Sentencing Law and Policy

"Debt Sentence: How Fines and Fees Hurt Working Families"

The title of this post is the title of this new report from the the Wilson Center for Science and Justice and the Fines and Fees Justice Center. Here is the report's executive summary:

Food, healthcare, and shelter are essential for basic survival.  Beyond mere survival, we all have other fundamental needs, such as employment, access to transportation, or education.  No one would choose to forgo any of these necessities, unless there was a greater danger threatening their well-being.  For millions of families across the United States, court fines and fees threaten these basic building blocks of survival and stability.

Across the United States, courts impose fines as a punishment for minor traffic infractions, municipal code violations, misdemeanors, and felonies.  State and local governments then tax people with fees, surcharges, and other costs used to fund the justice system and other government services.  The entire fee system is designed for one purpose: raising revenue for governments.

We know the impact of court fines and fees is not just limited to those families living in or close to poverty; it is felt by working families across economic, racial, and political demographic groups. Court-related debt can often be in the hundreds — if not thousands or even tens of thousands — of dollars, which makes paying it off a struggle for many.  The Federal Reserve Board found that nearly one in four adults in the United States were just one unexpected $400 bill away from severe financial hardship (U.S. Fed. Reserve, 2022).  A report by the lending industry also found that in 2022 “[t]he share of those earning less than $50,000 who live paycheck to paycheck rose to 82%” (PYMNTS.com & Lending Club, 2022).

Despite the breadth of data showing how much U.S. families are struggling financially, there has been a lack of consistent and reliable data on the impact of monetary sanctions on those same families.  This study is the first to present a comprehensive, national overview of how court-imposed fines and fees are affecting people across the country.  Using data from a nationally representative survey, we examine the impacts of court-imposed debt on peoples’ daily lives.

Our findings reveal a disturbing trend unfolding among working families impacted by fines and fees: money needed for necessities like food, housing, and healthcare is often being redirected to pay off court debt.  Advocates for fines and fees reform have collected thousands of stories of families sacrificing basic necessities for fear of being jailed and arrested on account of outstanding court debt.  But for the first time, with this survey, we have national data documenting the extent to which fines and fees are destabilizing families and jeopardizing their ability to access the building blocks that support survival, stability, and a chance at success.

Justice Gorsuch (joined by Justice Jackson) talks up Excessive Fines Clause after SCOTUS majority finds tax forfeiture is a taking

A civil case on the Supreme Court's docket that I have been watching as the Term winds down is Tyler v. Hennepin County, Minnesota, which presented these issues: (1) Whether taking and selling a home to satisfy a debt to the government, and keeping the surplus value as a windfall, violates the Fifth Amendment's takings clause; and (2) whether the forfeiture of property worth far more than needed to satisfy a debt, plus interest, penalties, and costs, is a fine within the meaning of the Eighth Amendment.  The Supreme Court this morning handed down a unanimous opinion in Tyler, and the opinion for the Court, authored by Chief Justice Roberts, concludes this way:

The Takings Clause “was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong, 364 U.S., at 49.  A taxpayer who loses her $40,000 house to the State to fulfill a $15,000 tax debt has made a far greater contribution to the public fisc than she owed.  The taxpayer must render unto Caesar what is Caesar’s, but no more.

Because we find that Tyler has plausibly alleged a taking under the Fifth Amendment, and she agrees that relief under “the Takings Clause would fully remedy [her] harm,” we need not decide whether she has also alleged an excessive fine under the Eighth Amendment. Tr. of Oral Arg. 27. The judgment of the Court of Appeals for the Eighth Circuit is reversed.

But while the Court as a whole dodged the Eighth Amendment's Excessive Fines Clause, a concurring opinion by Justice Gorsuch (joined by Justice Jackson) had lots to say on the topic.  Here are a few passages from a short concurrence:

Given its Takings Clause holding, the Court understandably declines to pass on the question whether the Eighth Circuit committed a further error when it dismissed Ms. Tyler’s claim under the Eighth Amendment’s Excessive Fines Clause. Ante, at 14.  But even a cursory review of the District Court’s excessive-fines analysis — which the Eighth Circuit adopted as “well-reasoned,” 26 F. 4th 789, 794 (2022) — reveals that it too contains mistakes future lower courts should not be quick to emulate.

First, the District Court concluded that the Minnesota tax-forfeiture scheme is not punitive because “its primary purpose” is “remedial” — aimed, in other words, at “compensat[ing] the government for lost revenues due to the nonpayment of taxes.” 505 F. Supp. 3d 879, 896 (Minn. 2020).  That primary-purpose test finds no support in our law. Because “sanctions frequently serve more than one purpose,” this Court has said that the Excessive Fines Clause applies to any statutory scheme that “serv[es] in part to punish.” Austin v. United States, 509 U.S. 602, 610 (1993) (emphasis added).  It matters not whether the scheme has a remedial purpose, even a predominantly remedial purpose.  So long as the law “cannot fairly be said solely to serve a remedial purpose,” the Excessive Fines Clause applies.  Ibid. (emphasis added; internal quotation marks omitted)....

Second, the District Court asserted that the Minnesota tax-forfeiture scheme cannot “be punitive because it actually confers a windfall on the delinquent taxpayer when the value of the property that is forfeited is less than the amount of taxes owed.” 505 F. Supp. 3d, at 896.  That observation may be factually true, but it is legally irrelevant.  Some prisoners better themselves behind bars; some addicts credit court-ordered rehabilitation with saving their lives.  But punishment remains punishment all the same....

Third, the District Court appears to have inferred that the Minnesota scheme is not “punitive” because it does not turn on the “culpability” of the individual property owner.  505 F. Supp. 3d, at 897.  But while a focus on “culpability” can sometimes make a provision “look more like punishment,” this Court has never endorsed the converse view.  Austin, 509 U.S., at 619.  Even without emphasizing culpability, this Court has said a statutory scheme may still be punitive where it serves another “goal of punishment,” such as “[d]eterrence.”  United States v. Bajakajian, 524 U.S. 321, 329 (1998).  And the District Court expressly approved the Minnesota tax-forfeiture scheme in this case in large part because “‘the ultimate possibility of loss of property serves as a deterrent to those taxpayers considering tax delinquency.’” 505 F. Supp. 3d, at 899 (emphasis added).  Economic penalties imposed to deter willful noncompliance with the law are fines by any other name.  And the Constitution has something to say about them: They cannot be excessive.

Supreme Court grants cert on due process requirements in civil asset forfeiture case

There was a lone cert grant in the US Supreme Court's order list this morning, and this Bloomberg news piece highlights why the case might be of interest to crimina justice fans.  Here is how the press account starts:

The US Supreme Court agreed to hear a case that asks whether people are owed an immediate hearing to recover property that was seized by the government in a crime they didn’t commit.

At the center of the case granted Monday are two Alabama residents whose cars were impounded when someone else was arrested while driving them. Lena Sutton lost her car after her roommate was pulled over for speeding and arrested for possessing large amounts of methamphetamine. Halima Culley lost her vehicle when her son was pulled over and arrested for illegally possessing drugs and a firearm.

The grant carries the case name Culley v. Marshall, and here is how the cert petition in this matter presents the question:

In determining whether the Due Process Clause requires a state or local government to provide a post-seizure probable cause hearing prior to a statutory judicial forfeiture proceeding and, if so, when such a hearing must take place, should district courts apply the “speedy trial” test employed in United States v. $8,850, 461 U.S. 555 (1983) and  Barker v. Wingo, 407 U.S. 514 (1972), as held by the Eleventh Circuit or the three-part due process analysis as set forth by Mathews v. Eldridge, 424 U.S. 319 (1976) as held by at least the Second, Fifth, Seventh, and Ninth Circuits .

Preparing for some criminal action as SCOTUS heads into homestretch for OT22

After a couple of (eventful) weeks off, the Supreme Court heads into its last set of oral arguments for the current Term.  There are a couple of cases being argued the next two Wedensdays that might be of interest criminal justice fans:

Counterman v. Colorado, No. 22-138, to be argued April 19:

Issue: Whether, to establish that a statement is a "true threat" unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective "reasonable person" would regard the statement as a threat of violence.

Tyler v. Hennepin County, Minnesota, No. 22-166, to be argued April 26:

Issue: (1) Whether taking and selling a home to satisfy a debt to the government, and keeping the surplus value as a windfall, violates the Fifth Amendment's takings clause; and (2) whether the forfeiture of property worth far more than needed to satisfy a debt, plus interest, penalties, and costs, is a fine within the meaning of the Eighth Amendment.

In addition, this coming week, we are due to get an orders list before arguments start on Monday and opinions from argued cases on both Tuesday and Wednesday.  Before too long we should be getting some more opinions in some more of the the criminal cases argued last fall (though I am inclined to guess we might not get Jones v. Hendrix, the case of great procedural interest, for a few more months).

"The Failed Promise of Installment Fines"

The title of this post is the title of this notable new paper authored by Beth Colgan and Jean Galbraith now available via SSRN. Here is its abstract:

In the 1970s, the Supreme Court prohibited the then-common practice of incarcerating criminal defendants because they lacked the money to immediately pay off their fines and fees.  The Court suggested that states could instead put defendants on installment payment plans.  As this Article shows, this suggestion came against a backdrop of impressive success stories about installment fines — including earlier experiments in which selected defendants had reliably paid off modest fines through carefully calibrated payment plans.  Yet as this Article also shows, installment fines practices of today differ significantly from those early experiments, as lawmakers have increased fine amounts, added on fees, surcharges, and restitution, and penalized nonpayment through additional costs and other sanctions.  This has turned installment fines into tools of long-term oppression. 

Further, the early experiments were only ever limited solutions that left behind people in the most precarious financial circumstances, widened the government’s net around only those of limited means, and raised the risk that crime policy would be driven by revenue generation aims rather than justice.  Those problems continue today.  For all too many, installment fines are unaffordable, endless, and arbitrarily administered — and applied instead of better and more equitable solutions.  We close the Article by arguing that the present-day uses of installment fines merit both constitutional challenge and policy reform.

Justice Gorsuch dissents from denial of cert in "civil" tax case involving Excessive Fines challenge

The new SCOTUS order list released this morning appears to relist again (re-relist?) the set of acquitted conduct cases that I have been following closely (some background here and here).  In addition to that notable news, the order list also including an intriguing short dissent from the denial of cert in Toth v. US, a case involving a woman who failed to disclose a foreign bank account being "assessed a civil penalty of $2.1 million — half of the balance of Ms. Toth’s account — plus another $1 million in late fees and interest."   The First Circuit turned back an Excessive Fines challenge, and Justice Gorsuch explained why he found this troublesome (with some cites removed): 

It held that the Constitution’s protection against excessive fines did not apply to Ms. Toth’s case because the IRS’s assessment against her was “not tied to any criminal sanction” and served a “remedial” purpose.

This decision is difficult to reconcile with our precedents. We have recognized that the Excessive Fines Clause “traces its venerable lineage” to Magna Carta and the English Bill of Rights. Timbs v. Indiana, 586 U. S. ___, ___–___ (2019) (slip op., at 4–5).  We have held that “[p]rotection against excessive punitive economic sanctions” is “‘fundamental’” and “‘deeply rooted in this Nation’s history and tradition.’” Id., at ___ (slip op., at 7).  And all that would mean little if the government could evade constitutional scrutiny under the Clause’s terms by the simple expedient of fixing a “civil” label on the fines it imposes and declining to pursue any related “criminal” case.  Far from permitting that kind of maneuver, this Court has warned the Constitution guards against it.  See Austin v. United States, 509 U. S. 602, 610 (1993) (“[T]he question is not, as the United States would have it, whether [a monetary penalty] is civil or criminal, but rather whether it is punishment.”)....

