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Reconsidering excessive fines and fees, from California counties to the Supreme Court

What you’ll read today

  • Spotlight: Reconsidering excessive fines and fees, from California counties to the Supreme Court

  • Jeff Sessions left behind a record-breaking prosecution machine

  • The impact of the California law that scales back the felony murder rule

  • Body camera video shows Milwaukee police shooting an unarmed man

  • Police officers in schools don’t make students safer

  • A proposal to allow people with felony convictions to serve on juries in New York

In the Spotlight

Reconsidering excessive fines and fees, from California counties to the Supreme Court

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. [Bay City News Service]

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. [Bay City News Service]  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. [Megan Cassidy / San Francisco Chronicle]

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.” [San Francisco Ordinance No. 180132]

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. [Joanna Weiss and Lisa Foster / Washington Post]

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. [Joanna Weiss and Lisa Foster / Washington Post]

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. [East Bay Community Law Center]

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. [Adam Liptak / New York Times]

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. [Amy Howe / Howe on the Court and SCOTUSblog]

Stories From The Appeal

Illustration by Ariel Davis

Jeff Sessions Left Behind a Record-Breaking Prosecution Machine. The program was supposed to target ‘leading’ violent offenders. Today it’s sweeping up low-level, and disproportionately Black, defendants. [George Joseph]

Stories From Around the Country

The impact of the California law that scales back the felony murder rule: Jordan Smith of The Intercept reports on the legislation recently enacted in California that significantly narrows the scope of the state’s felony murder law. Senate Bill 1437 was signed into law by Governor Jerry Brown in September and will go into effect Jan. 1. The new law bars prosecutors from using a person’s intent to commit one crime—robbery, for example—to convict them of a homicide committed in the course of that crime, without additional evidence that the person played a direct role in the killing. In California, as in the majority of states that still have felony murder laws, the law allowed for the prosecution and sentencing for murder of people who played no role in a killing. A full 72 percent of women serving life sentences in the state because of the law did not kill anyone. The law’s impact should be considerable for two reasons: It is retroactive and it applies to people convicted through plea deals. [Jordan Smith / The Intercept]

Body camera video shows Milwaukee police shooting unarmed man last year: Two Milwaukee police officers shot Jerry Smith Jr. during a rooftop encounter last August. Smith survived, but the private investigator working on his civil rights lawsuit told the Milwaukee Journal-Sentinel that he had to undergo several surgeries and will be permanently paralyzed in his right leg. It was the private investigator who released the video from one of the officers’ body cameras. Wisconsin law requires fatal police shootings to be investigated by outside agencies, but in the case of Smith’s (nonfatal) shooting the Milwaukee police department conducted its own review. The district attorney’s office concluded in June that the officers were justified in shooting Smith because they believed he had a gun or was reaching for a gun at the time that they shot. No gun was ever found, and Smith was not charged with a crime. [Bruce Vielmetti / Milwaukee Journal-Sentinel]

Police officers in schools don’t make students safer:  A new study looking at security in North Carolina schools casts doubt on the assumption that putting more police officers in schools makes them safer. Kenneth Alonzo Anderson, a professor at Howard University, looked at the impact of additional funding for school resource officers (armed law enforcement in schools) in North Carolina middle schools starting in 2013. Anderson compared school districts that received the additional funding with districts that did not and found no relationship between increased funding and reductions in the 16 disciplinary acts that must be reported to the state. The Education Justice Alliance, a local group, called for the removal of all police officers from schools in Wake County, North Carolina, last year, arguing that Black and Latinx students feel discriminated against by officers and echoing concerns from around the country that school resource officers contribute to an overpolicing of students of color. [T. Keung Hui / News & Observer] See also In our March 6 newsletter, we looked at the costs of school “safety” for Black and brown students.

A proposal to allow people with felony convictions to serve on juries in New York: State Senator Brian Benjamin of Harlem, a Democrat, says he will introduce a bill to restore the right to serve on a jury to people with felony convictions who have completed their sentences. Currently, this is only possible with formal permission from the state corrections department. Republican State Senator Patrick Gallivan, the departing chairperson of the crime and correction committee who has been a powerful foe of reform efforts, has said that he is not necessarily opposed to the bill since it would apply to people who have completed their sentences, including any parole terms. In January, Democrats will form the majority of both houses of the state legislature. [Kenneth Lovett / New York Daily News]

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