(Color)blind Reform: How ability-to-pay determinations are inadequate to transform a racialized system of penal debt

This law review article argues that fines and fees reformers’ emphasis on instituting ability-to-pay determinations without any reductions in racially discriminatory ticketing may cause more harm than good. In particular, the author articulates a concern that ability-to-pay determinations risk legitimizing the existing system of monetary sanctions and entrenching damages inflicted upon people deemed ‘able to pay.’

The article first chronicles the rise of ability to pay determinations, noting that they arose out of Bearden and were intended to prevent nonpayment incarceration. Under Bearden, judges have discretion to determine whether failure to pay is “willful” – citing empirical evidence about judges’ racial bias, the author notes that this constitutes an opening for Black defendants to be blamed for their poverty. She also analyzes the rise of fines and fees as a funding mechanism and tool of state coercion: because the state “left the judiciary to fund itself” and thereby “balanced the budget on the backs of poor people,” she argues, non-payment became equivalent to non-compliance with the law.

The author argues that ability-to-pay requirements have not historically protected indigent defendants from disparate treatment – and the lack of protection is particularly pernicious for traffic citations, where due process is rarely afforded to defendants. She also notes that traffic enforcement is “rife with explicit and implicit racial biases and prejudices” – thus, ability-to-pay determinations alone cannot fix the harms suffered by marginalized communities at the hands of police. Additionally, ability to pay determinations also do not take into account the accumulating consequences of inability to pay fines and fees from prior violations: driver’s license suspensions, arrest, jail, conviction, probation; lost housing, jobs, cars.

The citations are their batons, the fines their weapons of financial destruction, the fees their instruments of deprivation.

You can read the full text of this article here.

Theresa Zhen
NYU Review of Law and Social Change