It makes no sense to have a system to hold people accountable, to make these financial payments, when they can never be held accountable. It just slowly becomes a permanent punishment.
If you’ve ever had an encounter with the criminal justice system, chances are it came with a price tag. First is the fine associated with a conviction—for a felony, that can easily run upwards of $1,000, and that’s in addition to any time in jail or prison. Then there are the fees collected at almost every step of the process. Various states charge for use of a public defender, a DNA sample, a drug test, a diversion program, your monthly parole meetings, even a jury trial. In some jurisdictions, when you fall behind on those payments, you’ll be hit with interest and more fees. Many court systems rely on this money to fund their own operations, and they often contract private collection agencies who also bill you for their work. And when you can’t pay, you could end up in jail.
Fines and fees are capturing millions of Americans in a cycle of poverty and justice-involvement, and on this episode of New Thinking, host Matt Watkins talks to two people working to interrupt that cycle.
Edmonds Municipal Court Judge Linda Coburn in Washington State believes the system of "legal financial obligations" has grown so complex, judges and attorneys often fail to appreciate the burden being placed on defendants, especially those already struggling to get by. To counter that, she has helped develop an online "ability-to-pay" calculator. It brings together at a judge's fingertips all of the statutes, possible fines, and opportunities for discretion related to a given charge. It also allows a judge to enter in a defendant's financial information, so that defendants are not being set amounts that will trail them for years.
Alexes Harris, the second guest of the episode, is a professor of sociology at the University of Washington and the author of the 2016 book, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor, a detailed study of fines and fees practices in Washington State. She is currently heading up a multi-year research project comparing those practices across eight states.
Harris is gratified by the surge in attention the issue has been receiving, and is hopeful a recent Supreme Court decision will rein in states levying "excessive" financial sanctions. But she worries not enough people—whether among legal professionals or the general public—appreciate the "layers of punishment" low-income defendants are being subjected to.
"I think people are still just using a different color crayon to color within the lines, and we're not yet erasing the lines," Harris explains. "We need to sincerely start from scratch and think through all of the fiscal barriers for individuals that prolong their punishment."
Resources and References
- The Price of Justice, a Bureau of Justice Assistance grant, with technical assistance provided by the Center for Court Innovation, to help jurisdictions address the disparate impact of fines and fees
- Misdemeanors Matter #2: Alexandra Natapoff on a Legacy of Injustice (New Thinking)
- The online "ability-to-pay" calculator designed in part by Judge Coburn
- Summary of Washington's landmark 2018 legislation prohibiting courts from imposing costs on indigent defendants and doing away with interest penalties (previously 12%)
- Timbs v. Indiana (2019 Supreme Court decision on states and "excessive" fines and assets seizures)
- Bearden v. Georgia (1983 Supreme Court decision enjoining courts to inquire into reasons for failure to pay fines and fees; established legal principle of "willful non-payment")
- 'The New Debtors' Prison' (New York Times Magazine, 2019)
- Court Costs Entrap Nonwhite, Poor Juvenile Offenders (New York Times, 2016)
The following is a transcript of the podcast:
Matt WATKINS: Welcome to New Thinking from the Center for Court Innovation. I’m Matt Watkins. If you’ve ever had an encounter with the criminal justice system, chances are it came with a price tag. First is the fine associated with any conviction—if it’s a felony, that can easily be upwards of $1,000, and that’s in addition to any time in jail or prison. Then there are the fees collected at almost every step of the process. Various states charge for a public defender, for a DNA sample, for a drug test, for a diversion program, for your monthly parole meetings, even for a jury trial. When you fall behind on those payments, in some jurisdictions you’ll be hit with interest and surcharges. Court systems often contract private collection agencies who—wait for it—also bill you for their work. And when you can’t pay, you could end up in jail.
Fines and fees are capturing millions of Americans in a cycle of poverty and justice-involvement, and today we’ll talk to two people, who are both working to lessen their impact. In the second part of the show, you’ll hear from Alexes Harris, perhaps the leading researcher on how fines and fees are used across the country. But first up is Edmonds municipal court Judge Linda Coburn from Washington State. She’s come up with an innovative solution to the problem of fines and fees, or as she calls them LFOs, and that stands for legal financial obligations (and please remember that acronym). Prior to joining the bench, Judge Coburn was a public defender. I started by asking her how much she realized then about the impact of LFOs on her clients, especially because, as she explained, most of them were too poor to pay just about any fine a court might set.
