Fighting Fines & Fees: Borrowing from Consumer Law to Combat Criminal Justice Debt Abuses
73 Pages Posted: 20 May 2017 Last revised: 7 Jun 2017
Date Written: April 16, 2017
Although media and academic sources often describe mass incarceration as the primary challenge facing the American criminal justice system, the imposition of criminal justice debt may be a more pervasive problem. On March 14, 2016, the Department of Justice (DOJ) requested that state chief justices forward a letter to all judges in their jurisdictions describing the constitutional violations associated with the illegal assessment and enforcement of fines and fees. The DOJ’s concerns include the incarceration of indigent individuals without determining whether the failure to pay is willful and the use of bail practices that result in impoverished defendants remaining in jail merely because they are unable to afford bail. Criminal justice debt, also known as legal financial obligations (LFOs), impacts not only those incarcerated but also millions of others who receive economic sanctions for low-level offenses, including misdemeanors and ordinance violations. LFOs, which include bail, fines, and fees, are imposed at every stage in the justice process, including pre-conviction, sentencing, incarceration, and post-release supervision.
For those who are unable to pay criminal justice debt, “poverty penalties” are often added in the form of charges for interest, payment plans, late payments, and collection. As incarceration rates and local budgetary concerns have increased, so too has the imposition of LFOs. Moreover, while authorities are trying to reduce incarceration, criminal justice debt may become an even greater concern, as one popular alternative is decriminalization and the imposition of monetary charges. Often the financial charges are unrelated to the traditional notions of punishment or protection of public safety and instead, reflect a desire to maximize revenue collection. Many municipalities outsource services to private probation companies and collectors, which are often unsupervised and use collection procedures not authorized for private parties. Moreover, new technologies allow for additional collection abuses. To date, states and municipalities have been ineffective in preventing abuses associated with criminal justice debt. Relying on the approach used for consumer debt collection, I propose a federal solution. The Fair Debt Collection Practices Act (FDCPA) and the Consumer Financial Protection Bureau (CFPB) provide the foundation for a federal framework for addressing problems with the collection of consumer debts. I contend that the justifications that supported the federal statutory and administrative solution for consumer debts are at least as significant, if not greater, for a similar framework to combat abusive criminal justice debt practices.
Not only do individuals with criminal justice debt encounter the same abuses and consequences that consumer debtors face — including harassment, negative credit reports, and the adverse impact on financing and employment prospects — but they also face denial of welfare benefits, suspension of driver’s licenses, arrest, and incarceration. In practice, the imposition of criminal justice debt reflects actual discrimination and creates distrust in the system. Accordingly, I advocate the adoption of a federal act and the use of the DOJ to coordinate enforcement and outreach activities to attack abuses in the collection of criminal justice debt.
Keywords: criminal justice debt,bail, fines,fees,criminal law,poverty law,social justice,consumer law,FDCPA,CFPB,DOJ,debtors'prisons,discrimination,Ferguson, poverty penalties,equal protection,probation,consumer debt
JEL Classification: D18, D63, I30, I31, I32, I39, K14, K40, K42
Suggested Citation: Suggested Citation