The U.S. Supreme Court is also reconsidering fines and fees this week

In 2015, the Department of Justice’s Ferguson report described predatory policing and court practices in Ferguson, Missouri. The report brought national attention to the problem of how fines and fees imposed in connection with the criminal legal system can impoverish and oppress those least able to pay. Since then, states and localities across the country have slowly begun, as a result of litigation and legislation, to address these practices.

Last week, the Alameda County Board of Supervisors voted unanimously in favor of an ordinance that would eliminate certain administrative fees for people who are convicted of crimes. The ordinance is expected to pass after a second reading on Dec. 4 and would take effect in January. If it passes, Alameda will become the second county in California and in the country, after San Francisco, to use its discretion to eliminate fees in connection with the criminal legal system.

The fees at issue are for probation supervision, representation by the public defender’s office, and participation in a sheriff’s work program. The ordinance also includes a provision to waive millions of dollars in fees that have been imposed but not collected. The probation department, sheriff’s department, and public defender’s office—which are all assigned revenues from fees—supported the measure. Public defender Brendon Woods told supervisors at a September meeting: “It is clear from our clients … that based on their income and resources they cannot afford counsel. We should be providing them with representation at no cost.” Representatives of the probation and sheriff’s departments testified that the fees create financial burdens that are often crippling for the people charged and, in the vast majority of cases, result in little revenue.

Last year, San Francisco became the first jurisdiction in the country to stop charging fees, including for probation, electronic monitoring, and jail booking. The ordinance passed by its Board of Supervisors described how the financial penalties could “push people into poverty, or push them even deeper into poverty if they already were there.” Under this system, “government becomes a driver of inequality, creating additional layers of punishment for those moving through the criminal justice system.” These penalties, also, “frequently hit individuals at the precise moment they are trying to turn their lives around.”

The San Francisco ordinance could not eliminate all fines and fees imposed through the criminal legal system since many are mandatory under California law. The discretionary fees it eliminated included a $50 monthly probation fee, which added up to $1,800 for the average three-year probation term, and a $35 daily ankle bracelet fee, imposed on people placed on electronic monitoring.

Fines and fees are one of the many ways in which the criminal legal system places the heaviest burden on communities of color. Writing in the Washington Post last year, Joanna Weiss and Lisa Foster of the Fines and Fees Justice Center pointed to a study that found a “clear positive relationship” between revenue from fines and fees and the proportion of Black residents in a city. Furthermore, cities with Black city council members were found to be much less likely to rely on fines and fees for revenue than those without them.

In Alameda County, Black residents make up only 11.3 percent of the population but comprise 47 percent of those on probation. Black and Latinx people together accounted for over 70 percent of those on probation. Alameda County charges some of the highest fees in the Bay Area. The East Bay Community Law Center (EBCLC) found that the average adult on probation in Alameda County in 2018 could be assessed over $6,000 in probation supervision fees, public defender fees, and sheriff’s work alternative program fees. And while state law requires that probation departments determine a person’s ability to pay before charging fees, EBCLC found that the Alameda probation department failed to do so.

This week, the issue of states imposing fees and fines will also come before the Supreme Court in Timbs v. Indiana. Tyson Timbs, who pleaded guilty to a drug sale involving $225 in 2012, is challenging Indiana’s seizure of his Land Rover, worth $42,000, on the grounds that the state violated the Eighth Amendment protection against “unreasonable fines.” At issue in the case is whether that protection is applicable against the states. (The Supreme Court has not previously resolved the question.) And though the specific practice at issue in Timbs’s case is civil forfeiture, a prohibition on excessive fines applicable against the states would have widespread implications for the practice of imposing fees and fines on people in the criminal legal system.

Amy Howe, writing for Howe on the Court and SCOTUSblog, said that Timbs, who is represented by the libertarian Institute for Justice, “came to the Supreme Court with one of the most diverse collections of allies in recent memory,” from the ACLU to the U.S. Chamber of Commerce. Howe notes that among Timbs’s arguments is that when the Eighth Amendment was ratified in the 1790s, nine of the 13 states at the time had constitutional provisions guarding against excessive fines. “By the time the 14th Amendment was ratified in 1868, all of the states included protection from excessive fines in their constitutions.” States routinely deployed onerous fines and forfeitures against their Black citizens after the Civil War, including for such “crimes” as performing interracial marriage and teaching at Black schools.
published Nov. 26, 2018 in the Daily Appeal