Judge Linda COBURN: I would always make an argument for the courts to not impose any mandatory fines and fees. I think for those who are on the extreme end of indigency, that wasn't a problem, but I also represented the working poor. In other words, they weren't completely destitute, but they were barely making ends meet. For some circumstances, I think, legal financial obligations were imposed. I don't think I really realized the long-term impact it had on those defendants because the focus was always on avoiding jail, trying to get the charges reduced.
Most of the time, you spent your work focusing on that. And so even though you had clients who want to please the court and say, "I can make payments of $50 a month or $25 a month," you don't necessarily really understand in their circumstances what they're giving up in order to do that, or how long it's going to take them to actually pay off the LFOs and what implications that that may mean.
WATKINS: What would you say then that you are understanding now better, and how did you come to that understanding?
COBURN: Well, I think after becoming a judge and being on the bench—realizing my role of when I'm imposing it and what are all the laws that are applicable regarding what is mandatory, what can be waived? What can be suspended? What exactly am I assessing for? Also, having a better understanding of this person's going to take five years to pay off what I'm considering imposing, eight years to pay off, four years to pay off, whatever it may be, and is that what I intended?
I think there's a pressure on judges to conduct sentencings and hear as many cases as they can in a short amount of time as they can. I don't know whether it's intentional or not intentional.
I can tell you right now, I can give you an example that I had a pro tem judge in my court who had imposed a high amount of legal financial obligations but allowed for a very nominal monthly payment. I talked to her, and I said, "Hey, did you realize how long it would take this person to pay this off?" When I did the math for her, she was stunned. That's an example where she didn't intend that. If she had known that, she may have revisited what under the law she had the authority to adjust regarding discretionary LFOs, but because she wanted to have the hearing done, move on to the next hearing. She didn't take the time to do the math.
WATKINS: You've talked about how when you were a public defender and perhaps when you started out as a judge, you didn't have a full appreciation of the impact of fines and fees. Now that you have this deeper appreciation, just how big of a role do you see fines and fees playing in the justice system as a whole?
COBURN: I think it plays a huge role. In the state of Washington, we are one of the, if not the, lowest, funded court system in the country. We do not have dedicated funding for our court systems. They are funded by the local jurisdictions. So, there is this inherent creation of the money that is being collected through the courts as being viewed as revenue, and so that creates this difficult dynamic and pressure, whether it's sometimes explicit from the legislative branch of the government or whether it's implicit.
Like, regardless of what you say, everybody knows the dollar amounts you are collecting is going into a fund that therefore is going to pay for the courts.
WATKINS: Well, I take it you're saying that the fact that jurisdictions are using fines and fees to fund their own operations certainly has the potential to set up a kind of perverse incentive to go out there and try to gather more fines and fees.
COBURN: Yes. That shouldn't be the case, right? When somebody's before me and I'm sentencing them, I should consider their charge, their criminal history, what are the facts and circumstances of the case, their financial situation, and their ability to pay and determine what is just and fair. What I shouldn't consider is, "Well, I need to make sure that my clerk gets paid. I need to make sure that I get paid. I need to make sure that we have money to turn the lights on at the court, and that's why I'm going to impose this amount."
I think that creates an inherent conflict of interest.
WATKINS: It sounds to me like what you're describing is a situation where fines and fees are really integral to the justice system. They're in fact a major way that many justice systems are funding their own operations, and yet for years now, judges and attorneys haven't really been properly trained in the ramifications of these fines and fees, and people are regarding them as the fine print of a sentence, whereas in fact they can be sometimes the most onerous part of a sentence.
COBURN: And I would say in some regards, I don't think that they're necessarily naive of sometimes it's going to take him a long time to pay, but I do think the education is not just being educated on the ramifications of the long-term effects, but literally being educated on what the law is, really understanding what the LFO is, and whether you have authority to impose it or not, or reduce it or waive it, or whether you even prohibited from imposing it to begin with. They don't teach you about LFOs in law school, but I think if you're relying on the attorneys to always get it right, I think what's going to happen is that there will be incidents where nobody gets it right.
