Monetary Myopia: An Examination of Institutional Response to Revenue From Monetary Sanctions for Misdemeanors

• Author: Karin D. Martin
• DOI: 10.1177/0887403418761099
• Published date: 01 July 2018
• Date: 01 July 2018
• Subject Matter: Articles

https://doi.org/10.1177/0887403418761099

Criminal Justice Policy Review

2018, Vol. 29(6-7) 630 –662

© The Author(s) 2018

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DOI: 10.1177/0887403418761099

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Article

Monetary Myopia: An

Examination of Institutional

Response to Revenue From

Monetary Sanctions for

Misdemeanors

Karin D. Martin1

Abstract

Monetary sanctions (fines, fees, surcharges, etc.) are codified in municipal, state, and

federal statutes and create an incentive for jurisdictions to shift from using them

for punishment to using them for revenue. Misdemeanors are of particular concern

because they dominate the court system and provide ample opportunity to assess

surcharges on top of punitive fines. This article uses a modified case study to explore

how Nevada and Iowa, two different but comparable states, respond to the revenue

incentive in misdemeanor convictions. In Nevada, the legislature has increasingly

required the courts to become self-funding; in Iowa, the state has responded to

monetary incentives by focusing almost exclusively on collections. The analysis

reveals a connection between the destination of revenue and the collection apparatus

and shows misdemeanor sanctions to be a domain of conflicting goals. The article

proposes the concept of “monetary myopia” to explain the states’ behavior.

Keywords

criminal justice policy, courts, justice, policy implications, punishment

In essence, we encourage misdemeanor crime to help fund the Nevada Supreme Court.

—Ron Titus, Court Administrator and Director of the Administrative Office of the Courts,

Office of Court Administrator, Nevada Supreme Court1

1University of Washington, Seattle, USA

Corresponding Author:

Karin D. Martin, Evans School of Public Policy and Governance, University of Washington, Box 353055,

208 Parrington Hall, Seattle, WA 98195, USA.

Email: kdmartin@uw.edu

761099CJPXXX10.1177/0887403418761099Criminal Justice Policy ReviewMartin

research-article2018

Martin 631

Introduction

Every state in the country has legislation concerning monetary sanctions. Dozens of

state statutes, myriad municipal codes, and federal law guide all monetary sanction

use. As these sanctions grow, evidence of their fraught nature is emerging from

throughout the criminal justice system. Fines and the resulting debt can precipitate

police contact and further involvement in the criminal justice system, including incar-

ceration (see Bannon, Nagrecha, & Diller, 2010). In addition to the fines or restitution

that judges order, courts can both set and collect their own fees (Reynolds & Hall,

2011). Meanwhile, state supervisory agencies (prison, jail, probation, parole) regularly

charge a weekly or monthly fee to the indigent, unemployed, and those who work for

extremely low-wages (e.g., US$1/hr in prison; see Bannon et al., 2010; Rosenthal &

Weissman, 2007).

Through all of these situations, a potentially problematic thread runs. Rather than

the primary function of monetary sanctions being to achieve bona fide punishment

goals (i.e., deterrence, retribution, restitution, or rehabilitation), they are instead used

to generate money for the state. Given the difficulty, if not impossibility, of pursuing

revenue and justice at the same time, this shift heralds an acute dilemma in criminal

justice. At stake is the potential for money to undermine equity, efficiency, and even

the fundamental aims of the criminal justice system.

Scholars have long argued for the efficiency of monetary penalties (e.g., Morris &

Tonry, 1990; Weisburd et al., 1998). The core assumption of this argument is that mon-

etary sanctions are socially costless. In Becker’s (1968) his exposition of Optimal

Penalty theory, Becker (1968) states, “the social cost of fines is about zero” (p. 180).

Indeed, this logic likely helped spur the 1980s impetus to expand monetary sanction

use. During that time, the first incidents of prison over-crowding, reports that probation

was failing in many urban areas, and the publication of an influential book2 arguing for

options besides prison and probation provoked significant interest in nonprison punish-

ments (Petersilia, 1998). Chief among these were monetary sanctions, which are con-

sidered “intermediate,” “alternative,” or “less restrictive” punishments (see Martin,

Sykes, Shannon, Edwards, & Harris, 2018).

