DOJ Dear Colleague Letter on Fines and Forfeiture is Another Game Changer

As the Times reports, DOJ has issued and sent to all the state chief  justices and state court administrators a Dear Colleague letter on the subject of court fines and fees.  The helpful and positive tone of the letter is emphasized by the first paragraph of explanation.

In December 2015, the Department convened a diverse group of stakeholders—judges, court administrators, lawmakers, prosecutors, defense attorneys, advocates, and impacted individuals—to discuss the assessment and enforcement of fines and fees in state and local courts. While the convening made plain that unlawful and harmful practices exist in certain jurisdictions throughout the country, it also highlighted a number of reform efforts underway by state leaders, judicial officers, and advocates, and underscored the commitment of all the participants to continue addressing these critical issues. At the meeting, participants and Department officials also discussed ways in which the Department could assist courts in their efforts to make needed changes. Among other recommendations, participants called on the Department to provide greater clarity to state and local courts regarding their legal obligations with respect to fines and fees and to share best practices. Accordingly, this letter is intended to address some of the most common practices that run afoul of the United States Constitution and/or other federal laws and to assist court leadership in ensuring that courts at every level of the justice system operate fairly and lawfully, as well as to suggest alternative practices that can address legitimate public safety needs while also protecting the rights of participants in the justice system. (Bold added.)

Some highlights (with italics representing quotes from the letter itself) — which I urge all to read in full.

Prohibition of incarceration without inquiry into indigency and finding of ability to pay.

Under Bearden, standards for indigency inquiries must ensure fair and accurate assessments of defendants’ ability to pay. Due process requires that such standards include both notice to the defendant that ability to pay is a critical issue, and a meaningful opportunity for the defendant to be heard on the question of hisor her financial circumstances. See Turner, 131 S. Ct. at 2519-20 (requiring courts to follow these specific procedures, and others, to prevent unrepresented parties from being jailed because of financial incapacity).

Requirement of Consideration of Alternatives to Incarceration.

Neither community service programs nor payment plans, however, should become a means to impose greater penalties on the poor by, for example, imposing onerous user fees or interest.

Prohibition of Conditioning of Hearing Upon PrePayment.

This unconstitutional practice is often framed as a routine administrative matter.

Requirement of Notice and, in certain cases Counsel.

Further, courts must ensure defendants’ right to counsel in appropriate cases when enforcing fines and fees. . . . Under the Fourteenth Amendment, defendants likewise may be entitled to counsel in civil contempt proceedings for failure to pay fines or fees. See Turner, 131 S. Ct. at 2518-19 (holding that, although there is no automatic right to counsel in civil contempt proceedings for nonpayment of child support, due process is violated when neither counsel nor adequate alternative procedural safeguards are provided to prevent incarceration for inability to pay). (A footnote in the Letter draws attention to Turner’s distinction of the situation when the opponent is the state.)

Prohibition of Arrest Warrants and License Revocations to Obtain Payment, without procedural protections.

If a defendant’s driver’s license is suspended because of failure to pay a fine, such a suspension may be unlawful if the defendant was deprived of his due process right to establish inability to pay.

Prohibition of Bail and Bond Practices that result in incarceration solely as a result of inability to pay.

When indigent defendants are arrested for failure to make payments they cannot afford, they can be subjected to another independent violation of their rights: prolonged detention due to unlawful bail or bond practices. Bail that is set without regard to defendants’ financial capacity can result in the incarceration of individuals not because they pose a threat to public safety or a flight risk, but rather because they cannot afford the assigned bail amount. (Bold added.)

Obligation to protect against staff or contractor abuse.

Additional due process concerns arise when these designees have a direct pecuniary interest in the management or outcome of a case—for example, when a jurisdiction employs private, for-profit companies to supervise probationers. In many such jurisdictions, probation companies are authorized not only to collect court fines, but also to impose an array of discretionary surcharges (such as supervision fees, late fees, drug testing fees, etc.) to be paid to the company itself rather than to the court.

This is obviously powerful stuff.  It is particularly encouraging that this letter has been issued after an extensive process involving stakeholders, and that this approach is moving forward in close parallel with the Task Force of the Chiefs and COSCA to develop resources and best practices in this area.  Indeed, the work of the task force is partially funded by BJA, as well as by SJI, and BJA will soon be making grants to assist in solving this problem.

Indeed, the scope of the Task Force is Broad.  This are the tasks listed in the above linked release:

  • draft model statutes, court rules, written policies, processes and procedures for setting, collecting and waiving court-imposed payments;
  • compile and create suggested best practices for setting, processing and codifying the collection of fines and fees and bail/bonds;
  • review and revise suggested guidelines for qualifications and oversight of judges in courts created by local governments or traffic courts, including reviewing and updating state codes of judicial conduct and the jurisdiction of judicial conduct commissions to ensure their applicability to all judges;
  • sponsor a court “hackathon” designed to develop innovative technological solutions that ensure courts are providing 21st century customer service through mobile applications and software platforms; and
  • develop an online clearinghouse of information containing resources and best practices.

I very much hope that access to justice commissions will think about the relationship of this initiative to their ever expanding work.


About richardzorza

I am deeply involved in access to justice and the patient voice movement.
This entry was posted in Access to Justice Generally, Bail, Chasm with Communities, Court Fees and Costs, Funding, Judicial Ethics. Bookmark the permalink.

2 Responses to DOJ Dear Colleague Letter on Fines and Forfeiture is Another Game Changer

  1. Lisa Rush says:

    To add to the to-do list:
    – Identify the penalty fees imposed by administrative agencies on top of the criminal court fees.
    – Try to quantify the personal, social, and judicial costs of those fees.
    Example: Texas Department of Public Safety imposes a surcharge fee on people charged with driving and non-driving infractions. Failure to pay the surcharge fees results in loss a driver’s license. Driving with license suspended results in arrest, court fees, and additional surcharges. The defendant says “But I paid the court fees/ticket!” (for the infraction) and someone has to explain that DPS can also impose fees.

  2. Claudia Johnson says:

    I hope the civil legal aid community gets involved in the process of working with their Courts and ATJ Commissions and other stakeholders on implementing these recommendations and changes. Fines and fees disproportionately burden communities of color, so there are serious civil rights and non discrimination implications here. If this is not an area of law where legal non profits have practiced much in the past or at all, I hope that this serves as call to service and start putting attorney resources into helping low income clients clear their fees and fines. The monitoring of what fee vendors and subcontractors are doing to implement the changes will be also equally important, and the opportunity is now open to create triage tools and online resources that can help gather the data to monitor progress by state and by court and develop well thought out plain language resources. Since many facing fees and fines are unrepresented, I am looking forward to learn what self help resources are developed as pilots.

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