WATKINS: I mean, I think you've given us a really good sense of the complexity of these laws that would escape any one person's comprehension. You, though, I understand have come up with an innovative solution potentially to this problem. Do you want to talk a little bit about this calculator that you've helped create?
COBURN: The whole purpose of this calculator is to make it available to judges, defense attorneys, prosecutors, advocates, whoever that may be. It will be at your fingertips to really understand, “if this is the crime, then what are the LFOs that could be associated with that crime, or must be associated with that crime?”
Within each of those LFOs: Is it mandatory? Can you waive it? Can you reduce it? Also letting you see what the total amount is—allow you to add, for example, probation assessments and understanding what that means as far as the defendant and their ability to pay that off in a reasonable amount of time.
WATKINS: You're able to integrate into it a given person's financial ability?
COBURN: Yes, so if somebody comes before me and they tell me that they're, for example, on state assistance. The calculator is going to remind me that if they're on state assistance, then they are by law determined to be indigent. If they're determined to be indigent, and I select that category on the calculator, it will automatically lock out cost. It will prohibit me from selecting them, because by law in Washington, we are prohibited from imposing costs on defendants who are indigent.
WATKINS: That's a recent law, right? That is a change that just took place last year in Washington State?
COBURN: Yes, it went into effect in June of 2018. That was a very big change in the law. Prior to that law, there was a requirement that courts consider ability to pay before imposing costs, but the law was read to where they consider your current and future ability to pay. In some instances, what would happen if somebody said, "Well, I'm on food stamps now," and courts would say, "All right, but you could get a job tomorrow, so therefore I'm not finding you indigent."
WATKINS: Do you have a sense of how the calculator has affected, say, the amounts that you're imposing on people, whether those amounts have on the whole gone up or gone down?
COBURN: I think I'm able to do a much more thorough analysis and take into consideration somebody's financial ability and how I can make adjustments. I would say yes, I think I have been less inclined to, previously where I think I imposed $200 inclusive, and then let the clerks break down what that represents. Whereas now, I break down what that represents, and I understand what that means. I can make the adjustments because it's the judge that has the responsibility to exercise that discretion, not the clerks.
WATKINS: I should say that I have colleagues here at the Center who work with you guys as part of the Bureau of Justice Assistance grant on this calculator, that we offer some assistance through that grant, but it sounds like, if I've got this right, that your effort really is to make the fines and fees process more transparent basically to everybody and by doing that, make the process more intentional so people actually know what they're doing.
COBURN: Yes, absolutely. I think it's very challenging for attorneys and judges out there to be able to understand and remember all the different LFOs for all these different crimes. I can tell you, nobody can do that. It's not possible. By law, if we're required to take in somebody's ability to pay and make sure that the payment plan is reasonable, which is what case law has stated, how are we supposed to do that without some type of assistance and help?
WATKINS: Then I realize that you're a judge and so you're perhaps limited in how you can answer this question, but do you have your own sense of just what kind of role you think fines and fees should be playing in an equitable justice system?
COBURN: I can say that the legislature determines obviously the laws that they pass; that is not my role. But I can say that I believe that courts should be adequately have dedicated funding so that that doesn't create an inherent pressure on our system for judges to feel, whether it's explicit or implicit, the pressure to impose LFOs on somebody who really doesn't have the ability to pay.
WATKINS: I mean, that must be a lousy feeling as a judge to be handing down a sentence and realizing as you do it, this person's never going to be able to pay this.
COBURN: Yes, it is. In some cases, there's mandatory LFOs that we must impose, and we look at this person, we look at their history, and do we think that that's going to be able to be paid? No, and it's not always because it's out of being stubborn or willful, but out of the facts and circumstances of their case: the long term mental health issues that they have, the substance abuse issues that they're struggling with and trying to deal with, the fact that they're homeless and they have no place to live or struggling to figure out when their next meal is. But, you know what, for some LFOs, that may not matter. I may be required to impose it.
