The New Due Process: Fairness in a Fee-Driven State


Case law supports arguments that a conflict of interest exists when courts act as revenue centers; courts should operate as legitimate government institutions.

 Courts, prosecutors, and law enforcement work together to assess and collect fines, fees, and forfeitures that fund the justice system –  a conflict of interest and a violation of due process. Moreover, judges’ impartiality is also questioned because the monetary sanctions they impose become a significant source of the court’s operational fund. This article highlights case law supporting the argument that courts should not be funded by revenue from fines and fees, and provides recommendations to ensure courts are fair and impartial.

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Key Findings: 

  • Tumey v. Ohio: Mayors acted as judges in criminal cases involving the possession of illegal alcoholic beverages. Fines awarded in such cases were split between the arresting officers, the prosecuting attorney, the mayor, and the village treasury. The Supreme Court ruled the system violated due process; the mayor had a direct conflict of interest, and the system had a financial incentive to convict. 
  • Ward v. Village of Monroeville: The Court held the mayor’s participation in adjudication was a violation of due process because a significant part of the village’s income was derived from the Mayor’s court.
  • Gibson v. Berryhill: The Court found due process was violated from a conflict of interest by the Alabama Board of Optometry because their members in private practices were sitting in judgment of their competitors; they were actively attempting to drive their competitors out of business to personally benefit themselves.
  • Cain v. White: New Orleans judges operating the Judicial Expense Fund (JEF), a fund running on fines and fees revenue, was found to be a conflict of interest, violating due process rights because the money involved benefits the judges and the judicial system administered, even though money did not go directly into the judge’s pockets. 


  • States should fully fund courts through their general revenue fund; any income from judicial proceedings must be deposited into the state’s general revenue fund rather than to the court law enforcement fund.
  • Courts should police excessive fines by deciding whether a fine is an appropriate punishment on an individual basis for each offender and consider their ability to pay.
  • Provide interest-free and penalty-free payment plans.
  • Remove arrest as a mechanism to enforce payment.
  • Courts should monitor prosecutors and law enforcement where the chance for financial gain exists.
Glenn H. Reynolds & Penny J. White
Tennessee Review