Confronting Criminal Justice Debt: A Guide for Policy Reform

This Guide for Policy Reform by Harvard Law School’s Criminal Justice Policy Program is organized into four issue areas: conflicts of interest, poverty penalties and poverty traps (when people are forced to pay more or face harsher sanctions because of their poverty), the ability-to-pay determination, and transparency and accountability. Under each of these sections, a description of the problem is followed by legislative, judicial, and executive reform suggestions for people at the state level to use and incorporate into their efforts.

You can read the full text of this report via the Criminal Justice Policy Program. A Guide for Policy Reform is the third publication in a three-part series released by the Criminal Justice Policy Program; the first provides an overview of the need for fines and fees reform, while the second is a guide for litigators.

Key Findings

(Conflicts of Interest)

  • The decision-making power and judgement of court officials and other government actors can be compromised when they depend on the number and dollar amount of fines and fees gained from defendants in order to fund essential public safety services.
  • Private probation companies are solely funded by the fees they are able to charge probationers, so they benefit from keeping defendants on probation for as long possible.

(Poverty Penalties and Poverty Traps)

  • Driver’s license and professional license suspensions are among the most common kinds of poverty traps, a policy that keeps a person in poverty by inhibiting his or her ability to make a living or meet basic needs and obligations; people also suffer from having their public benefits terminated or being denied for programs because of a requirement to first pay off criminal justice debt.

(Ability to Pay Determination)

  • The Supreme Court’s ruling in Turner v. Roger, a case regarding unpaid child support payments, details “safeguards” which allows someone’s finances to be properly assessed before they are jailed for not paying their criminal justice debt.

(Transparency and Accountability)

  • Data on the imposition of fines and fines across many states is often not collected, and when it is, the findings are either not made available to the public or scattered between a number of different sources.

(Conflict of interest)

  • In order to eliminate perverse incentives, the judicial system should be funded entirely through the state budget (and not revenue from fines and fees). This would ensure that government and law enforcement actors do not stand to gain from imposing criminal justice debt.
  • The profitability of private probation companies should be tied to positive outcomes for offenders, such as a decrease in recidivism rates.

(Poverty Penalties and Poverty Traps)

  • Driver’s licenses and professional licenses should never be suspended as a result of inability or failure to pay fines and fees.
  • A “tipping point” threshold or “discretionary income” determination can be used to prevent the amount of debt a person owes from becoming counterproductive to their stability.

(Ability to Pay determination)

  • Defendants should receive detailed documentation that includes (1) information about the fines and fees that may potentially be imposed in their case and (2) information about the steps a defendant can take to prepare for an ability to pay hearing.

(Transparency and Accountability)

  • State courts should be required by law to collect data related to criminal justice debt and to publish a cohesive report.
Rachel Ednick, Zack Greenamyre, Kathleen Heath, Alexandra Jordan, Criminal Justice Policy Program, Harvard Law School