WATKINS: That was Washington State municipal court judge Linda Edmonds. There’s a link to the ability-to-pay calculator she helped design on our website. Go to courtinnovation.org/newthinking.
Next up is Alexes Harris. She is a professor of sociology at the University of Washington and the author of the 2016 book, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor. It’s a detailed study of fines and fees practices in Washington State. Professor Harris is currently heading up a multi-year research project comparing those practices in eight states. You can look for results from that work, funded by Arnold Ventures, within the next year or so.
I began our interview by asking Professor Harris whether there are generalizations we can make about the kinds of people most often being subjected to fines and fees.
Alexes HARRIS: Definitely. We know in general, the people who make contact with our systems of justice, particularly in the superior courts at the felony level, tend to be unemployed, underemployed, low-economic groups, have mental health issues, and drug and alcohol addiction. So this is already, in general, disproportionally a marginalized population, and then we saddle them with a felony conviction, which has a host of consequences, and in addition to the financial debt. It makes it very, very difficult for people to be rehabilitated or reintegrated into their communities.
WATKINS: Right, you're saddling people with these large debts at the same time that they have a felony conviction, which is preventing them from getting the kind of employment that would allow them to pay the fee.
HARRIS: Exactly, and some employers these days are looking at credit scores, right? So there's a direct relationship to how this debt can impact negatively people's ability to access employment. And I definitely saw it in the work that I did in my book, that it impacted people’s ability to find housing—secure, safe housing—to get access to vehicles or loans, things like that. It just creates these huge barriers, and it's ironic, because the state policy makers that set these laws, this isn't a collateral consequence. This is a purposeful consequence that our policy makers have created for individuals who make contact with our systems of justice, and it's completely counter to everything that we know, as sociologists, as criminologists, about what people need to do, or the types of supports and circumstances that people need to have post-incarceration and conviction in order to be successful and move forward with their lives.
WATKINS: And how much has the practice of fines and fees, how much has it grown in recent decades?
HARRIS: My argument in my book is that as the result of mass conviction and incarceration, we've seen states in the 90s and the early 2000s dramatically expand the types of fines and fees that can be imposed, and the amounts of fines and fees that can be imposed. My argument is that local jurisdictions and state jurisdictions just realized that they can't afford the cost of our mass system of criminal justice.
So we've always had fines associated with our criminal justice system since its inception, but this is a more recent phenomenon, that it seems that our policy makers have been saying, “Oh, we can't afford what we're doing. 100% of our general fund is going to be towards criminal justice cost. How can we decrease the costs?” And instead of thinking outside the box and saying, “Well, how can we decrease the numbers of people we're bringing in?” They're saying, “Well, let's just charge the people we're bringing in," without logically thinking that through, and recognizing that they have a population that is severely hindered in their ability to be successful in society. And that's why they're making contact with the systems of justice in the first place.
WATKINS: So the system is using the fines and fees, to some extent, to fund itself. I mean, beyond the perverse incentive that provides a justice system, how profitable is that?
HARRIS: There's no fiscal accounting system that allows one, like myself, to dig in and really map out where that money goes. In order to really figure this out, we have to have jurisdictions that are willing to open their books and help us understand, "How much are you really recovering? How much are you spending on collections and sanctioning for non-payment? And then, how much are you generating to put back into your local government?" So we're digging into this now. I don't think it is very profitable. I challenge you to find any municipal or county clerk that can detail this out for you, because I don't think the local jurisdictions know what's happening.
WATKINS: I mean, it stands to reason that if you're trying to collect money from a lot of people who don't have very much to begin with, you're probably going to spend a fair bit going after them and not get much in return, no?
HARRIS: Right, and I don't have the numbers right in front of me, but the average payment amounts are very little: under $30 per open account annually, in many jurisdictions in the state of Washington. So the state of Washington, in 2015, generated $30 million, which sounds like a lot, but on the average $30 per open account annual payment. That means they're collecting this money from people who have no money, and a number of people across the state to generate $30 million. So it just seems like a very fruitless endeavor—getting blood from stones, or drawing blood from stones. It just makes no sense intuitively whatsoever in terms of generating money for local jurisdictions, and in terms of creating public safety, and in terms of supporting individuals who have done a wrong to society, have paid their sentence, in terms of spending time in jails and prisons, and having that conviction on their record, not allowing them to move forward in their lives to be successful citizens.
