A Fine Scheme: How Municipal Fines Become Crushing Debt in the Shadow of the New Debtors’ Prison

Author’s abstract: “As state and local budgets tighten, municipalities have turned to civil fines and penalties to fill empty coffers. These fines and fees, often termed legal financial obligations or economic sanctions, arose as a way to shift the costs of criminal adjudication to those charged with criminal activity. But many jurisdictions are now using jail time to coerce poor, mostly minority violators of minor infractions, such as truancy, driving offenses, littering, and jaywalking, into paying fees they cannot afford. These fines are only the beginning, as municipalities tack on court fees, payment plan charges, other costs, and interest. Small debts spiral into enormous ones, and nonpayment can result in incarceration. Collection of these debts is often outsourced to private debt collectors, who use aggressive tactics and charge collection fees, creating a never-ending cycle of debt and incarceration. This cycle is not only devastating to the poor and poor communities, but it makes no sense, because people wind up jailed at costs far exceeding their original fines. The result is that the rich may walk away, while the poor must pay or stay.

This Note explores the origins of and shift to this system of municipal fines; how the current scheme operates outside the bounds of the Constitution; its disastrous effects on poor communities, particularly communities of color; and several alternatives and avenues for legal reform.”

You can read the full article here, but it is behind a paywall.

Key Findings
  • The emergence of broken windows policing in the 1980s meant that law enforcement focused new resources and attention on low-level violations that might otherwise have gone unenforced. As a result, millions of people were swept into the criminal justice system.
  • Because mass incarceration places enormous burdens on state and local budgets, states and municipalities have gained political traction by advocating for a system funded by those who are subjected to it.
  • Fines and fees are disproportionately assessed against minorities. Indigent citizens are policed for minor offenses, fined beyond their means, and eventually jailed for nonpayment of these fines.
  • In collecting revenue from fines and fees, municipal courts often violate the Equal Protection, Due Process, and Excessive Fines clauses of the Constitution.
  • Remove low-level “crimes” such as jaywalking, “manner of walking,” and failure to appear from municipal codes. Remaining violations should make use of an escalation system that begins with a warning and allows people the chance to remedy violations.
  • End Constitutional violations in courts and policing, and ensure that the justice system is properly funded so that perverse incentives never influence policing or incarceration.
  • Use bench cards to educate judges about how to measure a defendant’s ability to pay and to ensure that defendants’ constitutional rights are being protected.
  • Implement day fines instead of tariff fines.

“The only reason that the court is in operation and doing business… is because that defendant has come in and is a user of those services…They don’t necessarily see themselves as a customer because, obviously, they’re not choosing to be there. But in reality they are.” –Michael Day, administrator for the Allegan County Circuit Court in Michigan, justifies the court’s reliance on so-called user fees.

Torie Atkinson
Harvard Civil Rights - Civil Liberties Law Review (CR-CL), Vol. 51, No. 1, 2016