigent defense (Beckett & Harris, 2011).
The efforts of poor defendants to pay off legal debt can result in substantially lower household incomes and have devastating collateral effects. On average, formerly incarcerated white, Hispanic, and black men owe 60%, 36%, and 50% respectively of their annual income to legal debt (Harris et. al., 2010). This leaves very little money left to support dependent family members or pay for basic necessities. The accumulation of legal debt limits already dismal access to education, housing, and other social services, and it provides a disincentive to gain legal employment because people know their wages may be garnished (Beckett & Harris, 2011). These practices seem antithetical to the idea of limiting low-risk offenders’ interactions with the criminal justice system, and instead, force them into a cycle of paying off an unending stream of debt.
Aside from the strain that monetary sanctions place on low-income individuals, LFOs are particularly burdensome to communities with a high proportion of minority residents. Utilizing data from the Census, American Community Survey, Uniform Crime Report, and the Survey for State and Local Finances, Henricks and Harvey found that minority communities across the United States were disproportionately impacted by legal debt. The average monetary punishment in a locality increased by $34,864 per 100,000 residents for every 1% increase in the black population and by $53,112 for every 1% increase in the share of noncitizens in the population (Henricks & Harvey, 2017).
Deviations from the Status Quo
Given that the operation of our criminal justice system is currently reliant on LFOs, feasible policy alternatives seem difficult to construct. The literature on such alternatives focuses on three primary models: imposing a “day fines” system, providing more debt forgiveness programs, and creating a more standardized assessment system both by informal culture adjustments in the court system and by formal policy changes.
Several European countries utilize a system of monetary sanctions called “day fines” (Greene & Worzella, 1992). Far more subjective than the American process, the day fine system first detaches the concept of punishment from finances altogether. The judge determines the amount of punishment one deserves in “punishment units” based on the severity of the crime. Only after this initial number is determined does the judge consider how such units might be translated into payment. How much one will pay is always based on their income, usually in terms of daily wage, hence the term “day fine.” This procedure automatically results in a sliding scale for payment, such that a wealthy person who commits a crime that is determined to be “worth” five days’ wages will pay substantially more than a homeless person who also committed a five-unit crime (Greene & Worzella, 1992). Furthermore, day fines are used instead of, as opposed to in addition to, other sanctions like incarceration (Martin et. al, 2018). In this way, day fines are purely punitive in nature, unlike fees and surcharges in the U.S. which exist entirely to raise revenue.
Studies have found that the day fine system reduces demographic disparities commonly observed in the U.S. system (Bureau of Justice Assistance, 1996). A 1992 study that tested the use of day fines in Staten Island and Milwaukee found that utilizing day fines reduced costs associated with collection and non-payment of fines and increased payment rates among low-income defendants (Greene & Worzella, 1992). This evidence suggests that assessing fees in a way that is tailored specifically to the defendant could mitigate the discriminatory outcomes that are hallmarks of the current American justice system. However, judges involved in these studies report that the financial and time commitments required to implement the day fines system make them hesitant to permanently instate it (Bureau of Justice Assistance, 1996).
Debt forgiveness programs are another potential solution and can exist in a variety of capacities. One of the most common is permitting defendants to convert their payments into community service hours. Allowing defendants to “pay back” their debts to society without the literal requirement of paying money supports values of retribution and rehabilitation while also reducing the burden that LFOs place on indigent defendants. Using community service as a substitute for monetary payment also shifts the benefit from the court to the larger community, reducing conflicts of interest (Henricks & Harvey, 2017). However, for community service programs to be effective, there are several best practices that must be followed. For example, defendants’ work should be valued at minimum wage or higher, and no extra fees should be required for participation (CJ Policy Program, 2016).
Despite the alternative, dedicating hours outside the home to service may not be feasible for people who have children, attend school, have disabilities, and/or work full-time. In such cases, judges could waive fees completely. Or, states could create amnesty programs that allow defendants with warrants out for their arrest due to non-payment to come forward and pay what they can, clear warrants, have licenses reinstated, and either have their cases resolved or have their LFOs reduced (CJ Policy Program, 2016). Data from a two-year long traffic ticket amnesty program in California seems promising; in a mere four months, between September and December of 2016, the program allowed for 192,500 driver’s licenses to be reinstated and raised over $24 million in gross revenue for the state (California Courts, 2017).
Finally, standardizing the assessment process could reduce individual discrepancies based on class or race and conflicts of interest. Courts in Biloxi, Mississippi, started giving each municipal court judge a “bench card” that encourages the judge to carefully contemplate the defendant’s financial ability when imposing fees and fines. In recent years, officials have made recommendations on how to apply such a policy at the federal level (Martin et. al, 2018). To go past simply encouraging judges to take the ability to pay into account, localities could cap the percentage of an individual’s take-home pay that can be collected by the courts at 15%. This would increase the collection rate and decrease the severe collateral consequences that occur when people are expected to give up much of their income to the criminal justice system (CJ Policy Program, 2016). State legislatures could go even further and cap the percentage of revenue that localities can derive from court fees; this would limit local officials’ motivations to further tax poor criminal defendants—and stay popular with voters—as opposed to distributing the cost across the public. Similarly, eliminating fines and fees that are paid directly to law enforcement agencies could reduce the incentive to enforce the law with profit margin, not public safety, in mind (CJ Policy Program, 2016). While these changes would force states to restructure how the criminal justice system is funded, they are necessary to ensure that every citizen receives a fair day in court free from external influence. Personally, I believe that further regulation is the most feasible and effective form of change that could occur in a timely manner without a major shift in priorities or philosophy in American courts.
While monetary sanctions affect millions of Americans each day, the system itself is vastly under-researched from a national perspective. Findings uncovered using state-level data show that poor and minority citizens are more likely to suffer from the adverse outcomes associated with large amounts of legal debt. In addition, the role of court actors in raising revenue through sentencing practices creates a conflict of interest. Finally, low rates of payment indicate that monetary sanctions are doing more harm than good by forcing poor defendants into years of prolonged interaction with the criminal justice system. Current practices do far more than hold defendants accountable by making them pay back a debt they owe to society. Instead, people are forced to pay additional fees unrelated to their crimes, just so courts can finance themselves. Recent research has fortunately brought these issues to light, and shifts are beginning to occur as high-profile events—like those in Ferguson, Missouri—raise public awareness of underlying problems. Still, the struggle to determine the true price of freedom in the United States will likely continue for decades as more evidence is gathered on the overwhelming debt that is owed by the citizens of this country.
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 see Williams v. Illinois (1970), Bearden v. Georgia (1983), Tate v. Short (1971), and Moakley v. Smallwood (2002)