Nor is a statutory penalty beneath constitutional notice because it serves a “remedial” purpose. Really, the notion of “nonpunitive penalties” is “a contradiction in terms.” United States v. Bajakajian, 524 U. S. 321, 346 (1998) (Kennedy, J., dissenting).  Just take this case.  The government did not calculate Ms. Toth’s penalty with reference to any losses or expenses it had incurred.  The government imposed its penalty to punish her and, in that way, deter others.  Even supposing, however, that Ms. Toth’s penalty bore both punitive and compensatory purposes, it would still merit constitutional review.  Under our cases a fine that serves even “in part to punish” is subject to analysis under the Excessive Fines Clause.  Austin, 509 U. S., at 610 (emphasis added).

Ms. Toth and her amici identify still more reasons to worry about the First Circuit’s decision.  They say it clashes with the approach many other courts have taken in similar cases.  Pet. for Cert. 18–25 (collecting cases).  They observe that it incentivizes governments to impose exorbitant civil penalties as a means of raising revenue. Id., at 25–30.  And they contend that it is difficult to square with the original understanding of the Eighth Amendment.  Brief for Professor Beth A. Colgan as Amicus Curiae on Pet. for Cert. 4–13.  For all these reasons, taking up this case would have been well worth our time.  As things stand, one can only hope that other lower courts will not repeat its mistakes.

Fourth Circuit panel finds district court abused its discretion when denying compassionate release to elderly drug offender

I just came across a notable ruling from last week by a Fourth Circuit panel in US v. Malone, No. 21-6242 (4th Cir. Jan. 5, 2023) (available here). In this case, the circuit court panel concludes that "the district court abused its discretion by failing to properly assess the following factors which would warrant Malone’s compassionate release: his ailing health, advanced age, and relevant 18 U.S.C. § 3553(a) factors." Here is one key paragraph from the opinion (emphasis in the original):

[W]e conclude that the district court abused its discretion by failing to recognize that the relevant § 3553(a) factors clearly favor release.  Having a Category I criminal history, Malone acknowledged the seriousness of his offense in prior motions to the court and has now served over fourteen years of his sentence.  While in prison, he participated in multiple classes and was also placed in a low-level prison camp.  His new extraordinary and compelling health-related circumstances have condemned him to a life filled with limitations.  Due to these circumstances, his potential for recidivism is low to none and he does not pose a threat to others or the community at large.  To affirm the district court’s denial would not only be a great disservice to Malone, but to any defendant with failing health seeking autonomy in their twilight.  There is a reason this is called compassionate release, after all.

New Justice Department memo calls for "Prioritizing Restitution for Victims"

As detailed in this Washington Post piece, headlined "Prosecutors urged to more aggressively seize funds owed to crime victims," there is a notable new memo from the US Deputy Attorney General Lisa Monaco.  Here are details and context from the press piece:

A new Justice Department memo issued Monday seeks to address criticism that the agency has shielded inmates’ money meant to go to the victims of their crimes, urging prosecutors to more aggressively pursue court cases to seize those funds....

The Washington Post has previously reported that a number of high-profile inmates, including former USA Gymnastics doctor Larry Nassar, singer R. Kelly and Boston Marathon bomber Dzhokhar Tsarnaev have kept and spent thousands of dollars with their prison accounts, while paying only small amounts of court-ordered restitution to their victims. In each of those cases, prosecutors went to court to force the Bureau of Prisons to turn over the money — a process that has been criticized as unfair to victims and counterproductive since it requires one arm of the Justice Department to go to court against another arm of the same department.

Deputy Attorney General Lisa Monaco wrote the memo Monday to “encourage prosecutors to file restitution pleadings or to include restitution calculations in sentencing” documents. “Prosecutors should request that sentencing courts order that restitution be due and payable immediately, but if courts order otherwise, prosecutors should propose that payment plans be set at ‘the shortest time in which full payment can reasonably be made,’” the memo says.

Jason Wojdylo, who spent years at the U.S. Marshals trying to get the Bureau of Prisons to change its policy on inmates’ accounts and has since retired from government, called Monaco’s new memo “maddening” because “it does nothing to address the problem.” For years, Wojdylo said, federal prosecutors “have been doing everything they can to collect court-imposed debt inmates owe to victims,” and without any help from the Bureau of Prisons. Wojdylo said that’s apparently because the inmates often use that money to buy things from the prison commissary system, and that system ultimately pays for tens of millions of dollars in prison worker salaries every year.

In response to Wojdylo’s criticism, a Justice Department official said: “Ensuring victims can recover restitution from inmate trust accounts has been a priority for the Deputy Attorney General and the entire Justice Department. This directive to prosecutors is just one piece of an ongoing effort across the Department to accomplish this goal. We look forward to continuing progress in the near term.”

Under the current system, there are no limits on how much money inmates can keep in their prison accounts, and last year The Post reported that roughly 20 inmates kept at least $100,000 apiece in their prison accounts. The agency only requires inmates to pay a minimum of about $9 a month toward whatever restitution they owe, though officials say they encourage inmates to pay more.

The two-page memo from the DAG is dated December 2, 2022 and has the subject line of "Prioritizing Restitution for Victims." Here are the first two paragraphs of the six-paragraph memo:

On October 1, 2022, the Attorney General published revised Guidelines for Victim and Witness Assistance.  Those Guidelines make clear that the Department is responsible not only for ensuring that those who commit crimes are prosecuted vigorously but also for achieving justice for victims.  Because crimes can have a devastating financial effect on victims, the Department is responsible for ensuring that "victims receive full and timely restitution." Guidelines art. V, § H.  That obligation extends throughout the life ofa case, including after judgment is entered.

Under the Crime Victims' Rights Act, a crime victim has the right to "full and timely restitution as provided by law." 18 U.S.C. § 377l(a)(6).  The Department's prosecutors should therefore be proactive in enforcing court-ordered restitution obligations, including where funds are held in accounts maintained by the Federal Bureau ofPrisons (BOP) in trust during an inmate's period of incarceration.  Last year, I instructed BOP to strengthen monitoring and reporting related to these accounts, consistent with applicable law.  Pursuant to that directive, BOP has since enhanced guidance on monitoring inmate accounts; improved coordination with law enforcement partners, including the U.S. Marshals Service (USMS), on investigating and taking appropriate action against suspicious activity; and identified funds that should be encumbered to meet financial obligations.  BOP is also strengthening the Inmate Financial Responsibility Program to apply additional funds towards restitution and has partnered with other Department ofJustice components and federal agencies to ensure that funds are used to help meet those obligations.

Extended discussion of the messy uncertainty of Excessive Fines jurisprudence from Ohio Supreme Court

Earlier this month, as well detailed in this lengthy courthouse news piece headlined "Court-Ordered Truck Forfeiture for Third Drunk-Driving Offense Found Constitutional," a split Ohio Supreme Court upheld the forfeiture of a 2014 Chevrolet Silverado for a repeat OVI offense. Here is how the ruling in State v. O'Malley, No. 2022-Ohio-3207 (Ohio Sept 25, 2022) (available here) gets started:

In this case, we are asked two separate questions about R.C. 4511.19(G)(1)(c)(v) and Ohio’s criminal-forfeiture scheme for vehicles owned and used by repeat drunk drivers.  First, we are asked whether that scheme violates the Equal Protection Clauses in the state and federal Constitutions by treating owners and nonowners differently.  Next, we are asked, more specifically, whether the forfeiture of appellant James O’Malley’s 2014 Chevrolet Silverado constituted an excessive fine in violation of the Eighth Amendment to the United States Constitution. We find that there was no equal-protection violation and that, as applied to O’Malley, the vehicle forfeiture mandated by R.C. 4511.19(G)(1)(c)(v) did not violate the Excessive Fines Clause of the Eighth Amendment because it was not grossly disproportional to the gravity of his offense.  Accordingly, we affirm the judgment of the Ninth District Court of Appeals affirming the trial court’s forfeiture order.

The equal protection discussion in O'Malley is relatively brief, but the Eighth Amendment analysis is extended and should be of interest to those still trying to figure out how excessive punishment are to be constitutionally assessed. There are many passages from the majority opinion that are notable, but this one particularly struck me as jurisprudentially interesting:

The application of these multifactor proportionality tests generally varies depending on whether the forfeiture is in personam or in rem and depending on whether the property to be forfeited is real property, personal property, or something else. The problem is that there does not appear to be any consensus.  Nevertheless, O’Malley and his amicus curiae ask us to do what other federal and state courts have done: set forth a multifactor test that would include in the proportionality analysis considerations of the defendant’s financial ability to pay and the extent to which the forfeiture would harm the defendant’s livelihood.  While we appreciate the allure of a seemingly airtight checklist that ideally would — but in practice may not — address all future contingencies, we do not believe — for both practical and principled reasons — that it is necessary or appropriate for us to establish the multifactor test sought in this case.  Instead, we rely on our decision in Hill and the United States Supreme Court’s decision in Bajakajian to evaluate the forfeiture imposed in this case.

The dissenting opinion criticizes this approach by claiming that we provide no additional guidance and merely engage in error correction.  The dissent is mistaken.  Rather, in this case, we have revisited an issue that is of great public interest, reviewed how the issue has developed over the past 30 years since we decided Hill, and have simply come to the same conclusion that we reached in Hill — a bright-line test analyzing an Eighth Amendment excessiveness challenge is not appropriate.  We must allow trial courts flexibility so that they may consider the situation before them and make a fully informed and reasoned decision about whether a forfeiture is unconstitutionally excessive.  We need not bind trial courts’ hands in these already difficult forfeiture cases.

Should pardon enable pharmacist convicted of federal fraud to claw back restitution already paid?

A helpful reader made sure I did not miss this interesting news story from Georgia regarding the uncertain aftermath of a presidential pardon.  The piece is headlined, "Trump pardoned him; now Ga. man sues state, insurer for half-million," and here are in the details:

In his final days in the White House, then-President Donald Trump pardoned dozens of people, including former Augusta pharmacist John Duncan Fordham who was convicted of defrauding the state of Georgia and ordered to pay $1 million in restitution.

Fordham spent four years in prison after his 2005 health care fraud conviction, and his assets were seized and liquidated to help make whole the state and a private insurance company he had defrauded. At the time of his January 2021 pardon, Fordham had made good on $531,000 in restitution payments.

And while the pardon erased the nearly half million he and company still owed, that wasn’t good enough for Fordham. On Thursday, he took the unusual step of suing the state and the insurance company to pay him the hundreds of thousands he had already paid in restitution, claiming that Trump’s pardon had entitled him to recover the funds — plus interest.

“I’m not sure that I’ve heard of a case of reimbursement,” said Michigan State University law professor Brian Kalt, an expert on presidential pardons.

Fordham was convicted of taking part in a fraud scheme in which former state Rep. Robin Williams, R-Augusta, steered a lucrative contract with the East Georgia Community Mental Health Center to Fordham, in exchange for generous kick backs to the former lawmaker. Williams was also convicted and sentenced to federal prison....

In addition to the nearly $500,000 that were seized following his conviction, Fordham had continued to make monthly payments totaling $46,000 until Trump’s pardon, the complaint says. He paid roughly $259,000 to the Georgia Department of Administrative Services, an agency that provides financial services to state and local government entities and a defendant in Fordham’s suit. Fordham paid Great American Insurance Company, the other defendant in his suit, $272,000 in restitution, records show.

Kalt said that the presidential pardon cleared Fordham of responsibility to continue to pay restitution, but it seems unlikely that a federal court will agree that the pardon entitles him to claw back payments he had already made. “It’s unclear, but it seems doubtful to me that he’ll be able to get the money back,” Kalt said.

I understand Professor Kalt's first instinct that this pardoned individual should not be able to get back restitution already paid; after all, this individual cannot "get back" the four years he already served in prison.  But, of course, money can be returned whereas time cannot.  And, if one concludes that the pardon here serves to wipe out the remaining restitution owed that had not yet been paid, I am not sure why logic does not suggest that the pardon also serves to wipe out the already paid restitution.

