Navigating the Monetary Sanctions Maze: Understanding and Confusion Among Criminal Legal Debtors
| Date | 01 February 2021 |
| DOI | 10.1177/1043986220971385 |
| Published date | 01 February 2021 |
| Subject Matter | Articles |
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Article
Journal of Contemporary Criminal Justice
2021, Vol. 37(1) 4 –24
Navigating the Monetary
© The Author(s) 2020
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DOI: 10.1177/1043986220971385
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Understanding and
Confusion Among
Criminal Legal Debtors
Kimberly Spencer-Suarez1 and Karin D. Martin2
Abstract
Monetary sanctions in the criminal legal system are legally and procedurally complex.
If not paid in a timely manner, a single conviction can result in multiple legal financial
obligations, varying in kind, payment procedure, and consequences. This study
examines how, and the extent to which, criminal legal debtors understand monetary
sanctions. Based on interviews with 60 individuals who owed criminal legal debt in
New York, we propose a typology of debtor understanding. Proximal understanding
pertains to individual, case-level factors and is instrumentally oriented. Distal
understanding concerns system-level matters and is oriented toward normativity and
fairness. We examine how debtors develop each type of understanding, how these
dimensions interact, and the implications of debtor understanding for compliance
behavior.
Keywords
monetary sanctions, legal financial obligations, information access, cynicism, compliance
Introduction
Monetary punishment and the problematic nature of criminal legal debt have become
major focal points of scrutiny and concern among researchers, policymakers, and the
1Columbia University, New York, NY, USA
2University of Washington, Seattle, WA, USA
Corresponding Author:
Kimberly Spencer-Suarez, Columbia School of Social Work, Columbia University, 1255 Amsterdam
Avenue, New York, NY 11225, USA.
Email: kns2130@columbia.edu
Spencer-Suarez and Martin
5
general public (e.g., Harris, Huebner, Martin, Pattillo, Pettit, Shannon, Sykes, Uggen,
& Fernandes, 2017; Office of New York City Comptroller Scott M. Stringer, 2019;
Shaer, 2019). A growing body of research illuminates the disproportionate impact of
financial penalties on impoverished and marginalized communities (e.g., Harris,
Huebner, Martin, Pattillo, Pettit, Shannon, Sykes, & Uggen, 2017; Link, 2019;
Pleggenkuhle, 2018). As state and local governments increasingly off-load the costs of
administering criminal justice onto the system’s subjects (Beckett & Harris, 2011;
Katzenstein & Waller, 2015), some municipalities have come to rely heavily on reve-
nue from legal financial obligations (LFOs), such as fines, fees, and surcharges
(Fernandes et al., 2019; Henricks & Harvey, 2017; Martin, 2018). At the same time,
significant numbers of people are unable to pay what they owe, resulting in massive
amounts of outstanding debt.1
Recent scholarship rightly focuses on inability to pay as a central driver of criminal
legal debt. We posit that another factor contributing to nonpayment is confusion. That
is, the extent to which debtors understand monetary sanctions, including the specifics
of their individual financial obligations, the respective purposes of different types of
LFOs, the mechanics of paying, and the consequences of failing to pay, together play
an important role in how debtors deal with monetary sanctions, whether they seek
relief, and whether they comply. Evidence of confusion and its attendant problems
among individuals involved in other state bureaucracies, such as child support (Brito,
2019; Nam et al., 2009) and public assistance (Gustafson, 2011; Hasenfeld et al.,
2004), hints that a similar dynamic may be playing out within the realm of monetary
punishment. Indeed, the relevant legal practices, procedures, statutes, and conse-
quences of noncompliance are both convoluted and highly consequential. Confusion
on these fronts can be especially impactful in relation to case resolution and the ability
of system-involved people to attain social and economic well-being after serving cus-
todial sentences.
To examine the nature and ramifications of debtor confusion, this paper proceeds as
follows. First, we briefly address national and state policy contexts, articulating the
legal, structural, and practical complexities of the monetary sanctions regime to frame
the issue of debt confusion against its institutional backdrop. Based on our analysis,
we then proffer two categories of debtor knowledge: proximal and distal. Proximal
understanding pertains to an individual’s specific situation, whereas distal under-
standing concerns system-level factors. We find evidence that limited information
access, inadequate provision of information by system actors, and the complexity of
LFOs all contribute to confusion among debtors. Finally, we discuss these findings
with a focus on attitudinal and behavioral impacts.
