Foreword: Fees, Fines, Bail, and the Destitution Pipeline

Abstract

Although the Constitution forbids punishing people simply on account of their poverty, the judicial systems in the United States nevertheless do so in a variety of ways, both direct and indirect. It is important to recognize as a starting point that, as former Chief Justice of Arizona Scott Bales noted: “Any day in the United States about 2.2 million people are incarcerated. Another 4.4 million people are under some kind of penal supervision, probation, parole, and community supervision.” A critical subset of this population is in jail or under supervision because they cannot pay required amounts. Thus, “fines, fees, and bail not only can contribute to cycles of poverty, they can contribute to cycles of criminalization.” Chief Justice Bales was speaking at a panel in September 2019, at a remarkable conference convened at Duke Law School by the Duke Law Journal, the Bolch Institute for Judicial Studies, and the Duke Center for Science and Justice that brought together judges and academics to make progress on issues of fees, fines, and bail.

Imposing mandatory fines and fees on the indigent, regardless of their ability to pay, or denying pretrial release to individuals who cannot pay secured bail has become a subject of mounting judicial, legislative, and public concern. Court debt can take the form of fines and fees — legal financial obligations (“LFOs”) — as well as the use of cash bail to determine who is detained pretrial and who is not. Millions of individuals each year are detained pretrial based on rigid secured bail schedules. In response to budget shortfalls, municipalities and states have turned to such fees as a revenue source, and as a result, court debt has vastly increased over the past three decades. Researchers estimate that these court-imposed financial obligations amount to over $50 billion in the United States. These fines can multiply over time, resulting in mounting debt that in turn can cause individuals to lose their employment, housing, public assistance, driver’s licenses, and voting rights. The abuses of fines and fees in cities such as Ferguson, Missouri — where court fines and fees were Ferguson’s second-largest source of income — have drawn attention to these formerly ignored and highly localized fee practices.

Today, constitutional litigation, new policies and rule-making by state supreme courts and bar associations, and legislation have increasingly addressed the problem of fines, fees, and bail as they affect civil and criminal litigants. A range of jurisdictions have recently overhauled bail and pretrial practices, created new systems to waive fees, and abolished the practice of suspending driver’s licenses for unpaid traffic fees. Drawing on work being done at the intersection of law and policy, in the courts, and in the academy, this conference sought to bring together judges and academics to create a much-needed dialogue on this set of topics. The contributions to this symposium are interdisciplinary, studying the problem of court debt from a variety of perspectives. Sociologically informed work investigates the ways in which court debt burdens the poor and increases inequality. Constitutional analyses examine legal avenues increasingly used in nationwide litigation challenging fines-and-fees practices, including under the Equal Protection and Due Process Clauses. Empirical scholarship explores patterns in imposition of court fines and fees and the use of risk assessment as an alternative to bail in pretrial decision-making. Administrative scholarship surveys the problem from the perspective of judicial procedures used to ensure both access to justice and mechanisms to secure sound funding for judicial functions.

Keywords: Courts, Fees, Bail