Notably, Prez Trump's grant of clemency provided for a "full and unconditional pardon" for Fordham's conviction and it mentioned the entire full restitution amount that was part of the sentence imposed.  I find myself somewhat drawn to the notion that the law should aspire to give as much effect to a clemency grant as possible, including enabling Fordham to claw back even restitution already paid.  But perhaps we ought to view clemency as a classic example of equity over law, and so perhaps we best achieve equity by wiping out only future restitution still owed without returning restitution already paid.

Should workers who are incarcerated at least be paid minimum wage?

The question in the title of this post is prompted by this new Stateline piece headlined "Advocates Seek to Make Prison Work Voluntary," and also by the recent ALCU report, Captive Labor: Exploitation of Incarcerated Workers.  Here are excerpts from the Stateline piece:

Prisoners making license plates is a popular stereotype, but most of the nation’s 800,000 incarcerated workers hold jobs more similar to those on the outside: They cook and serve food, mop floors, mow lawns and cut hair.

Unlike other workers, though, the incarcerated have little say, if any, in what jobs they do. They face punishment if they refuse to work and are paid pennies per hour — if that.

The nation’s racial reckoning of the past few years has prompted a reevaluation of penal labor as a legacy of slavery, spurring people to question whether incarcerated people should be required to work in 2022. Activists are pressing for an end to work requirements or, if they continue, for higher wages....

In March, Colorado enacted a law that will pay the state minimum wage of $12.56 an hour to inmates who are within a year of their release date and work for private companies through the state-run Take TWO (for Transitional Work Opportunity) program.   “This is actually a very conservative approach,” Colorado state Rep. Matt Soper, the Republican sponsor of the bipartisan measure, said in an interview. “We need workers, and they need to gain skills before release.”

To pass the bill, though, Soper first had to explain why paying prisoners the minimum wage was a good idea.  “Some victims and victims’ advocacy groups opposed the idea at first, and then they wanted every dollar to come back in restitution,” he said. “But that’s not a good system, because we want [the former offenders] to have savings as seed money to restart their lives. My goal is to disrupt the current model of recidivism.”

But no Colorado inmates are participating right now.  Take TWO, which began in 2019 and reportedly had about 100 participants in March, is “on a pause while we review and update logistics and criteria and address some of our immediate staffing shortages,” the Colorado Department of Corrections said in an email.

Prison minimum wage bills are pending in New York and Illinois.  Since 2019, bills have failed in Arizona, Maryland, Mississippi, Nevada, Texas and Virginia, according to the ACLU....

Proponents of making prison work more remunerative and meaningful also argue it’s not productive for society to keep incarcerated workers in dead-end jobs that fail to prepare them for employment outside the prison walls or allow them to accumulate some savings for when they are released.  Studies show poverty and unemployment lead to recidivism.

Some crime victims groups also support raising prison wages, said Lenore Anderson, founder and president of the Alliance for Safety and Justice, an Oakland, California-based group that works to end mass incarceration, reduce crime and support survivors of violent crime.  The public assumes that people hurt by crime and violence would want the worst possible prison experience for those who committed the crimes, Anderson said.  “But that’s not what we find. People want them to succeed,” she said. “How do we know after someone has served time they’re prepared for living in society? That’s what rehabilitation, work and education programs do. Wages are part of that. It would be very consistent with smart rehabilitation to align prison wages with wages on the outside.”

The average wage nationwide for incarcerated workers who maintain prison facilities ranges from 13 cents to 52 cents an hour, according to the ACLU and Global Human Rights Clinic.  In seven Southern states — Alabama, Arkansas, Florida, Georgia, Mississippi, South Carolina and Texas — almost all work by prisoners goes unpaid. “It’s not hard to imagine that’s a vestige of slavery,” said Jennifer Turner, the ACLU’s principal human rights researcher and primary author of the report, “Captive Labor: Exploitation of Incarcerated Workers.”

Prior recent related post:

• Notable new ACLU report on prison labor in the United States 

Noting the punishing reality of persistent prison debt

With a certain type of debt (and forgiveness) now a hot topic, this new AP article provides a window into another type of debt that persistently punishes.  The piece is headlined, "At $249 per day, prison stays leave ex-inmates deep in debt," and here are excerpts:

Two decades after her release from prison, Teresa Beatty feels she is still being punished.  When her mother died two years ago, the state of Connecticut put a lien on the Stamford home she and her siblings inherited.  It said she owed $83,762 to cover the cost of her 2 1/2 year imprisonment for drug crimes.

Now, she’s afraid she’ll have to sell her home of 51 years, where she lives with two adult children, a grandchild and her disabled brother.  “I’m about to be homeless,” said Beatty, 58, who in March became the lead plaintiff in a lawsuit challenging the state law that charges prisoners $249 a day for the cost of their incarceration.  “I just don’t think it’s right, because I feel I already paid my debt to society.  I just don’t think it’s fair for me to be paying twice.”

All but two states have so-called “pay-to-stay” laws that make prisoners pay for their time behind bars, though not every state actually pursues people for the money.  Supporters say the collections are a legitimate way for states to recoup millions of taxpayer dollars spent on prisons and jails.  Critics say it’s an unfair second penalty that hinders rehabilitation by putting former inmates in debt for life.

Efforts have been underway in some places to scale back or eliminate such policies.  Two states — Illinois and New Hampshire — have repealed their laws since 2019.  Connecticut also overhauled its statute this year, keeping it in place only for the most serious crimes, such as murder, and exempting prisoners from having to pay the first $50,000 of their incarceration costs....

Beatty acknowledges she was guilty of selling and possessing drugs, but said nobody told her when she went to jail that every day behind bars would cost her more than a night at a fine hotel.  “It just drags you back to despair,” said Beatty, who has had other brushes with the law over drug possession since her release from jail, but has also become a certified nursing assistant. “That’s where I feel like I’m at. I feel like no hope. Where do I go? All of this work and it feels like I’ve done it in vain.”

Pay-to-stay laws were put into place in many areas during the tough-on-crime era of the 1980s and ’90s, said Brittany Friedman, an assistant professor of sociology at University of Southern California who is leading a study of the practice. As prison populations ballooned, Friedman said, policymakers questioned how to pay for incarceration costs. “So, instead of raising taxes, the solution was to shift the cost burden from the state and the taxpayers onto the incarcerated.”

Laws vary from state to state.  Many, like Connecticut, only go after inmates for the cost of incarceration if they come into money after leaving prison.  A few, such as North Carolina, have laws on the books but almost never use them, Friedman said.

"Reimagining Restitution: New Approaches To Support Youth And Communities"

The title of this post is the title of this new report from the Juvenile Law Center. Here is part of the report's executive summary:

Across the country, juvenile courts impose restitution orders on youth too young to hold a job, still in full-time school, and often living in families already struggling to get by. This process doesn’t work for anyone.  Because children can’t make restitution payments, people owed restitution often don’t get paid or face long delays before they are compensated. Meanwhile, restitution is linked to higher recidivism rates for children, family stress, and deeper justice system involvement. In short, no one wins.

Restitution laws also heighten racial and economic disparities in the juvenile justice system. Most young people who make mistakes, including those who damage property, don’t end up in the justice system at all. Instead, schools, families, and communities solve the problem in ways that work for everyone involved. Because of structural racism, discrimination, economic disparities, and persistent bias, however, certain groups of youth are disproportionately pulled into the justice system for the same types of mistakes. The risk of system involvement is particularly high for Black, Latinx, Indigenous, and other youth of color, young people in poverty, youth with disabilities, and LGBTQIA+ youth.1 As described in this publication, young people then face a rigid and unforgiving set of restitution laws, including severe consequences for nonpayment.

This report provides an overview of the legal framework for restitution in juvenile court, examines the impact on youth, families, and people owed restitution, and highlights key recommendations as jurisdictions across the country begin to reimagine restitution.

"Revenue Over Public Safety: How Perverse Financial Incentives Warp the Criminal Justice System"

The title of this post is the title of this big new report from the Brennan Center for Justice.  Here is how the report's introduction gets started:

Bipartisan efforts to change the criminal justice system have gained momentum around the country in recent years. Nearly all 50 states, many counties, and the federal government have sought to reduce imprisonment and mitigate its harms. A remarkable wave of legislation has shortened custodial sentences and widened eligibility for sentences served in the community.  States and localities have also invested in rehabilitation and reentry services.

Yet the impact of these efforts has been relatively modest.  While the nation’s imprisoned population has declined since peaking in 2009, incarceration levels remain extraordinarily high.  Nearly 1.2 million people are serving sentences in state and federal prisons, and 10.3 million are admitted to local jails every year.  Mass incarceration — a term now entrenched in the popular lexicon — is proving remarkably resistant to well-intentioned reforms.

One explanation can be found in the infrastructure erected to support the United States’ reliance on imprisonment as the country’s primary crime control policy.  Mass incarceration did not result simply from increased policing and harsher criminal penalties.  Economic and financial incentives established by local, state, and federal agencies also played a role.  Police, prosecutors, and corrections agencies competed for these benefits by escalating their enforcement practices.  Law enforcement came to depend on these funding sources, particularly as declining tax receipts and intergovernmental transfers left them grasping to fill budget holes.  These incentives are a persistent structural driver of punitive enforcement and mass incarceration.

The perverse financial incentives of direct federal funding programs for incarceration are relatively easy to identify.  So too are laws passed by Congress that encourage more punitive policies.  This report focuses instead on an interlocking set of economic incentives that are more deeply entrenched and difficult to unravel.  These incentive structures raise the risk that officials will chase revenue rather than pursue public safety and justice, giving law enforcement agencies a stake in perpetuating mass incarceration.  This report catalogs some of the most corrosive practices.

Split Iowa Supreme Court finds Sixth Amendment jury trial rights apply to (unique?) state law restitution provision

A helpful reader made sure I saw the interesting ruling today from the Iowa Supreme Court in Iowa v. Davison, No. 20–0950 (Iowa Apr. 15, 2022) (available here).  The start of the majority opinion should highlight why all Apprendi fans will want to check out this notable new decision:

A jury found the defendant guilty of assault causing serious injury and conspiracy to commit murder in connection with a shooting death.  The district court later awarded restitution against the defendant under Iowa Code section 910.3B (2017).  That law mandates an award of at least $150,000 restitution when “the offender is convicted of a felony in which the act or acts committed by the offender caused the death of another person.” Id. § 910.3B(1).  The defendant now argues that the restitution was statutorily and constitutionally impermissible because the offenses of which he was convicted did not include, as an element, causing the death of another person.

We conclude that Iowa Code section 910.3B does not require a jury finding that the defendant caused the death of another person.  But the Sixth Amendment to the United States Constitution is a different matter.  The United States Supreme Court has repeatedly held that the Sixth Amendment requires facts that increase the defendant’s minimum or maximum punishment to be determined by a jury.  Because the $150,000 restitution is punitive in part, awards of such restitution must be based on jury findings.  No jury found that the defendant caused the death of the victim of the shooting.  Therefore, we reverse the award of restitution in this case and remand for further proceedings.

Here is part of the substantive discussion from the majority in Davison:

Courts have generally declined to apply Apprendi to restitution because restitution is usually compensatory and indeterminate. At first glance, Davison’s argument faces a steep climb. Courts considering the matter have ruled overwhelmingly that Apprendi and Southern Union do not apply to criminal restitution. See, e.g., State v. Leon, 381 P.3d 286, 289 (Ariz. Ct. App. 2016) (“Leon acknowledges that no court has applied Apprendi to restitution awards.”); State v. Arnett, 496 P.3d 928, 933 (Kan. 2021) (“[A]t least 11 of 13 federal United States Circuit Courts of Appeal have refused to extend Apprendi and its progeny to orders of restitution, not to mention the many state courts which have followed suit.”)...

