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May 21, 2017

"Fighting Fines & Fees: Borrowing from Consumer Law to Combat Criminal Justice Debt Abuses"

The title of this post is the title of this notable paper authored by Neil Sobol and now available via SSRN.  Here is the abstract:

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.

May 21, 2017 at 04:45 PM | Permalink

Comments

I estimate a $trillion is taken from us, each year, by the criminal cult enterprise that is the lawyer profession. Almost all of it has no external validity nor any moral or legal justification. It does it using the model of the Inquisition. Our country is under the tyranny of the Inquisition 2.0. The 1.0 gotcha business model lasted 700 years. It built the splendors of the Vatican and Italian churches. The lawyer profession did not just copy the catechism as described below. It copied the business model of the Inquisition.

I have considered filing intervention claims in health care to slow the Mafia at the DOJ. I cannot get the idea out of my head of how the Inquisition 1.0 ended, and that the same will be required. The Inquisition 1.0 ended when French patriots beheaded 10,000 high church officials.

I like the child like innocence of the above paper. If Sobol thinks a criminal cult enterprise can give up a $trillion with the passage of statutes, he should never lose that childlike faith.

Posted by: David Behar | May 21, 2017 7:54:49 PM

Sadly, this is one instance where I happen to agree with David. Not so much the beheading of lawyers but the idea that local governments will give up the pool of money easily. These legal fees are the companion to civil forfeiture. They require the citizen to pay the government without any conviction, so in essence they require to a citizen to pay the government for the pleasure of being a citizen. Which is a fancy way of saying they are a tax. When we understand these fees are taxes in disguise there inherently regressive nature swings into focus. Because like civil forfeiture these taxes fall most heavily on those with the least resources to dispute them.

There is an old saw that people get the government they deserve. In our capitalistic society that largely means the government people are willing to pay for. The poor get very little justice because they can afford very little justice, being poor. So either the rich subside justice for the poor or they don't; experience teaches that for the most part they don't. Not unless someone forces them to do it.

Posted by: Daniel | May 21, 2017 8:49:57 PM

Daniel. I have proposed getting serious with civil forfeiture. Stop seizing the slum houses of grandmothers, and the cash of weary travelers because they have traces of cocaine.

Lawyer dumbasses at the really stupid DOJ: seize Goodle/Facebook/Twitter/Microsoft. Millions of crimes have been committed on their platforms, you morons. Sell the parts of these awful monopolies, and stop kidding around.

Are the lawyers not the stupidest people in our country, and the Harvard grads at the DOJ not the very stupidest of lawyers?

Everyone else knows this. Only you morons do not. I just can't stand the stupidity of this profession, and of its elite.

Posted by: David Behar | May 21, 2017 9:49:55 PM

Hey, Joe. Can you research writs of mandamus in civil forfeiture for me?

Posted by: David Behar | May 22, 2017 12:52:20 AM

Actually the problem is that the people paying these fees and fines are paying them in the wrong currency. The correct form of currency should be the following

45 caliber
357 caliber

Or the ever popular
9m

Pretty sure once they collected a few payments the little crooks would fine some new pockets to pivk!

Who knows the next target might be lawyers

Posted by: rodsmith3510 | May 22, 2017 11:13:49 AM

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