WATKINS: We always hear this phrase "fines and fees" together. Could you just briefly explain what each of them are, and then the way they work together to often create this kind of ballooning, I think you call it, a permanent fiscal sentence?
HARRIS: Right. Permanent punishment for the poor is what I call it. So in general, I refer to these as monetary sanctions, or legal financial obligations. But there are a few buckets; so the first bucket is restitution, and that's a financial sentence that people are given after conviction. And that is the amount of money that is supposed to be directly paid towards my victim. So if I steal somebody's car, and that victim had to pay insurance or whatever, I owe them that amount of money. So that's restitution, and that's part of your punishment.
Fines is also part of punishments, and theoretically, it is supposed to be a punishment. It's supposed to curb the offender and set up a system where I'm not going to do that again. So if I'm speeding and I know I'm going to get a ticket, and I get that ticket, I might not speed again, because I don't want to pay that fine. And fines are associated with a particular type of offense. Maybe $2,000 for your first drug offense conviction, and then it might raise on subsequent convictions. And both of those are supposed to be punitive, related to your punishment.
Fees are user fees, user costs, to use the court system. This is what our taxpayer money actually should go towards in the criminal justice system, but fees are for people who go through the court. You pay for a jury fee; if you opt for a jury to hear you, to adjudicate your case, you're charged for that jury. There's $200 in Washington for just paperwork and processing.
WATKINS: Yeah, I was just going to say, I was really struck by that one, because you know, reformers often refer to something informally called "the trial penalty," which is this notion that the system punishes you for not taking a plea deal, but forcing them to give you an expensive trial. But this is a literal trial penalty.
HARRIS: You have to pay to have a jury of your peers adjudicate you? Yeah, so that runs counter to all of our notions - a lot of this runs counter to our notions of justice!
WATKINS: Paying for a public defender, for example.
HARRIS: Exactly. In one of our counties, you pay $450 for a court appointed attorney. You pay to enter into a review, a fiscal review. You have to pay to apply to have a public defender. A lot of people don't realize that. You can be charged for your daily stay in a jail or prison. You're charged a booking fee, you're charged when you're put on probation.
And I think that when people hear this, sometimes they get frustrated and think that I'm trying to romanticize people who break the law, or saying, "Don't give them any punishment." And I am not saying anything like that; what I'm saying is that we need to create a system that allows people to be punished and recognize that what they've done is wrong. And many of the people that I've interviewed have said this: "I know I need to be held accountable. And I want to pay my restitution. But I can't pay these fines and fees and interest. The system knows—they." Oftentimes that's the word that's used— "They know I'm unemployed." Or, "They know I'm going to have a hard time getting a job." So it makes no sense to have a system to hold people accountable, to make these financial payments, when they can never be held accountable. It just slowly becomes a permanent punishment for people who are poor in our society.
WATKINS: Yeah, I've seen, I think, the family of a young man who was assessed with all kinds of fines and fees describe it as, "Feeling like you're drowning in a swimming pool, and they just keep adding more water over top of your head."
HARRIS: That's what people say. They make a payment—particularly because of the interest, and hopefully this will change in the next couple years, we'll see it—but particularly because of the interest and the additional surcharge for collections, people say, "I make a $20 payment. But every month, it just gets bigger and bigger." And in some jurisdictions, the local jurisdiction, either the municipality or the county, will transfer the debt to a private collections agency. And in Washington State, that private collection agency can add 50% to that principal. So I owed $2,000, they could add another $1,000 to that. So that's a whole other part of the story, is that in every way that people are being charged from being in jail for certain things, private probation, private collections, a literal captive audience has to pay to make profits for private companies.
WATKINS: So in your observations, how much do you think judges actually understand about the fines and fees system? And about the kind of amounts they're imposing? It sometimes strikes me that it sounds a bit like a rental car agreement, where you get one price that gets you into the deal, and that's the price maybe the judge is quoting you from the bench. And then you go to the window, and discover that it's four times higher and eight years later, it's X number of times higher than that.