Restitution under Iowa Code section 910.3B is punitive and determinate. By contrast, Iowa Code section 910.3B establishes a mandatory minimum of $150,000 awardable only if the defendant’s felonious acts caused the death of another person. It may be a low number for the nonmonetary loss attributable to a death of a human being, but it is a floor—and it is awarded only if certain facts are found to exist.  Under normal circumstances, a victim of crime in Iowa is limited to recovery of “pecuniary damages,” which exclude “damages for pain, suffering, mental anguish, and loss of consortium.” Iowa Code §§ 910.1(6), .2(1)(a).  Only when the defendant is convicted of a felony in which their acts caused the death of another person may the minimum amount of $150,000 be recovered in addition.  See id. § 910.3B(1).

Like other forms of restitution, the restitution authorized by Iowa Code section 910.3B provides compensation. “It serves a remedial purpose in compensating the victim’s estate.” Klawonn, 609 N.W.2d at 520.

But section 910.3B restitution is also punitive. In our 2000 decision, Izzolena, we detected “several punitive elements” in the statute. 609 N.W.2d at 548.  Restitution under section 910.3B “is awarded in addition to separate restitution for pecuniary damages.” Id. Also, the statute “establishes a minimum threshold amount of $150,000 for all cases, with no required proof of evidence to support damages excluded from the definition of pecuniary damages.” Id. at 548–49. For this reason, we found that the $150,000 restitution was subject to the Excessive Fines Clause of the Eighth Amendment to the United States Constitution and article I, section 17 of the Iowa Constitution. Id. at 549.

One concurring opinion frames the ruling in a notable way that seems worth highlighting (and which might entail that the Supreme Court would be disinclined to take this case up if there were a future cert petition):

The opinion concurring in part and dissenting in part argues that Apprendi should not be extended to restitution awards, but this merely begs the question. It is not disputed that courts almost uniformly have held that Apprendi does not apply to restitution awards....  And the court’s opinion in this case says nothing different. The question in this case is not, as the dissenting opinion frames it, whether Apprendi should be extended to restitution awards.  Instead, the question is whether section 910.3B is merely a restitution award or whether it also amounts to criminal punishment.  The dissent assumes the former, but our precedents dictate the latter.

And here is the start of the partial dissent:

I join the court’s opinion except for part III.B. I respectfully dissent from the court’s holding extending Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny to victim restitution awards.  Our court is the first appellate court in the nation to do so.  Only two justices of the United States Supreme Court have concluded that Apprendi should be applied to require a jury to find all the facts needed to justify a restitution order.  Hester v. United States, 139 S. Ct. 509, 509–11 (2019) (Gorsuch, J., joined by Sotomayor, J., dissenting from the denial of certiorari).  Seven justices declined to take the bait. See id. at 509 (mem.).  Every federal circuit court of appeals to reach the issue has refused to extend Apprendi to victim restitution awards.  So too has every state appellate court to reach the issue.  I would follow the wisdom of that crowd.

It is not a given that Iowa would seek SCOTUS review of this ruling, and the distinctiveness of Iowa law here might make the SCOTUS Justices disinclined to take up this case even if Iowa does seek cert. That said, it seems worth noting that any forthcoming cert petition on this issue could possible engage some of the Justices who were not on Court back in 2019 when cert was denied in the Hester case.  Back then, Justice Ginsburg and Breyer were apparently disinclined to take up this issue.  But I suspect the new Justice Jackson might be much more interested in expanding Apprendi rights than her former boss has been.  And, as I suggested in this post about Hester, if Justice Barrett is really the originalist that she claims to be, she too might be inclined to join Justice Gorsuch's call to consider this important Sixth Amendment procedural matter.

Though there is much to say about restitution and procedural rights in general (e.g., there is not discussion of burdens of proof or other due process issues in Davison), this cases has me inclined to talk up the broader question of whether the "new" Supreme Court might be somewhat more eager consider and question a lot of pro-state/pro-prosecution doctrines that seem inconsistent with the text and original public meaning of the Bill of Rights.  The Apprendi line of cases helped me to understand that lots of established sentencing doctrines and precedents ought to make real textualists and originalists blush.  If lots of precedents are going to start to be reexamined on textualist and originalist grounds, those ought also to include an array of (mostly pro-state/pro-prosecution) criminal law and procedure precedents.

New Federal Sentencing Reporter double issue explores "Financial Sanctions in Sentencing and Corrections"

I am very pleased to now be able to spotlight the newest Federal Sentencing Reporter issue, which is actually a special double issue devoted to the topic "Financial Sanctions in Sentencing and Corrections: Critical Issues, Innovations, and Opportunities." This amazing issue has nearly two dozen article authored by more than three dozen leading academics and researchers. 

Professors Jordan Hyatt and Nathan Link deserve worlds of credit for putting this amazing issue together, and their "Editors’ Observations"  which introduces the issue is titled "The Cost of Financial Sanctions in Sentencing and Corrections: Avenues for Research, Policy, and Practice." Here is its abstract:  

Financial and monetary obligations, a class of sanctions that includes fines, restitution, and a range of fees, are increasingly recognized as playing a significant role in the operation of the justice system, the lives of the people against whom they are levied, and their communities.  While some financial sanctions play a role in the tailoring of a punishment to the particular individual and the offenses they have been convicted of, others lack this grounding in ideology and serve a more pragmatic- and potentially revenue-driven-goal.  These observations reflect on the current state of research and policy regarding financial sanctions and seek to identify meaningful gaps in the current knowledge base as a foundation for future inquiry.

I highly recommend the full double issue.

"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.

"The High Cost of a Fresh Start: A State-By-State Analysis Of Court Debt As A Bar To Record Clearing"

The title of this post is the title of this new report produced by the National Consumer Law Center and the Collateral Consequences Resource Center.  The report examined how court debt — such as criminal fines, fees, costs, and restitution — serves as impediment to record clearing.  Here is the start of the report's executive summary:

For the nearly one-third of adults in the U.S. with a record of arrest or conviction, their record is not simply part of their past but a continuing condition that impacts nearly every aspect of their life.  Their record makes it hard to get a job and support a family, secure a place to live, contribute to the community, and participate fully in civic affairs.

In recent years, most states have passed laws aimed at restoring economic opportunity, personal freedoms, and human dignity to millions of these individuals by providing a path to clear their record.  But for too many, this relief remains out of reach because of monetary barriers, including not only the cost of applying for record clearing but also the requirement in many jurisdictions that applicants satisfy debt incurred as part of the underlying criminal case before they can have their record cleared.  This can be a high bar: the total amount of fines and fees can run to thousands of dollars for even minor infractions and can be considerably higher for felonies.

People prevented from clearing their record because they cannot afford to pay are usually those most in need of relief.  And, perversely, because a record significantly impairs economic opportunity, having an open record makes it harder to pay off fines and fees and therefore harder to qualify for record clearing.  This burden falls especially heavily on Black and Brown communities, which are more likely to have high concentrations of both criminal records and poverty because of structural racism in criminal law enforcement and in the economy.  Ability-to-pay tests and similar waiver approaches to reduce or eliminate monetary barriers to record clearing have been shown to be poor safeguards in many contexts.

This report explores the extent to which restricting access to record clearing based on outstanding criminal fines, fees, costs, and restitution — collectively known as “court debt” — may prevent poor and low-income people from getting a second chance.  After surveying research on the importance of record clearing and the mushrooming financial burdens imposed on criminal defendants, it analyzes the extent to which outstanding court debt is a barrier to record clearing under the laws of each of the 50 states, the District of Columbia, and the federal system.  Our study focuses in particular on generally applicable statutory authorities for clearing adult criminal convictions; it excludes record-clearing authorities available for other categories of records (e.g., non-conviction records) or for specific categories of individuals (e.g., victims of human trafficking).

Consumer Financial Protection Bureau reports on "Criminal Justice Financial Ecosystem"

This official press release, fully titled "CFPB Report Shows Criminal Justice Financial Ecosystem Exploits Families at Every Stage: Report Finds Products and Services Rife with Burdensome Fees and Lack of Choice," summarizes a notable new publication from the government agency tasked with safeguarding consumer financial products.  Here are excerpts from the press release, which includes a link to the CFPB's new report:

The Consumer Financial Protection Bureau (CFPB) today published a review of the financial issues facing people and families who come in contact with the criminal justice system. The report, “Justice-Involved Individuals and the Consumer Financial Marketplace,”  describes an ecosystem rife with burdensome fees and lack of choice, and where families are increasingly being forced to shoulder the costs. It walks through the financial challenges families encounter at every stage of the criminal justice process, and the ways in which providers — often for-profit private companies — are leveraging a lack of consumer choice and their own market dominance to impose hefty fees at families’ expense.

“Many incarcerated individuals and their families pay exorbitant fees for basic financial services,” said CFPB Director Rohit Chopra. “Today’s report describes how private companies undermine the ability for individuals to successfully transition from incarceration.”

Contact with the criminal justice system is extremely common in the United States. In 2019, 2.1 million adults in America were in jail or prison, another 4.4 million were under community supervision (such as probation), and 1 in 3 adults — or 77 million Americans — had a criminal record.  Those figures do not reflect the family members and friends who often provide financial support to people who have been arrested, incarcerated, or released from jail or prison, and who are also affected by shoddy financial products and services entwined in the criminal justice system. The burdens of the criminal justice system — and its financial impacts — fall most heavily on people of color, and women and people with lower incomes of all races and ethnicities.  Surveys have repeatedly found women, and specifically Black women, disproportionately shoulder the costs of staying in touch with loved ones in prison and paying court-related debt for family members, sometimes spending up to a third of their income on such costs and even forgoing basic necessities for themselves.

Today’s report examines the financial burdens that can occur from arrest to incarceration to reentry.  It shows that as soon as families come into contact with the criminal justice system, they are confronted with numerous financial challenges, and that for-profit companies are embedded throughout.  Specifically, the report raises issues about:

• Burdensome fees: Many local, state, and federal governments impose criminal justice debt on the people who interact with it in the form of fines, fees, and restitution.  The consequences of failing to pay fines and fees can be severe, forcing people to choose between making payments they may struggle to afford and risking arrest, prosecution, detention, or reincarceration.  States are also increasingly using third-party debt collectors to collect criminal justice debt.  These debt collectors can tack on additional fines and fees that, if not paid, can result in incarceration.
• Lack of consumer choice: For incarcerated people and their families, the choice of financial service providers is limited throughout the criminal justice system. In a normal functioning market, products compete on price and quality, but all too often, government contracts in the criminal justice system mean just one choice for consumers....
• Shifting financial burdens: Increasingly, governments are shifting the cost of incarceration to people who are incarcerated and their families, forcing individuals to pay for charges related to court operations, a court-appointed public defender, drug testing, prison library use, and probation supervision. People are also charged “pay-to-stay” fees for expenses related to their custody and care, like room and board, or medical copayments. When services are outsourced to private companies, the prices set by those companies are often wildly inflated over typical market costs. 

Recent Prison Policy Initiative briefings spotlight how money matters, a lot, even in prison

I have been behind on highlighting some of the great briefings created or noted over the last month by Prison Policy Initiative.  A notable theme in all these recent reports is how economic realities and disparities do not get locked away even in with prison experience.  I recommend all this research in full:

"For the poorest people in prison, it’s a struggle to access even basic necessities: Our survey of all 50 states and the BOP reveals that prisons make it hard for people to qualify as indigent—and even those who do qualify receive limited resources."

"Show me the money: Tracking the companies that have a lock on sending funds to incarcerated people: We looked at all fifty state departments of corrections to figure out which companies hold the contracts to provide money-transfer services and what the fees are to use these services."

"The CFPB’s enforcement order against prison profiteer JPay, explained: The company was fined $6 million for exploiting people leaving prison."

"Blood from a stone: How New York prisons force people to pay for their own incarceration: A study by members of the New York University Prison Education Program Research Collective gives important first-hand accounts of the damage done when prisons shift financial costs to incarcerated people."

"Speeding While Black: Black Motorists Face More-Serious Charges for Excessive Speeding than White Motorists Do"

The title of this post is the title of this short new research brief from RAND, which presents these key findings: 

In 25 U.S. states, motorists accused of excessive speeding can face either a criminal misdemeanor or a traffic infraction, and the charge is at the discretion of law enforcement officers and the courts.  Using data on speeding violations in 18 Virginia counties over a nine-year period, researchers found large racial disparities in who was convicted of a misdemeanor.

