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February 28, 2022

"The New Due Process: Fairness in a Fee-Driven State"

The title of this post is the title of this article recently posted to SSRN authored by Glenn Harlan Reynolds and Penny White.  Here is its abstract:

Many parts of the criminal justice system are funded by revenue from "users" -- i.e., the accused, in the form of fines, fees, and forfeitures.  Drawing on both existing Supreme Court authority and recent Court of Appeals decisions, we argue that a violation of due process exists when all participants in the criminal justice system, from police to court clerks, to prosecutors and judges, depend on revenues from pleas and convictions in order to function.  Instead, we argue that due process demands that the criminal justice system be funded in ways that are not affected by the rate of arrest and conviction.

February 28, 2022 at 06:39 PM | Permalink


While I'm somewhat sympathetic, there's a distinction to be drawn here between cost recovery and profiteering. And there are some charges that could financially incentivize convictions vs. some that cannot. For example, the article mentions jail fees. Whether or not you think those fees are a good idea, it's not clear how a jail fee limited to cost recovery could create bias in an adjudicator as the jurisdiction doesn't financially benefit from jailing people. Same for probation fees, ignition interlock fees, or other fees that are limited to cost recovery.

Posted by: Jason | Mar 1, 2022 12:38:24 AM

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