In the early 1980s, the Vera Institute reviewed all extant research on fines (Sichel,

1982a, 1982b, 1982c; Zamist, 1982) and soon thereafter, the Bureau of Justice

Assistance (BJA) sponsored a series of demonstration projects on day fines (BJA,

1996). These projects were modeled on the European approach to fines, in which

income factors into setting monetary penalties (discussed below). Indeed, fines are in

widespread use internationally (Frase, 2001; Kantorowicz-Reznichenko, 2015;

O’Malley, 2009). Despite practitioners’ long-standing interest in the topic, the empiri-

cal literature on monetary sanctions remains limited and almost exclusively focused

on or after the sentencing stage (e.g., Harris, 2016; Ruback & Clark, 2011).

The literature nevertheless reveals a few key findings. First, the adverse repercus-

sions for failing to pay monetary sanctions are myriad (Bannon et al., 2010; Harris,

2016; Harris, Evans, & Beckett, 2010; Martin et al., 2018). In their pioneering study

of “legal debt” in Washington state, Beckett, Harris, and Evans (2008) found that

632 Criminal Justice Policy Review 29(6-7)

monetary sanctions have numerous negative consequences such as reducing family

income and wealth; creating difficulties in securing housing, employment, and credit;

and prolonged or additional involvement with the criminal justice system. These piv-

otal findings demonstrate that monetary sanctions have negative consequences that

may exceed the intended level of punitiveness, with far-reaching consequences such

as creating a “disincentive to work” (Harris et al., 2010, p. 1792)

Bannon et al. (2010) conducted an extensive review of debt on criminal justice

“user fees”—or financial obligations that are explicitly not imposed for any of the

traditional purposes of punishment. In an examination of these practices in 15 states

with the highest prison populations,3 the authors find that unpaid monetary sanctions

often prompt liens, wage garnishment, and tax rebate interception (Bannon et al.,

2010). Because debt is often reported to credit agencies (either directly or through civil

judgments), a person’s credit score can also suffer with consequences for the ability to

secure loans, mortgages, leases, and employment. Furthermore, evidence also shows

that debtors are often confused about who they owe and why (Martin & Spencer-

Suarez, 2017; Nagrecha & Katzenstein, 2015).

Other consequences for unpaid court-ordered debt range from driver’s license sus-

pension (e.g., Harris et al., 2016) to warrants. In 30 states, a person’s right to vote can

be affected by unpaid court-ordered debt, including for misdemeanors (Fredericksen

& Lassiter, 2016). Unpaid debt can also lead to incarceration (e.g., Sobol, 2015;

“State Bans,” 2016), despite a Supreme Court ruling, Bearden v. Georgia (1983),

mandating that a court must find that a person has “willfully” failed to pay.4 For these

reasons, Harris (2016) argued that monetary sanctions “serve as a punishment tool

that permanently penalizes and marginalizes the vast majority of criminal

defendants.”

The second key finding in the literature on monetary sanctions is that a variety of

legal and extra-legal factors influence their use (Gordon & Glaser, 1991).5 For instance,

analyses of sentencing data in Pennsylvania reveal that offender and offense character-

istics affect the likelihood of monetary penalties (e.g., Ruback & Clark, 2011), that

there is a trade-off between types of sanctions (e.g., fines vs. restitution; Ruback,

2004), and that there are significant differences across jurisdictions (e.g., Ruback,

Shaffer, & Logue, 2004). Ruback (2004) specifically finds that race, age, and type of

offense affect fines and restitution. Harris, Evans, and Beckett (2011) similarly find

that Latinos receive higher monetary sanctions than non-Latinos in Washington state.

Other research on monetary sanctions finds that jurisdictions have significant varia-

tion in their monetary sanction policies and practices (Harris et al., 2016). Indeed, “no

nationally consistent set of laws, policies, or principles . . . govern monetary sanc-

tions” (Martin et al., 2018, p. 477). These types of studies are essential for establishing

a baseline understanding of how monetary penalties function in criminal sentencing,

but they leave unanswered the question at hand about the revenue-generating aspect of

monetary sanctions.

The final main finding in the literature is that the type of monetary sanctions—fine,

fee, restitution, or surcharge—matters enormously to both theory and practice (Beckett

& Harris, 2011; O’Malley, 2009, 2011; Ruback & Clark, 2011). For example, Beckett