Black motorists cited for speeding were almost twice as likely as White motorists to be convicted of a misdemeanor when their speed was in the range that qualified for the more serious charge.

Whom Officers Charged Explained 55% of the Disparity: Among cited motorists speeding at an excessive level, Black motorists were more likely than White motorists to be charged with a misdemeanor instead of an infraction....

Whom Courts Convicted Explained 45% of the Disparity: Among motorists charged with a misdemeanor by law enforcement, Black motorists were more likely than White motorists to be convicted of a misdemeanor by the court.

The full 73-page RAND research report on which this brief is based, titled "Racial Disparities in Misdemeanor Speeding Convictions," is available at this link. Here is part of its initial summary:

Overall Racial Disparity

Among motorists cited for speeding in a range that qualified for a misdemeanor, Black motorists were almost twice as likely as White motorists to be convicted of a misdemeanor. White motorists were convicted of a misdemeanor 19 percent of the time, and Black motorists were convicted 36 percent of the time. 

Significant racial disparities were present at both the law enforcement and the court stages.  We found that 55 percent of the overall racial disparity in conviction rates could be explained by what happened at the law enforcement stage (i.e., by whom law enforcement charged with a misdemeanor), and the remaining 45 percent of the disparity was explained by what happened at the court stage (i.e., by whom the court convicted of a misdemeanor).

Racial Disparities at the Law Enforcement Stage

The county in which a motorist was cited explained almost half of the racial disparity in whom law enforcement charged with a misdemeanor.  Further analyses indicated that location explained such a substantial proportion of the overall disparity at this stage because law enforcement officers offered fewer charge discounts overall in the counties in which Black motorists made up a larger percentage of cited motorists.  We were not able to determine whether there was a race-neutral reason for why enforcement was stricter in these counties.

Almost half of the racial disparity in whom law enforcement charged with a misdemeanor was unexplained by any of the case characteristics that we could control for.  This remaining racial disparity might reflect either disparate treatment by law enforcement officers or underlying racial differences in omitted variables.

Racial Disparities at the Court Stage

About four-fifths of the racial disparity in whom the court convicted of a misdemeanor could be explained by observable case characteristics. In our study, one of the primary reasons that racial disparities occurred at the court stage was because Black motorists were significantly less likely than White motorists to attend the required court appearance to adjudicate a misdemeanor charge.  Although there are several potential policy options to address this — including text message reminders or the adjudication of cases through online platforms — the optimal option will depend on first understanding why this racial difference in court appearance rates occurs.  Another key reason that Black motorists were more likely to be convicted of a misdemeanor at the court stage was that they were less likely to have a lawyer present at their court appearance.  Having an attorney present significantly lowered the likelihood that a motorist was convicted of a misdemeanor, but in Virginia, attorneys are not provided by the court for these violations and must be retained at the motorist’s expense.

"Financial Health and Criminal Justice: The Stories of Justice-Involved Individuals and Their Families"

The title of this post is the title of this notable new report from the Financial Health Network. Here is how its introduction gets started:

The United States has the highest prison and jail population, and the highest incarceration rate, in the world.  In 2020, approximately 2.3 million Americans were incarcerated, and, every year, over 10 million people are arrested or charged with crimes.  While these numbers are staggering in their size, they are made up of individuals — each with a unique and complicated human story, each with a family or social network impacted by their involvement in the criminal justice system.  The consequences of involvement with the U.S. criminal justice system run deep and wide — socially, physically, psychologically, and financially — often lasting well beyond release, and usually impacting more than just the individual arrested or incarcerated.  In addition, the criminal justice system disproportionately impacts people from low-income communities and communities of color.

The Financial Health Network presents a look into some of these lives, with particular focus on how their financial health affects their ability to navigate the criminal justice system, and how that system affects their financial health once they’re able to re-enter society.  In partnership with the University of Southern California’s (USC) Center for Economic and Social Research, we collected stories directly from 36 individuals impacted by this system, and learned how navigating the criminal justice system impacts the financial health of justice-involved individuals and their families.  These individuals and their families must traverse a complex and expensive set of processes, whether they’re managing the initial financial shock of arrest and detainment, juggling associated financial obligations, searching for limited employment opportunities upon release, or handling the added expenses or lost income of having a family member who is incarcerated.  Through all this, these individuals and their families often rely on their social networks to get by.

The following five briefs examine the experiences of individuals and their families as they manage the multiple costs of pretrial, incarceration, and re-entry, as well as the challenges associated with securing income, employment, and accessing financial services upon their release.

"'They’re Taking My Stuff!' What You Need to Know about Seizure and Forfeiture"

The title of this post is the title of this new report by Dan Greenberg with the Competitive Enterprise Institute.  Here is its executive summary:

Law enforcement officers in the United States seize billions of dollars in cash and other personal property from members of the public every year.  Most of this seized property is eventually forfeited to state and federal governments.  These seizures and forfeitures rarely require proof of criminal conduct; rather, they often rest merely on the suspicion that the property in question is related to a crime.  As critics of these practices have noted, seizure and forfeiture sometimes result in confiscation of the property of innocent, law-abiding civilians.  Furthermore, because the proceeds of forfeiture typically go straight to law enforcement budgets, this creates perverse incentives that make it more likely that law enforcement officers and prosecutors might devote disproportionate effort to this endeavor.

This paper explains how seizure and forfeiture work.  More precisely, it contains an account of the relatively minimal legal protections that law-abiding civilians have against both seizure and forfeiture.  The paper also provides strategies that the law-abiding civilian can use to reduce the chance of having property seized while traveling.

House hearing to explore "How Court-Imposed Fees and Fines Unjustly Burden Vulnerable Communities"

Tomorrow morning at 10am ET, the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing titled "A Fine Scheme: How Court-Imposed Fees and Fines Unjustly Burden Vulnerable Communities." This hearing should be live-streamed at this link.

Via email, I received notice that Alexes Harris will testify, and that her essay “Monetary Sanctions as a Pound of Flesh” was just published today as part of the Brennan Center's Punitive Excess series.  Here is a paragraph from that essay: 

The system of monetary sanctions reinforces our two-tiered system of justice: one for people with financial means and one for people without.  Within a society riven by so much inequality, a system of punishment based on economic resources can never be fair or just.  This “coerced financialization” perfectly and purposefully places the freedom of poor and racially marginalized people on a perpetual layaway plan.  It’s a system so fully embedded in our criminal legal system that the American Rescue Plan Act, passed by Congress in March 2021 to alleviate the financial pains of the Covid-19 pandemic, allowed private collectors and courts to seize the $1,400 stimulus grants from people burdened with unpaid penal debt, either public or private.

Split Indiana Supreme Court finally rules that forfeiture of Tyson Timbs' Land Rover driven to small drug deal was constitutionally excessive

Well over two years ago, as blogged here, the Supreme Court ruled unanimously in Timbs v. Indiana, 139 S. Ct. 682 (2019), that the that Excessive Fines Clause of Eighth Amendment applies to the states and then said little else about how that limit on punishment was to be applied. Upon remand, as blogged here, the Indiana Supreme Court some months later issued a lengthy opinion explaining its approach to the Clause while remanding case to the state trial court to apply this approach. And yesterday, the case returned to the Indiana Supreme Court as Indiana v. Timbs, No. 20S-MI-289 (Ind. June 10, 2021) (available here), and resulted in a split opinion in favor of Tyson Timbs. Here is how the majority opinion starts:

We chronicle and confront, for the third time, the State’s quest to forfeit Tyson Timbs’s now-famous white Land Rover.  And, again, the same overarching question looms: would the forfeiture be constitutional?

Reminiscent of Captain Ahab’s chase of the white whale Moby Dick, this case has wound its way from the trial court all the way to the United States Supreme Court and back again.  During the voyage, several points have come to light. First, the vehicle’s forfeiture, due to its punitive nature, is subject to the Eighth Amendment’s protection against excessive fines.  Next, to stay within the limits of the Excessive Fines Clause, the forfeiture of Timbs’s vehicle must meet two requirements: instrumentality and proportionality. And, finally, the forfeiture falls within the instrumentality limit because the vehicle was the actual means by which Timbs committed the underlying drug offense.

But, until now, the proportionality inquiry remained unresolved — that is, was the harshness of the Land Rover’s forfeiture grossly disproportionate to the gravity of Timbs’s dealing crime and his culpability for the vehicle’s misuse?  The State not only urges us to answer that question in the negative, but it also requests that we wholly abandon the proportionality framework from State v. Timbs, 134 N.E.3d 12, 35–39 (Ind. 2019).  Today, we reject the State’s request to overturn precedent, as there is no compelling reason to deviate from stare decisis and the law of the case; and we conclude that Timbs met his burden to show gross disproportionality, rendering the Land Rover’s forfeiture unconstitutional.

Justice Slaughter concurs in the judgment with lengthy separate opinion that includes a notable baseball analogy while fretting that the "law we interpret for the public we serve demands more than our subjective 'totality' test can sustain."  And Justice Massa dissents with separate opinion that starts this way:

The Court offers a compelling case for letting the beleaguered Tyson Timbs keep his Land Rover after all these years.  And the opinion, much to its credit, goes the extra mile in its concluding paragraphs to note and predict that Timbs will be the rare heroin dealer able to show gross disproportionality when his car is forfeited.  Still, I respectfully dissent.

The forfeiture here was indeed harsh, perhaps even mildly disproportionate, given all the facts in mitigation.  But I part ways with the Court’s holding that it was grossly so.  Such a conclusion can only be sustained by finding the severity of the underlying felony to be “minimal,” as the Court holds today. I am skeptical that dealing in heroin can ever be a crime of minimal severity.  No narcotic has left a larger scar on our state and region in recent years, whether overly prescribed or purchased illicitly on the street.

Split(?) Sixth Circuit panel clarifies disparity between actual sentence and sentence under current law can be proper compassionate relief factor

I have been pleased to be able to blog about a significant number of significant circuit rulings on the reach and application of the sentence modification provisions amended by the federal FIRST STEP Act.  As regular readers know, in lots of (pre-COVID) prior posts, I made much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have long considered this provision a big deal because, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced on a variety of grounds. 

The Second Circuit back in September was the first circuit to rule in Zullo/Brooker, quite rightly in my view, that district courts have now broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 3582(c)(1)(A).  Since then, there have been somewhat similar opinions from the Fourth, Fifth Sixth, Seventh, Ninth and Tenth Circuits issued generally recognizing that district courts now have broad authority after the FIRST STEP Act to determine whether and when "extraordinary and compelling" reasons may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion (see rulings linked below).  And, yesterday a split(?) Sixth Circuit issued another ruling in this line of important precedents with US v. Owens, No. 20-2139 (6th Cir. May 6, 2021) (available here), which gets started this way and thereafter makes key observations on the way to reaching its holding:

Ian Owens appeals the district court’s order denying his motion for compassionate release because it concluded that the disparity between his lengthy sentence and the sentence that he would receive following the passage of the First Step Act was not an extraordinary and compelling reason to support compassionate release.  For the reasons set forth in this opinion, we REVERSE the district court’s order and REMAND for reconsideration of Owens’s motion for compassionate release consistent with this opinion....

Many district courts across the country have taken the same approach as McGee and Maumau and have concluded that a defendant’s excessive sentence because of mandatory minimum sentences since mitigated by the First Step Act may, alongside other factors, justify compassionate release. [cites to more than a dozen notable district court rulings modifying sentences]... 

As explained above, Owens presented three factors that he asserted together warranted compassionate release.  The district court here did not consider two of the factors Owens asserted and should have determined whether the combination of all three factors warranted compassionate release.  In accordance with our holding that, in making an individualized determination about whether extraordinary and compelling reasons merit compassionate release, a district court may include, along with other factors, the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied, we remand to the district court for further proceedings.

