Nickels and Dimes? Rethinking the Imposition of Special Assessment Fees on Indigent Defendants

39 Pages Posted: 22 Jul 2021

Date Written: July 19, 2021


The Eighth Amendment to the United States Constitution bars the imposition of “excessive fines.” Despite this seemingly straightforward mandate, case law is not harmonious on the meaning of “excessive” under the Eighth Amendment. Significant questions persist as to whether imposing an economic sanction on a defendant that lacks any ability to pay is incongruous with the Amendment’s prohibition on excessive fines. Although the relevance of the “ability to pay” question to the excessiveness inquiry was acknowledged by the Supreme Court in the 2019 case Timbs v. Indiana, the Court left the resolution of the question for another day. This Article laments the Court’s decision to pass on this examination. It does so by analyzing the imposition of special assessment fees on indigent criminal defendants, an aspect of sentencing that has received remarkably little attention from legal scholars and practitioners.

The starting point is an overview of the special assessment fee structure and how it compares to other economic sanctions imposed in the criminal legal system. When a defendant is sentenced, no fine is imposed if the judge determines that the defendant lacks the ability to pay any fine. In such circumstances, explicit in the judge’s determination is that the defendant is too poor to pay any amount of money. But the current special assessment fee structure requires every individual defendant to pay a $100 special assessment fee for each federal crime committed, even if the judge has already determined that the defendant is too poor to pay an accompanying fine. Because many Americans cannot relate to the jeopardy of being unable to pay a $100 fee, it is taken for granted that individual defendants who cannot pay any amount of money should somehow be able to pay this amount. This thinking not only defies logic, it also ignores the reality that for people wrapped in the iron grip of poverty, even “small” legal financial obligations (LFOs) can have devastating consequences that trickle down to families and communities. The current special assessment scheme is also defective because it overlooks the administrative burdens of overseeing LFOs that will not be collected.

With the consequences of these deficiencies in mind, this Article suggests a straightforward but overlooked reform to the special assessment scheme. It argues that a sentencing court should be permitted to, and ought to, waive the imposition of a special assessment fee if the court has already determined that a defendant is unable to pay any amount of money. At best, when a defendant’s financial situation forecloses any payment, the status quo special assessment scheme is an administrative inefficiency because of the costs of overseeing LFOs. And at worst, it may violate the defendant’s Eighth Amendment protections against excessive fines.

Keywords: Eighth Amendment; criminal legal system, indigent defendants, poverty, fines and fees, criminal sentencing

Suggested Citation

MehChu, Ndjuoh, Nickels and Dimes? Rethinking the Imposition of Special Assessment Fees on Indigent Defendants (July 19, 2021). North Carolina Law Review, Vol. 99, Seton Hall Public Law Research Paper Forthcoming, Available at SSRN:

Ndjuoh MehChu (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102
United States

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