HARRIS: So individuals are shocked when they get their bills, and seeing it balloon. I don't think that any one major decision maker—so a clerk, a prosecutor, a judge, a public defender—really understands the enormity of the system of monetary sanctions. I think they see their one particular role, so I think you're right, judges sentence. And they may think that's it and don't necessarily recognize that it's going to balloon.
But I do think more and more increasingly, there's been so much conversation locally and nationally, and also within other states, that judges are aware. And some, the ones that I've interviewed in Washington, there was a split. Some thought that the system was counterproductive, and they didn't want to be collection agents. And they sort of recognized that the population that they were managing had a really difficult time with the debt that was going to be imposed on them.
However, other judges felt that this was part of breaking the law, that you do the time, you pay the crime, whatever it is. And so other judges, and prosecutors, and clerks, felt that this was a system of accountability—this is another way, from a paternalistic standpoint, that individuals can be held accountable and show that they're remorseful for their crime.
So even one policy maker I interviewed said that, "The system allows for people to every month make a payment and then express their remorse." And then my question is, "How long do people have to express their remorse for what they've done?" For wealthy people, they can express it and pay it, right? And for poor people, they have to express it every month for the rest of their lives? Again, it just highlights how unfair the system is.
WATKINS: And so you've done this in a pretty close investigation of practices in a collection of counties in Washington state. You're also doing some more national work. Is there consistency, at least, in the system—across states, say, in how the system is applied?
HARRIS: In Washington, I found this huge variation in the five counties that I studied, and the ways in which judges interpreted the state statute, applied it, and then monitored individuals. So, from one end of the continuum, judges would impose it, at the minimum amounts, and not really incarcerate unless people were not paying for restitution. In other counties, anyone who owed any debt would regularly have warrants put out for their arrest, and they'd be incarcerated for up to 60 days.
WATKINS: So it's not uncommon, then, for people to end up in jail for being unable to meet their debts, in this case, a debt to the court system?
HARRIS: No, it's not uncommon at all. And people wonder why we don't have debtor's prisons. So we had the Bearden v. Georgia case, which established the concept of willful nonpayment, that people could not be incarcerated solely for their inability to make payments.
So what's supposed to happen if someone has this debt, they're not making payments, the court should summon them to court. Many times—again, this is a problematic system, because in part, we have a population that has a host of issues—many times, people won't go to court because they're fearful they will be incarcerated. And if that happens, people will have warrants put out for their arrest, and they can be re-incarcerated. In either case, and times when people come to court—and I've seen this in the courts I've observed—if they respond to that summons, they go to court and say, "I don't have money." The judge is supposed to have a hearing to determine whether or not the reason that they chose not to pay—that they have the resources, but chose not to make a payment. And if that's the case, then they can be incarcerated.
That sort of standard varies from judge to judge, in terms of how it's interpreted. So when I was doing my research, I saw judges ask about women's manicures. "How much did you spend on that?" A prosecutor told me he asks people who tell him that they can't make payments, "Do you smoke cigarettes? And if you do, how many packs are you smoking a month?" I literally was in a hearing and saw a judge ask a woman about her tattoos. "How much did you pay for those tattoos?"
So judges and prosecutors are, in some spaces—I'm not saying in every court—but in some spaces, the way that they're interpreting willful nonpayment is their own personal judgment on what people should be using their resources for. And then people can be sentenced up to 60 days; one jurisdiction had a $300 pay-or-stay. So you pay $300 now, if they're picked up on a warrant, you pay $300 now, or you stay for 60 days. So, there is a legal protection, but the problem is that our courts at the state level have not established how judges should be interpreting the criteria by which judges should be interpreting willful nonpayment.
WATKINS: But do you think there is a proper, I guess more contained role for legal financial obligations within the system? Or is it your position that the system would function better pretty much without them?
HARRIS: I don't think the general public understands the layers of punishments that people receive. They go to jail or prison, but they also have community supervision post-release. They might have community service they have to perform, they might have to have drug-and-alcohol assessment and treatment that they have to pay for. They might have to attend victim's classes, they might have electronic home monitoring. So there's several layers of punishment, and in addition to that, they have a felony conviction with a host of collateral consequences. So I argue that we don't need an additional fine or fee at the felony level for individuals. They have enough punishment at that level.