I keep putting a question mark next to the notation "split" with respect to this panel decision because here is the (seemingly peculiar) start to the opinion in Owens:

MOORE, J., delivered the opinion of the court in which DAUGHTREY, J., joined. THAPAR, J., will deliver a separate dissenting opinion that will be appended to the majority opinion at a later time.

Until Judge Thapar appends his dissenting opinion, I am not sure if he disagrees with the main holding of the panel majority or if he has some other concern with this decision.  I presume he is dissenting on the merits, but the idea that sentencing disparities can be at least a factor in considering compassionate release motions does not seem to me to be a particularly controversial proposition since the text of the applicable statute does not expressly provide for any excluded factors concerning what can serve an "extraordinary and compelling reason" to support a sentence modification.

A few of many, many prior related posts:

• Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court?
• New District Court ruling confirms that "any extraordinary and compelling reasons" can now provide basis for reducing imprisonment under 3582(c)(1)(A)
• Another thoughtful and thorough opinion finds statutory reform among "extraordinary and compelling reasons" for reducing sentence under 3582(c)(1)(A) 
• A dozen new grants of federal sentence reductions using § 3582(c)(1)(A), including another based on stacking/disparity/trial penalty concerns 
• Second Circuit panel rules unanimously that district courts have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" 
• Sixth Circuit panel rules "courts have full discretion" to determine extraordinary and compelling reasons for 3582(c)(1)(A) motions
• Seventh Circuit panel says old guideline does not limit potential "extraordinary and compelling reasons" for 3582(c)(1)(A) motions after FIRST STEP Act 
• Fourth Circuit becomes the fourth circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act
• Tenth Circuit becomes the latest circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act 
• Tenth Circuit issues another notable ruling on federal compassionate release authority after the FIRST STEP Act
• Fifth Circuit latest to issue notable ruling on federal compassionate release authority after the FIRST STEP Act
• Ninth Circuit provides yet another ruling on post-FIRST STEP Act federal compassionate release authority 

"What’s Really Wrong with Fining Crimes? On the Hard Treatment of Criminal Monetary Fines"

The title of this post is the title of this interesting new paper authored by Ivó Coca-Vila now available via SSRN.  Here is its abstract:

Among the advocates of expressive theories of punishment, there is a strong consensus that monetary fines cannot convey the message of censure that is required to punish serious crimes or crimes against the person (e.g., rape).  Money is considered an inappropriate symbol to express condemnation. In this article, I argue that this sentiment is correct, although not for the reasons suggested by advocates of expressivism.  The monetary day-fine should not be understood as a simple deprivation of money, but as a punishment that re-duces the offender’s capacity to consume for a certain period of time.  Conceived in this manner, I argue that it is perfectly suitable to convey censure.

However, the practical impossibility of ensuring that the person who pays the fine is the same person who has been convicted of the offense seriously undermines the acceptability of the monetary fine as an instrument of censure.  Minimizing the risk of the fine’s hard treatment being transferred to third parties is a necessary condition for the monetary fine to be considered a viable alternative to lengthy prison sentences.

"Tip of the Iceberg: How Much Criminal Justice Debt Does the U.S. Really Have?"

The title of this post is the title of this notable new report from The Fines and Fees Justice Center.  Here are some excerpts from the report's "Introduction and Executive Summary":

Over the past two decades, advocates, researchers, government agencies and the media have drawn increasing attention to the dangerous effects of fines and fees, particularly on communities of color and low-income people.  While those moving through the criminal justice system often experience fines and fees as a single, ongoing burden, there are key distinctions between how each of these revenue sources are assessed and imposed.

Fines are monetary sanctions imposed for violating the law. Fees (also known as costs, assessments and surcharges) are additional charges imposed to fund the criminal legal system and other government services.  Fines and some fees are imposed by courts when a person is convicted of a criminal or traffic offense or a municipal code violation. Typically, these fines and fees are owed to the court.  Fees are also often imposed by local governments or their agencies both before and after a person is convicted.  For example, probation fees may be imposed by a local probation department either before trial or after a conviction.  These fees are typically owed to either a city or county government.

Considerable research has uncovered the financial burden and unintended consequences wreaked on the people charged with paying fines and fees.  Yet there has been little, if any, investigation into how much debt is outstanding or delinquent nationwide.  One of the few studies to address the issue found that none of the eight jurisdictions studied had a central repository where information on the total amount of fines and fees owed could be found.  Understanding the full scope of our nation’s criminal justice debt problem is vital to the task of creating an equitable justice system.  Without this information, we cannot accurately evaluate the true impact of fines and fees as a source of government revenue or, more importantly, as a financial burden on those who owe court debt.  The absence of data also results in the absence of accountability for policymakers and justice system stakeholders who support and enact harmful fines and fees policies.

This report addresses fines and fees imposed at conviction in felony, misdemeanor, traffic and municipal ordinance violation cases.  We refer to these fines and fees as “court debt” because it is debt imposed by the court and typically collected by courts or private collection agencies working on a court’s behalf.

This court debt is just the tip of the iceberg when it comes to monetary sanctions in the criminal justice system.  Depending on the jurisdiction, the fines and fees imposed at conviction can be just a fraction of the total amount of unpaid fines and fees owed by people who are or were involved in the criminal legal system.  California, a state which maintains relatively robust data on fines and fees, serves an example — outstanding debt owed to California from the fines and fees imposed at conviction is equal to roughly $10 billion; roughly $16 billion is owed to the state’s counties for one or more of the 23 administrative fees that counties are authorized by state law to impose; and approximately $360 million was owed to counties in juvenile fees.

We chose to focus our investigation on court debt because courts keep a record of every case, and those records should specify the amount of fines and fees imposed at conviction.  We assumed that courts routinely aggregated that data, allowing them to determine the amount of fines and fees assessed.  We also assumed that courts would track how much of those fines and fees were actually collected.  In an effort to obtain this critical information, the Fines and Fees Justice Center contacted judicial offices and government agencies in all 50 states and the District of Columbia that might have data related to outstanding court debt. In a few states, the information related to the data request was already publicly available, but for most of the jurisdictions, a formal request was submitted....

But for half the country ... the full extent of our nation’s problem with court debt is shockingly untraceable and unknown.  And it’s not just the numbers that matter.  If states do not have the means (technological or otherwise) to determine how much money they are owed, there is a strong possibility that reliable data about who holds that debt may also be out of reach.  Without this vital information, stakeholders cannot appropriately weigh other socio-economic factors (apart from poverty) that may correlate with an inability to settle one’s court debt. How can we intelligently assess policy solutions when we can’t obtain a complete view of the problem?...

Knowing how much court debt exists will also allow us to accurately assess whether government resources are being wasted trying to collect debt that people will never be able to pay.  According to a report published by the Brennan Center for Justice, it costs New Mexico’s largest county, Bernalillo, at least $1.17 to collect every dollar of revenue it raises from fines and fees.  The report also found that some Texas and New Mexico counties spend 121 times what the IRS spends to collect taxes on fines and fees collection efforts.  These are valuable funds that could be invested in our communities....

Based on the information that was received, we can document that at least $27.6 billion of fines and fees is owed across the nation.  This figure grossly understates the amount of court debt that people living in the U.S. cannot afford to pay because only 25 states provided data, and the information that many provided was incomplete.  Information concerning the debt totals for the remaining 25 states and the District of Columbia could not be provided or was not available. 

"Reckless Lawmaking: How Debt-Based Driver's License Suspension Laws Impose Harm and Waste Resources"

The title of this post is the title of this new ACLU research report.  Here is the start of its executive summary:

There is a growing movement by advocates, organizers, and lawmakers to address the ineffective and unfair system and collection of court ordered monetary obligations, or “fines and fees.”  The system of fines and fees is inextricably linked to over-policing, criminalization, and mass incarceration.  While it is nearly impossible to know the exact number of people charged with fines and fees on an annual basis due in part to a lack of standardized data collection policies, a recent study estimated there could be well over 30 million cases for misdemeanors, violations, and infractions punishable by fines and fees filed per year.  That number does not even include civil traffic offenses.  The punishment for such offenses may include hundreds or thousands of dollars in fines and fees.

When people cannot afford to pay their fines and fees on time, a warrant may be issued for their arrest and/ or their driver’s license may be suspended.  People arrested on such warrants are typically brought to jail and held until they can see a judge.  If they still cannot pay, the cycle of criminalization continues.  The system of fines and fees not only criminalizes poverty, but also exacerbates racial disparities in policing and prosecution.

Driver’s license suspension for failure to pay or failure to appear in court (i.e. debt-based suspension) is one of the most commonly imposed sanctions.  This penalty is particularly harmful because of the sheer number of people affected and because of the way these suspensions lead to further penalties.  The severity of the punishment far outweighs the underlying offense, which may not even be related to driving.  Currently, all but three states (Idaho, Mississippi, and Virginia) suspend for either failure to pay and/or failure to appear.  As a result, at least 11 million people are not allowed to drive simply because they cannot afford to pay fines and fees, while people who can afford to pay are spared. And the brunt of these policies falls disproportionately on people of color, contributing to existing racial disparities in the criminal legal system.

Since 2017, California, Hawai′i, Idaho, Maine, Maryland, Michigan, Mississippi, Montana, New York, Oregon, Texas, Virginia, West Virginia, and D.C. have enacted legislative reforms to curb the practice of debt-based suspensions for either failure to pay or failure to appear.  As of the publication of this report, similar legislation has been proposed in 11 additional states.  Related legislation has also been introduced at the federal level.

Proposed legislation to end the harmful practice of debt-based suspensions is often met with a challenge: overcoming fiscal notes that mistakenly predict significant negative fiscal impacts from ending debt-based driver’s license suspensions.  Fiscal notes for bills to end debt-based driver’s license suspensions tend to rely on assumptions based on imprecise data and more importantly, do not account for a number of other relevant factors that could offset the revenue generated from fines and fees such as the cost of collecting and enforcing payment.  Furthermore, fiscal notes tend to deprioritize, and in some cases ignore altogether, the toll debt-based suspensions have on people affected by this policy.

In this report we highlight the individual and systemic costs that are often ignored in these types of fines and fees reform bills.  Specifically, this report discusses the penalty of suspending driver’s licenses as a consequence for unpaid fines and fees and the devastating consequences it imposes on impacted individuals.  We also make recommendations for lawmakers to more accurately consider the value of continuing to fund government services through predatory fines and fees in light of the consequent harm.

"What Is An Excessive Fine? Seven Questions to Ask After Timbs"

The title of this post is the title of this new paper authored by Wesley Hottot now available via SSRN.  Here is its abstract:

This Article explains how Timbs v. Indiana does more than hold that the Eighth Amendment’s Excessive Fines Clause applies to state and local authorities.  Timbs also gives definition to those “excessive fines” the Constitution guarantees “shall not be . . . imposed.”

This definition emerges when Timbs is read alongside three other decisions: (1) Austin v. United States — the Supreme Court’s decision holding that forfeitures are “fines” within the meaning of the Excessive Fines Clause; (2) United States v. Bajakajian — the only other case in which the Supreme Court has applied the Excessive Fines Clause; and (3) the Indiana Supreme Court’s decision on remand in Timbs, which surveys all available case law and adopts a helpful framework for determining excessiveness.  Timbs, Austin, and Bajakajian, when combined with examples from federal circuit courts and state high courts, represent a cogent standard for excessiveness.  This emerging standard can be summarized using the familiar “five W’s (and one H).”

There are seven salient questions: Who committed what offense; when and where; what property is the government taking; how was that particular property involved in the offense; and why does the government want it?  By answering these questions based on all the evidence, courts can determine whether a fine or forfeiture is excessive.

