Economic Liberty and Criminal Justice.

AuthorColgan, Beth A.

Thank you for having me. I'm going to be talking about non-forfeiture economic sanctions and just to make sure we are all on the same page, I am going to give a quick overview of the basic types of economic sanctions that are most prevalently used around the country.

So, obviously, a statutory fine is the most common type of economic sanction, (1) although we also have what are called surcharges in many jurisdictions. (2) Surcharges are essentially fines on top of fines that are typically targeted at particular funds. (3) For example, if you are ticketed for a traffic violation, you might pay a surcharge to fund night court, to fund teen court, or to fund public services like public parks. (4) Often, a surcharge funds things that have literally nothing to do with the criminal justice system.

In addition to those fines and surcharges, there is a common use of administrative fees, sometimes called user fees. (5) For example, you might have to pay more if you opt for a jury trial, (6) you might have to pay for the cost of your pretrial incarceration, or you might have to pay for your post-conviction incarceration. (7) You might have to pay for things like--and this one usually surprises people--the cost of the public defender you only qualify for because you are too indigent to pay. (8) As a result, these fees get tacked on and add up, and at times can surpass the amount of the fine in question. (9)

Another type of economic sanction that is in use in some but not all cases is victim restitution, (10) which has a very different purpose that creates some interesting policy and constitutional questions that I'm happy to talk about.

Taken together, those are the general forms of economic sanctions we use. And we use them at all levels of cases, from traffic and low-level ordinance violations all the way up to the most serious of felonies. And we use them in juvenile courts as a form of punishment as well. (11)

What happens if you cannot pay economic sanctions? For those who cannot pay immediately, the consequences can result in more debt. Oftentimes you have to pay collections costs and interest costs, and in many jurisdictions you have to pay a fee to be set up on a payment plan. (12) There can be additional fees if you cannot pay in the form that is preferred. If you are late on a payment, the fees may be so high that it effectively doubles the principal at stake. (13) There are also other sanctions that can occur if you are unable to pay immediately. Your probation and parole might be extended (14) and therefore the fees accompanying being on probation and parole increase as well. You may lose your driver's license in many states, (15) which has serious repercussions for people's financial well-being. (16) In some places, if you have been disenfranchised because of the nature of the conviction, the inability to vote is extended because you cannot pay. (17) In many places, the response to non-payment is incarceration. (18)

Now, all of those responses are arguably, and in some cases flatly, unconstitutional, (19) but they are very prevalent across the United States.

The reality is that many people cannot pay. To give you a picture of what we are talking about here, the 2017 Supplemental Poverty Measure showed that fourteen percent of people in the United States are living below the federal poverty line. (20) Even if they are earning minimum wage, in most states the minimum wage rate is so low that even adjusted for the earned income tax credit, a family of three would be unable to meet their basic needs. (21) What we know from the Federal Reserve's Report on the Economic Well-Being of U.S. Households in 2017 is that about a quarter of adults cannot pay their monthly bills, so they are skipping things like basic necessities, food, housing, hygiene, etc. (22) About a quarter are skipping necessary medical needs, so they are not able to access medication or other types of care. (23) Nearly half of adults in the United States--four out of ten--would be unable to pay an unexpected $400 expense without having to either sell off personal property or take out loans. (24) Because nine million households in the United States are unbanked, (25) that means going to more expensive options like payday loans. (26) If you cannot pay, you end up in a Kafkaesque position--costs continue to stack up pushing you further into a hole and the cycle of not being able to pay and the risks that creates continues on.

This is particularly difficult for people with felony convictions or who are returning from periods of incarceration. (27) Now, why might that be? You heard in the last panel a little bit about occupational licensing restrictions. (28) In many states, one of the collateral consequences of a conviction is restrictions on occupational licensing. (29) For instance, you might not be able to get a driver's license that allows you to operate commercial vehicles, (30) you might not be able to become a barber, (31) and you might not be able to engage in all sorts of occupations that have literally nothing to do with the crime of conviction. (32) In many jurisdictions, that marginalization continues until you complete your sentence. Therefore, if you can't complete probation and parole because you can't pay off the economic sanctions that are a condition of your probation and parole, you are still excluded from the economy. (33)

Of course, there are also other limitations on occupations for people coming out of incarceration, including straightforward employer reluctance to hire. (34) But also employer reluctance may be in part because in many states, one of the collection mechanisms is garnishment, which creates another hurdle because employers have to deal with the administrative hassle of garnishment processes. (35) Of course, this is particularly bad for people of color who are more likely to be returning to communities with stagnant economies. (36)

There are strong arguments that the imposition of unmanageable criminal debt is incompatible with criminal justice goals in the United States. One of the main goals of criminal justice is equality in sentencing. (37) But one of the things we know is that in the context of economic sanctions, we're effectively punishing not just the individual who committed the offense, but the entire family. It is often family members who are paying the debt rather than the person who was incarcerated. (38) If you are incarcerated, if you are lucky enough to be able to get a job in prison--which is not true for most people--your wages could be cents per hour. (39) That's not going to make much of a dent in these kinds of bills, and so families end up paying. It's not obvious that we're getting to the criminal justice goal that people convicted of the same offense should be treated equally if people who haven't been convicted at all are paying.

Another criminal justice goal is deterrence. There are some studies that investigate the effect of recidivism with respect to the use of fines. As a general matter, what we see is that this research indicates that the imposition of higher rates of economic sanctions or imposition of sanctions beyond a manageable amount leads to recidivism. (40) That result is found in studies that aren't attending to just unmanageable sanctions, but the use of economic sanctions overall. For example, a recent study analyzing the use of economic sanctions in juvenile court found that both imposing restitution and increasing the overall...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT