Predatory fines and fees: Revenue, fiscal contrition, and policy change

• Published date: 01 October 2023
• Author: Karin D. Martin
• Date: 01 October 2023
• DOI: http://doi.org/10.1111/lapo.12228

ORIGINAL ARTICLE

Predatory fines and fees: Revenue, fiscal contrition,

and policy change

Karin D. Martin

Daniel J. Evans School of Public Policy &

Governance, University of Washington,

Seattle, Washington, USA

Correspondence

Karin D. Martin, Daniel J. Evans School

of Public Policy & Gov ernance, University

of Washington, Box 353055, Seattle,

WA 98105, USA.

Email: kdmartin@uw.edu

Funding information

Arnold Ventures

Abstract

Fiscal contrition refers to the phenomenon of policy-

makers becoming aware of the social costs of fines and

fees, recognizing a need to reduce those costs, and taking

action to do so. In order to reveal the occurrence of fiscal

contrition, this analysis examines detailed budget data

from three U.S. counties. Findings indicate a dominance

of predatory over punitive monetary sanctions in county

budgets. That is, fines and fees that extract revenue from

a justice-involved population are more common than

those with social control objectives. The analysis also

reveals patterns and nuances in fine and fee usage and the

revenue they produce, which illuminates pathways for

reducing reliance on fine and fee revenue. This approach

provides useful context for the burgeoning scholarship

focused on the role of monetary sanctions in fueling social

inequities.

1|INTRODUCTION

The literature on monetary sanctions provides consistent and abundant evidence of the harm caused

by failing to pay criminal legal debt. Scholars have now documented how this form of debt prompts

everything from incarceration for non-payment (Harris et al., 2016) and extended probation (Diller

et al., 2010) to voting disenfranchisement (Fredericksen & Lassiter, 2016; Sebastian et al., 2020),

damaged credit reports (e.g., Diller et al., 2010), and suspended or revoked drivers’licenses (Harris

et al., 2016). In myriad ways, monetary sanctions perpetuate inequality (Beckett, Harris, & Evans

2008;Friedmanetal.,2022; Harris, 2016; Harris et al., 2010)—often ensnaring families in perpetual

efforts to pay, while navigating the consequences of nonpayment (deVuono-powell et al., 2015;

Katzenstein & Waller, 2015; Nagrecha et al., 2015). These harms become further magnified for those

with a history of incarceration (e.g., Council of Economic Advisers (CEA), 2015;Harris,2016;

Harris et al., 2010; Henricks & Harvey, 2017; Link, 2019; US Commission on Civil Rights, 2017).

Overall, the monetary sanction system is characterized by a lack of transparency, wide vari-

ation in the imposition and collection of these sanctions across jurisdictions, as well as increased

DOI: 10.1111/lapo.12228

©2023 University of Denver and Wiley Periodicals LLC.

Law & Policy. 2023;45:459–481. wileyonlinelibrary.com/journal/lapo 459

debt and extralegal consequences for failure to comply with payment terms (Shannon

et al., 2020; see also Harris et al., 2016). The resulting concern with inequity, disproportionate

punishment, and punishing poverty should be seen clearly in light of the tremendous amount of

unpaid court-ordered debt. One recent analysis of three states concludes that such debt

increased by $1.9 billion between 2012 and 2018 (Menendez et al., 2019). Another finds that

national court debt is at least $27.6 billion, but that only 14 states were able to provide full

information about the amount owed (Fines and Fees Justice Center, 2021).

As evidenced by the magnitude of outstanding criminal legal debt, the effectiveness of using

fines and fees as a source of revenue is questionable (Crowley et al., 2020; Menendez

et al., 2019; Ward & Link, 2022). Nevertheless, converging evidence indicates that jurisdictions

do indeed pursue these sanctions for revenue purposes (e.g., Martin, 2018), a trend that emerged

with the rise of mass incarceration (Beckett & Harris, 2011). Using money in punishment is an

ancient practice (for an overview beginning in Biblical times, see Sichel, 1982). However, the

more predatory approach of attempting to recoup costs and generate revenue from a justice-

involved population—regardless of widespread inability to pay—is a more recent phenomenon

(e.g., Kirk et al., 2020). For example, in Texas (location of one site in the present study), the

expansion in revenue-seeking fees arose from efforts to improve probation as that population

grew (Jermstad, 2019). Yet, the result has been significant increases in the financial burden on

probationers and the proliferation of court costs more broadly (Jermstad, 2019).

Eighty percent of cities in the U.S. with law enforcement institutions collect revenue from

fines, fees, and asset forfeitures (Sances & You, 2017). Moreover, collecting revenue from fines

is widespread and has a significant association with the proportion of a city’s Black population

(Sances & You, 2017). Yet, a city’s reliance on fines can be explained by neither budgetary need

nor public safety costs. Rather, use of this revenue source is associated with the racial composi-

tion of the population and of law enforcement (Singla et al., 2020). That is, although one may

expect that pure financial need would account for how much a city relies on revenue from fines,

instead race is actually a dominant factor.

Despite the shortcomings and ethical considerations of relying on fines and fees as a source

of revenue, jurisdictions are increasingly doing so. Escalating fees for (noncriminal legal system)

services has been the most common approach to increasing city revenue over the past two

decades (McFarland & Pagano, 2018). A 2019 report found that 43% of cities had increased the

dollar amount of fees and 26% had increased the number of all fee types in the past year

(McFarland & Pagano, 2019).

As fines and fees proliferate, so do reform efforts (for an overview, see: Fernandes

et al., 2019). Advocacygroups have been sounding the alarm about the individual andsocial costs

of criminal legal debt for more than a decade (e.g., American Civil Liberties Union, 2010;Diller

et al., 2010). The 2014 events in Ferguson, MO and the subsequent Department of Justice investi-

gation and report (Shaw, 2015) further spurred interest in mitigating the harm of unpaid mone-

tary sanctions. Recent reforms include bench cards

1

for judges (e.g., Biloxi Municipal

Court, 2016), amnesty programs (e.g. Iowa Department of Revenue, 2010; Judicial Council of

California, 2017), and repeals

2

of some types of monetary sanctions (e.g. Valle & Carson, 2016).

Notably, reforms tend to center on court practices and legislative changes, as opposed to consid-

erations of revenue or costof collection.

Although fines and fees have well-documented negative impacts prompting widespread

reform efforts and even as reliance on this revenue source continues, understanding the role of

predatory fines and fees in government budgets remains largely unexplored. The questions,

then, are what can we learn about the prevalence of predatory fines and fees by examining

budgets and what are the implications for reducing reliance on these sanctions?

Addressing these questions requires clarity about the nature of criminal fines and fees. As

an alternative to incarceration, fines can achieve valid punishment goals but with reduced social

costs. However, the revenue incentive can pull the justification for monetary sanctions away

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