Like the five Ws, the seven questions of excessiveness are open-ended by design.  The meaning of “excessive fine” has been open ended and fact-specific for a long time.  The Eighth Amendment’s standard can be traced through centuries of Anglo-American law.  Yet, the standard has never been reduced to strict factors, rigid formulae, or balancing tests. Instead, the “fundamental” and “deeply rooted” right against excessive economic sanctions requires courts to focus on all the circumstances of a particular offense and particular offender.  Each case is viewed holistically, considering what punishments are available, those already imposed, the effect that additional economic penalties will have on the offender and her community, the government’s motivations, examples in case law, and the historical purposes of the protection against excessive fines.  The rich history of that protection, as Timbs makes clear, is key to understanding the meaning of both the Excessive Fines Clause and the Fourteenth Amendment that makes it applicable to state and local government (like virtually all Bill of Rights protections).

Each of the seven questions is explained with reference to the excessiveness standard announced on remand in Timbs, relevant Supreme Court decisions, and examples from lower courts shedding additional light.  The result is an Eighth Amendment excessiveness standard with contours and shape but little in the way of firm boundaries.  Others have proposed a balancing test; this Article proposes an open-ended inquiry that should be allowed to develop on a case-by-case basis.  Put differently, I regard the indeterminate nature of the excessiveness inquiry as a feature, not a bug, of constitutional design.

"The Burdens of the Excessive Fines Clause"

The title of this post is the title of this new article now available via SSRN authored by Beth Colgan. Here is its abstract:

A key component is missing from the Eighth Amendment’s excessive fines clause doctrine: who has the burden of proof?  This question — which has been essentially ignored by both federal and state courts — is not just a second order problem.  Rather, the assignment of burdens of proof is essential to the clause’s enforcement, making it harder — or easier — for the government to abuse the revenue generating capacity of economic sanctions in ways that can entrench poverty, particularly in heavily-policed communities of color.

This Article takes on this question by first sorting through a morass within the U.S. Supreme Court’s due process doctrine as it relates to assessing the fundamental fairness of procedural practices, including the assignment of burdens of proof.  After offering a framework that reconciles the doctrine, it applies that frame to the excessive fines context by breaking the “burden of proof” into four component parts: the burden to raise the excessive fines claim, the burden of producing evidence relevant to that claim, the burden of persuading the decisionmaker as to the result, and the standard of proof to be employed in that determination.  While the government and private interests at stake remain constant across these various burdens, disentangling them allows a more exacting inquiry into the risk of an erroneous imposition of excessive fines.  In particular, it allows examination of how lawmakers have crafted related processes and structures—such as the refusal to provide counsel or the vast array of collateral consequences attached to both non-payment and conviction — that make it more likely that abuses of power will occur absent the check on authority burdens of proof can help provide.

"Does Forfeiture Work? Evidence from the States"

The title of this post is the title of this notable new report from the Institute for Justice and authored by Brian Kelly.  Here is the report's executive summary:

This study provides the first multistate analysis of whether forfeiture works to fight crime or is, instead, used primarily to generate revenue.  These competing claims lie at the heart of the policy debate over forfeiture, a legal tool that allows law enforcement agencies to seize and permanently keep people’s cars, cash and even homes if they suspect the property is connected to criminal activity.  Typically, any proceeds from the property go to law enforcement coffers. Critics charge that this creates an improper incentive for police and prosecutors to pursue forfeiture revenue instead of justice, especially under civil forfeiture laws that do not require a conviction or even criminal charges to forfeit property.  Law enforcement and other proponents counter that forfeiture is an essential crime-fighting tool and that forfeiture proceeds can help law enforcement fight more crime.

To test these claims, this study uses a newly assembled set of forfeiture data from five states that use forfeiture extensively — Arizona, Hawaii, Iowa, Michigan and Minnesota — as well as detailed state and local crime, drug use and economic data.  The study examines forfeitures under state law alone as well as those conducted in concert with the federal government.

Results show:

• More forfeiture proceeds do not help police solve more crimes — and they may, perversely, make police less effective at solving violent crimes.
• More forfeiture proceeds do not lead to less drug use, even though forfeiture proponents have long cited fighting the illicit drug trade — and the reduction of drug use — as a primary purpose of forfeiture.
• When local budgets are squeezed, police respond by increasing their reliance on forfeiture.  A one percentage point increase in unemployment — a common measure of economic health — was associated with an 11% to 12% increase in forfeiture activity.

In other words, this study finds no material support for the claims that forfeiture fights crime, either by enabling police to solve more crimes or by reducing drug use.  It does, however, find economic conditions have a large and statistically significant effect on forfeiture activity, suggesting that at least some forfeiture activity is motivated by a desire for revenue.

These results, like those from earlier studies, are particularly salient now, when local government budgets are suffering due to the COVID-19 pandemic.  The data suggest that during economic times like these police may pursue more forfeiture.

This report adds to mounting evidence that forfeiture fails to serve the public good, all while violating basic rights to property and due process, thus demonstrating the pressing need for forfeiture reform.

"The Treatment-Industrial Complex: Alternative Corrections, Private Prison Companies, and Criminal Justice Debt"

The title of this post is the title of this notable new paper authored by Laura Appleman and now available via SSRN.  Here is its abstract:

Out of the 6.7 million adults caught up in the criminal legal system, approximately 4.5 million are under correctional control outside of prisons and jails.  Within this hidden world of “alternative corrections,” people who are arrested, detained, imprisoned, put on probation or diversion, and even released are forced to pay a growing amount of money to various for-profit “criminal justice” actors.  Alternatives to incarceration are conditioned on fines, fees, and other forms of wealth extraction, causing a vicious cycle of poverty and indebtedness that is virtually impossible to escape. 

This Article explores and analyzes the little-researched area of criminal justice debt arising from alternative corrections: how private corrections companies profit from supervising those individuals released, paroled, sent to rehabilitation or diversion, placed on probation, or subject to forensic or civil commitment.  These under-examined forms of for-profit correctional supervision — the treatment-industrial complex — have turned supposedly progressive alternatives to incarceration into cash-register justice. 

"Money and Punishment, Circa 2020"

The title of this post is the title of this big new collection of materials now available via SSRN put together by multiple authors (mostly based out of Yale Law School).  Here is part of the abstract:

Money has a long history of being used as punishment, and punishment has a long history of being used discriminatorily and violently against communities of color.  This volume surveys the literature on the many misuses of money as punishment and the range of efforts underway to undo the webs of fines, fees, assessments, charges, and surcharges that have been used as sources of funds for governments at all levels.  Whether in domains that are denominated “civil,” “criminal,” or “administrative,” and whether the needs are about law, health care, employment, housing, education, or safety services, racism intersects with the criminalization of poverty in all of life’s sectors to impose harms felt disproportionately by people of color.

These materials are lengthy because of the proliferation of research on this subject, as well as the need to bridge legal and public finance analyses.  The first segment, using “Ferguson as a Frame,” reflects the impact of the killings of Michael Brown in Ferguson in 2014 and of George Floyd in Minneapolis in 2020, as well as the mass protest movement underway related to those events....

The second segment, Funding Government: Fiscal Incentives, Inequalities, Reform, and Abolition, reflects the importance of understanding public finance systems and tax mechanisms to learn how to alter structures of government funding to reduce or eliminate monetary sanctions.  The questions are why and how government funds are collected and allocated, and the impact of various modes of financing. Researchers have documented how certain funding mechanisms produce and reinforce inequality, and have honed in on the effects of funding government services through fines and fees in state and local public finance systems.  The readings consider the decision-making and the politics that drive assessments. Knowing these incentives is requisite to changing them, and throughout this volume, commentators examine means to stop pernicious fiscal policymaking.

The third segment, The Practices, Law, and Harms of Tying Monetary Assessments to Law Enforcement Systems, includes readings about the history of criminal legal obligations, their impacts on individuals and families, how the harms track race and class, and what changes could make dents in the systems of unfairness.  Excerpted essays explore government funding mechanisms and examine the formal distinctions among categories labeled “tax,” “fine,” and “fee,” their functional overlaps, and their effects. Other materials address aspects of constitutional and state and municipal law that frame some of the discussion and litigation....

The final set of edited readings, In the Courts and Legislatures, Circa 2020, and Shadowed by COVID-19, provide a partial account of the many lawsuits and legislative initiatives between 2018 and 2020, including recent months when COVID-19 came to dominate the world. As the judicial opinions reflect, some federal appellate courts are proffering limited readings of the 1980s precedents and narrowing the scope of constitutional protection for the intersection of poverty and of the “use” (voluntary or not) of courts.

"Due Process in a Fee-Driven State"

The title of this post is the title of this notable new article now available via SSRN authored by Penny White and Glenn Harlan Reynolds.  Here is its abstract:

Inspired by the Justice Department's report on criminal law enforcement and the use of courts as a revenue-generation machine in Ferguson, Missouri, we address the widespread problem of policing for profit in light of two classic Supreme Court cases on due process, and two very recent Court of Appeals cases that focus specifically on the due process implications of a justice system dependent for funding on those people it "serves."  We argue that when everyone participating in the justice system is aware that the system itself depends on sufficient revenue from fines, fees, and forfeitures, that very dependency is a conflict of interest sufficient to violate due process rights. 

In this short article, we will look briefly at the history and law of judicial independence, after which we will describe the extent to which the modern judicial system — and, indeed, the entire law enforcement apparatus — depends upon extracting money from a steady stream of individuals who appear before it creating an untenable vested interest in charging and collecting and resulting in a fundamentally unfair system.  We then offer a number of solutions, and find Supreme Court support for our approach in a surprising place.

"Conviction, Imprisonment, and Lost Earnings: How Involvement with the Criminal Justice System Deepens Inequality"

The title of this post is the title of this notable new report from the Brennan Center. A Foreword to report was authored by Joseph Stiglitz, and here is part of its text:

America is approaching a breaking point.  For more than four decades, economic inequality has risen inexorably, stunting productivity, weakening our democracy, and leaving tens of millions struggling to get by in the world’s most prosperous country.  The crises that have rocked the United States since the spring — the coronavirus pandemic, the resulting mass unemployment, and a nationwide uprising for racial justice — have made the inequities plaguing American society more glaring than ever.

This year’s intertwined emergencies have also driven home a reality that some would rather ignore: that the growing gap between rich and poor is a result not just of the market’s invisible hand but of a set of deeply misguided policy choices.  Among them, this groundbreaking report reveals, is our entrenched system of mass incarceration.  Mass incarceration reflects and exacerbates so many dimensions of this country’s divides — in income and health, in voice and power, in access to justice, and most importantly, over race.

The number of people incarcerated in America today is more than four times larger than it was in 1980, when wages began to stagnate and the social safety net began to be rolled back.  We’ve long known that people involved in the criminal justice system — a group that’s disproportionately poor and Black — face economic barriers in the form of hiring discrimination and lost job opportunities, among other factors.  This report demonstrates that more people than previously believed have been caught up in the system, and it quantifies the enormous financial loss they sustain as a result; those who spend time in prison miss out on more than half the future income they might otherwise have earned.

Ascertaining through careful statistical analyses just how costly the mass incarceration system has been to the people ensnared by it is a major achievement.  These findings reframe our understanding of the issue: As a perpetual drag on the earning potential of tens of millions of Americans, these costs are not only borne by individuals, their families, and their communities.  They are also system-wide drivers of inequality and are so large as to have macroeconomic consequences....

These costs come on top of other enormous costs imposed on society by our mass incarceration system.  Some states have spent as much on prisons as on universities.  The pandemic will make public funds even scarcer.  More money spent on incarcerating more people will weaken our future, while the same money spent on expanding our universities will lead to a stronger 21st century economy.

Mass incarceration has been a key instrument in voter suppression, because people with criminal records are deprived of the right to vote in some states, and in many states former prisoners are responsible for re-registering once they are released.  This undermines democracy: since poor and Black people suffer from mass incarceration disproportionately, they will be underrepresented in our electorate.

Meanwhile, a nationwide reckoning over deep-rooted racial injustice is forcing our country to come to terms with the ways in which these injustices have been perpetuated in the century and a half since the end of slavery.  For the past four decades, mass incarceration — with the deprivation of political voice and economic opportunity that is so often associated with it — has been at the center.  It renders economic mobility for so many Black Americans nearly impossible....