Monetary Sanctions: A Practical and Legal Labyrinth
National and State Contexts
Although monetary punishment has quite a long history (Faraldo-Cabana, 2016),
its implementation has increased dramatically in recent decades. Between 1977 and
6
Journal of Contemporary Criminal Justice 37(1)
2012, state and local government revenue from LFOs rose 650%, from US$2.4 billion
(inflation adjusted) to US$15.7 billion (Henricks & Harvey, 2017). This shift rep-
resented a policy response to the fiscal pressures brought on by parallel trends that
took off during the 1970s: First were “tax limitation laws, coupled with federal
devolution that requires states to assume more responsibility in delivering public
services,” and subsequent budgetary shortfalls; and second was the expansion of
the carceral system and its concomitant costs (Henricks & Harvey, 2017, p. 5).
Amid these conditions, states and municipalities took to augmenting the size and
number of sanctions and the frequency with which they were imposed. Defendants
are now assessed some financial charge at virtually every point of contact with the
criminal legal system (Colgan, 2017).
In step with the nation as a whole, New York ramped up the severity of monetary
sanctions and expanded the population subject to them (Bannon et al., 2010). System
contact can trigger fines, fees, surcharges, restitution, civil penalties, and often a com-
bination thereof. One highly contested—and ubiquitous—feature of New York’s mon-
etary sanctions regime is the mandatory surcharge. All convictions prompt a surcharge,
the amount of which corresponds to offense level.2 Surcharges are only waivable in the
event that the defendant is assessed restitution and pays it in full prior to sentencing,
which seldom occurs (Martin & Spencer-Suarez, 2017). New York departs from many
other states in that it does not statutorily authorize a community service alternative if
a defendant lacks the means to pay surcharges and other LFOs.
Regarding fines and restitution, the court can adjust its terms of payment or reduce
an amount if it finds the defendant is indigent. Where the sentence also involves proba-
tion or imprisonment, New York Criminal Procedure Law (CPL) § 420.10 enables the
court to revoke the original sentence, in part or in full, and resentence the individual so
long as the new sentence does not exceed their ability to pay. An important caveat is
that incarceration does not suffice as grounds for deeming a person indigent. In fact,
incarcerated debtors are often required to pay monetary sanctions through encum-
brances placed on their commissary accounts, at rates as high as 40% of prison wages
and 100% of outside deposits.3 Moreover, surcharges and certain fees4 may not be
remitted (CPL § 420.30). If one cannot pay, judges have discretion to enter these LFOs
into civil judgment, which may in turn subject the debtor to future liens, garnishment,
and credit damage.
Dimensions of Complexity
To understand how the subjective experience of confusion stems from objectively
complicated factors, it is helpful to elucidate the dimensions of complexity that define
monetary punishment. These can be organized into three domains: legal, structural,
and practical. First, legal complexities are those that emanate from the statutes gov-
erning the imposition and administration of monetary sanctions. LFOs take many
forms, which diverge in terms of their ostensible purposes and stakeholders.5 The pri-
mary categories include fines, fees/surcharges, and restitution. A judge issues a fine,
which is explicitly punitive. Any entity in the criminal legal system (e.g., courts, jails,
Spencer-Suarez and Martin
7
probation officials, providers of court-ordered treatment) can mandate fees or sur-
charges, which are designed to cover costs. Restitution compensates a victim for
bodily harm or property damage.6 Yet even these basic definitions do not always hold
given the discrepancies in nomenclatures across jurisdictions, particularly evident in
the imprecise usage of the terms “costs,” “surcharges,” “fees,” and “assessments”
(Harris, Huebner, Martin, Pattillo, Pettit, Shannon, Sykes, Uggen, & Fernandes, 2017).
Complicating matters further, a given LFO may be mandatory or discretionary, waiv-
able or nonwaivable after conviction, and may or may not result in the accrual of inter-
est depending on the jurisdiction. The myriad idiosyncrasies of monetary sanctions
across and within states are such that there exists no “typical jurisdiction” (Friedman
& Pattillo, 2019; Martin et al., 2018). With legislatures...
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