Now, the misdemeanor and the traffic tickets are a different issue, because many times, those people aren't going to jail or prison and have these other punishment options. And so what I would argue at those levels is that we need to have some sort of graduated sanction. In many other countries around the world, they find systems, and under those systems, their offense has a score, a number associated with the offense that they're convicted of. And then their average daily wage is another score, and those two numbers are then multiplied, and so that number, what that gives us, is the fiscal amount that they're sentenced to. And it's proportionate to the offense, in terms of the severity of the offense, and it's proportionate to what the offender can pay.
WATKINS: And what did you make of this recent, unanimous Supreme Court decision holding that the Constitution's prohibition on excessive fines applied to the ability of state and local governments to levy fines and fees? Do you see that as having a significant impact?
HARRIS: Oh, I'm hopeful it will have a significant impact. I feel that it's extremely exciting that states now hopefully will start thinking about, "What does excessive mean?" And that's another conversation we need to start having. Our courts, I'm assuming, will have more challenges now at the state level of excessive fines, fees, and forfeitures that are being imposed on individuals. And I'm hoping our courts will start to suss out, "What are the criteria for what excessive means?" I also am excited to see, in both Ginsburg’s and Thomas's decisions, that they linked excessive forfeitures with the Black Codes and convict leasing programs. And so they even recognize, a conservative Supreme Court Justice, recognizes how the criminal justice system has moved into an arena that's consistent with prior forms of abusive practices.
And so I'm hoping this can help us create more momentum to talk about these key issues, and thinking through how, if we really want to be a just society like we claim we are, how can we hold people who violate the law accountable in a way in which they can meet that accountability, repent, and move forward with their lives to be productive and successful, happy citizens?
WATKINS: Yeah, from that perspective, it also seems hopeful that the issue of fines and fees appears to be getting a lot more attention of late—in media coverage, and public discourse, and I think from criminal justice reformers as well. Do you have a sense of what the future could be for reforming this system?
HARRIS: In my mind, it has to be piecemeal—state by state, has to occur. And we have some leaders that are making changes. Smaller things, not just court and post, but other ways that the justice system is profiting off of individuals. So for example, in New York, doesn't allow the private profiting off of collect calls anymore from prisons. But in California, eliminating juvenile fines and fees is an amazing step forward in recognizing that people who can't work can't pay back this debt. Legally, they can't work, children, up to certain ages, so it does not make sense to impose a debt on them. So states are moving forward by eliminating discretionary fines and fees or things like that. Washington, with the 1783 bill, now set a standard for indigents, in particularly with regards to mental illness that people cannot have discretionary fees imposed.
But I still argue that right now, if you think of my son's coloring book, and he colors within the lines, I still think that people are just using a different color crayon to color within the lines. And we're not yet erasing the lines, and that's what I think we need to do. I think we need to sincerely start from scratch and think through and map out all of the fiscal barriers for individuals that prolong their punishment and re-create a system that allows people to be treated as human, that allows them to be successful and not have these financial hurdles for the rest of their lives.
WATKINS: Well, that sounds like a pretty admirable goal. Professor Harris, I want to thank you so much for making the time to join us today.
HARRIS: Oh, sure. It was really nice to talk with you.
WATKINS: That was Alexes Harris. She is a professor of sociology at the University of Washington and the author of the 2016 book from the Russell Sage foundation: A Pound of Flesh: Monetary Sanctions as Punishment for the Poor.
For more information about this episode visit our website, that’s courtinnovation.org/newthinking. For their help with this episode I’d like to thank two of my colleagues here: Yolaine Menyard and Katie Crank, along with Lindsey Smith at Brooklyn Defender Services. This show is edited and produced by me, you can find me on Twitter @didacticmatt, if you have any feedback to share. Technical support is from the resonant Bill Harkins. Our director of design is Samiha Amin Meah. Our VP of outreach is Emma Dayton. Our theme music is by Michael Aharon at quivernyc.com, and our show's founder is Rob Wolf. This has been new thinking from the Center for Court Innovation. I’m Matt Watkins. Thanks for listening.