This report shows what needs to be done to stop mass incarceration. Equally important, it shows how to deal with its legacy: the large number of American citizens with criminal records.  It was wrong that they lost so many of their formative years, often for minor infractions. It is doubly wrong that they suffer for the rest of their lives from the stigma associated with imprisonment.  For them, and for our entire society, we need to minimize the consequences of that stigma.

There is much that has to be done if our society is to fully come to terms with our long history of racial injustice.  Stopping mass incarceration is an easy place to begin.  This report makes a compelling case for the enormous economic benefits to be derived from doing so.

"Fees, Fines, and the Funding of Public Services: A Curriculum for Reform"

The title of this post is the title of this interesting new reader produced by a group of law school centers. Here is the full introduction to the collection of articles:

Since 2018, the Liman Center at Yale Law School and Harvard Law School’s Criminal Justice Policy Program (CJPP), in partnership with the Fines & Fees Justice Center and the Berkeley Law Policy Advocacy Clinic, have collaborated to mitigate the problems faced by people of limited means and resources who interact with criminal punishment systems around the United States.  Through a series of workshops and materials, we have examined how law has enabled and, on occasion, limited these harms, experienced disproportionately by communities of color.

Budget pressures are part of what drives state and local governments to rely on monetary sanctions.  Reform efforts have, at times, been stymied by arguments that governments “need” the money generated by regressive fines and fees. In 2008, during and after the Great Recession, state and local governments responded to sudden budget pressures by searching for new streams of revenues— including from a host of legal assessments.  Given that experience, we know that the economic disruptions created by the current COVID-19 crisis will likely result in governments’ considering additional use of monetary sanctions and “user” fee financing to generate revenue.  The current economic constraints place strains on subnational budgets even more acute than those experienced a dozen years ago.  Thus, we fear that governments may scale up the imposition and the enforcement of monetary sanctions.  More tools are needed to resist these efforts, as the economic effects of the pandemic will frame the years to come.

Knowledge of subnational systems of taxing and budgeting and of fiscal policymaking processes can be put to use to reduce and to end governments’ reliance on user fees for courts and for other aspects of criminal systems.  This reader aims to help experts in public finance to understand the misuse of court-based assessments which are regressive revenue streams.  Subsequent volumes will provide a primer on public finance for people knowledgeable about the law and practices of unfair monetary sanctions through an overview of how money is collected and allocated at the state and local level.  These materials interact with ongoing seminars, sometimes virtual, to link people expert in public finance with their counterparts seeking to reform unfair monetary sanctions.

Through monographs such as this, we hope to support work underway to shape just and equitable revenue-generation mechanisms that avoid imposing harmful costs on vulnerable individuals, families, and communities.  This is the third volume in this series.  See ARTHUR LIMAN CENTER FOR PUBLIC INTEREST LAW, WHO PAYS? FINES, FEES, BAIL, AND THE COST OF COURTS (2018), ARTHUR LIMAN CENTER FOR PUBLIC INTEREST LAW, ABILITY TO PAY. See also Inability to Pay: Court Debt Circa 2020, N.C. L. REV.

We should note that, to be concise, we have provided just a snapshot of a rich literature.  In the few essays excerpted here, we have cut sections and references, and we provide the original publication information to enable easy access to the originals.  This project is made possible by support from Yale Law School, the Liman Center, and Arnold Ventures. Our hope is that through these many efforts, fairer and more just practices will result.

"Civil-Asset Forfeiture Should Be an Easy Place to Start on Criminal-Justice Reform"

The title of this post is the title of this new National Review commentary authored by Isaac Schorr.  Here are excerpts:

Civil-forfeiture reform is the principal focus of the FAIR Act, and for good reason: The process is broken.  Under this form of forfeiture, the government brings charges against the property itself without leveling any against the property owner.  On a federal level, criminal behavior need not be proven for law enforcement to initiate civil-asset-forfeiture proceedings; mere suspicion is considered reason enough.  It’s worth noting that as California’s attorney general, Democratic vice-presidential nominee Kamala Harris strongly supported handing this same power to local law enforcement — for the people, of course.

Once proceedings have been initiated, the government needs to prove, by a preponderance of the evidence (51 percent sure), only that the property is subject to forfeiture.  The burden of proof then belongs — in most states — to the owners of the property, who must show that they were neither involved in any criminal activity nor aware that their property was being used for criminal purposes, or that, if it were, then they took steps to end that criminal activity.  Worst of all, property owners are not even necessarily entitled to legal representation. Whether they are granted this basic right is left to the discretion of the presiding judge.

Why has civil-asset forfeiture, which flies in the face of American expectations of due process and the presumption of innocence, been allowed to persist in its current form? It’s all about the Benjamins.  The federal government takes in net revenues exceeding $1 billion annually from asset forfeiture, and states share in the cash cow through “equitable sharing.”  This practice, which sounds innocent enough, provides local authorities with perverse incentives.  Per the Institute for Justice, equitable sharing allows law enforcement to “bypass state laws that limit civil forfeiture.  By collaborating with a federal agency, they can move to forfeit property under federal law and take up to 80 percent of what the property is worth,” which gives them “a direct financial stake in forfeiture encourag[ing] profiteering and not the pursuit of justice.”  What police department would not take advantage of such a profitable opportunity, particularly when those profits are not subject to the same oversight as taxpayer dollars?

The problems with civil-asset forfeiture are many; the FAIR Act addresses nearly all of them.  It would raise the evidentiary standards that the government needs to meet to the “clear and convincing” level.  It would place the burden of proof on the government to show a property owner’s knowledge of criminal activity rather than asking property owners to make the case for their innocence.  It would guarantee property owners the right to legal representation.  Perhaps most important, it would end equitable sharing, incentivizing police departments to stop spending their time pursuing frivolous forfeiture claims.  The act’s changes to the reporting structure are also important.  The Justice Department does not currently provide a public breakdown of how much of their annual seizures are criminal, administrative, and civil forfeiture, respectively.  The FAIR Act would mandate such a breakdown....

The FAIR Act has been endorsed by the Heritage Foundation and American Civil Liberties Union and is cosponsored by legislators as liberal as 2016 Bernie Sanders backer Tulsi Gabbard and as conservative as Freedom Caucus member Paul Gosar.  A functioning Congress acting in the best interest of the American people would take notice of this broad consensus and act swiftly to pass this piece of commonsense legislation.

Ninth Circuit panel thoughtfully debates whether and when overtime parking fees might be an unconstitutional Excessive Fine

A Ninth Circuit panel yesterday handed down an interesting Eighth Amendment opinion on a topic that is (too) dear to my overtime parking heart. Here is how the majority opinion in Pimentel v. City of Los Angeles, No. 18-56553 (9th Cir. July 22, 2020) (available here), gets started:

In the opening scene of La La Land, drivers stuck in traffic spontaneously sing and dance on top of their cars and in the streets.  Hollywood, however, rarely resembles reality.  On any given day, Los Angelenos sigh and despair when mired in traffic jams.  One small way the City of Los Angeles tries to alleviate traffic congestion is to impose time restrictions — and fines — for limited public parking spaces.  If a person parks her car past the allotted time limit and forces people to drive around in search of other parking spaces, she must pay a $63 fine.  And if she fails to pay the fine within 21 days, the City will impose a late-payment penalty of $63.

Appellants, who had parking fines and late fees levied against them, challenge the Los Angeles parking ordinance as violating the Eighth Amendment’s Excessive Fines Clause.  We hold that the Excessive Fines Clause applies to municipal parking fines.  We affirm the district court's summary judgment order that the initial parking fine is not grossly disproportionate to the offense and thus survives constitutional scrutiny.  But we reverse and remand for the district court to determine whether the City’s late fee runs afoul of the Excessive Fines Clause.

The concurrence authored by Judge Bennett gets started this way:

Because the City of Los Angeles conceded that the Excessive Fines Clause applied to parking “fines,” I concur in the judgment.  I write separately because I do not believe the Excessive Fines Clause should routinely apply to parking meter violations.

Via 6-3 vote, SCOTUS refuses to vacate Eleventh Circuit stay that prevents certain persons with felony convictions from registering to vote

As reported in this CNBC piece, headlined "Supreme Court leaves in place Florida ‘pay-to-vote’ law aimed at felons," the Court this afternoon left in operation "a Florida law requiring those with felony convictions to pay fines before they may vote, potentially blocking about three-quarters of a million otherwise-eligible voters from the polls."  Here is more of the legal essentials: 

The case concerned an a 2018 ballot initiative in which voters in the state ended the permanent disenfranchisement of felons who had completed “all terms of sentence including parole or probation.”  The legislature defined the phrase the following year to include fines, restitution and other fees. Gov. Ron DeSantis, a Republican, signed the bill in June 2019. 

After civil rights groups challenged the legislature’s move, a federal judge blocked the law from going into effect, but that decision was halted by the 11th U.S. Circuit Court of Appeals, which is continuing to consider the matter.

The American Civil Liberties Union, the Southern Poverty Law Center, and Campaign Legal Center asked the top court to reverse the 11th Circuit’s decision.  The groups argued in court papers that most of the 750,000 potential voters could not afford what they owed, and that many had no way of knowing how much they were required to pay.  In court papers, they urged the justices to block the law so that the August and November elections would not be “undermined by chaos and disenfranchisement.”

Attorneys for DeSantis argued that states were “under no obligation to reenfranchise felons at all.” They argued that “all Floridians will be irreparably harmed” if the court allowed “hundreds of thousands of ineligible voters to take part in the upcoming elections.”

Paul Smith, vice president of the Campaign Legal Center, said in a statement on Thursday that the Supreme Court’s order was “deeply disappointing.”

“Florida’s voters spoke loud and clear when nearly two-thirds of them supported rights restoration at the ballot box in 2018,” Smith said. “The Supreme Court stood by as the Eleventh Circuit prevented hundreds of thousands of otherwise eligible voters from participating in Florida’s primary election simply because they can’t afford to pay fines and fees.”

Technically, all that SCOTUS did today via this order was turn down an application to vacate the stay that the Eleventh Circuit had put in place. This order was via 6-3 vote, with Justice Sotomayor authoring a dissent joined by Justices Ginsburg and Kagan that starts and ends this way:

This Court’s order prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.  And it allows the Court of Appeals for the Eleventh Circuit to disrupt Florida’s election process just days before the July 20 voter-registration deadline for the August primary, even though a preliminary injunction had been in place for nearly a year and a Federal District Court had found the State’s pay-to-vote scheme unconstitutional after an 8-day trial.  I would grant the application to vacate the Eleventh Circuit’s stay....

This Court’s inaction continues a trend of condoning disfranchisement.  Ironically, this Court has wielded Purcell as a reason to forbid courts to make voting safer during a pandemic, overriding two federal courts because any safety-related changes supposedly came too close to election day.  See Republican National Committee v. Democratic National Committee, 589 U.S. ___ (2020) (per curiam).  Now, faced with an appellate court stay that disrupts a legal status quo and risks immense disfranchisement — a situation that Purcell sought to avoid — the Court balks.

"The Limits of Fairer Fines: Lessons from Germany"

The title of this post is the title of this new report from the The Criminal Justice Policy Program at Harvard Law School.  Here is a small part of the start and end of the long "Executive Summary" from the 156-page report:

Over the last few decades, advocates in the United States have exposed the injustices of high fines and fees that courts charge people sentenced to criminal and civil violations. Courts impose fines as punishment for offenses — often in addition to other punishment such as probation or jail — and they charge fees (also referred to as costs or surcharges) to fund the court and other government services.  The number of fees and the amounts assessed have been increasing over the last decades, in part because fees are being used to generate revenue for local and state governments.  Rarely, if ever, do U.S. courts consider people’s ability to pay before imposing these sanctions.  When people are unable to pay, they can become trapped in the system, facing a cycle of consequences including additional fees, court hearings, warrants, arrest, and incarceration.

In response to advocacy exposing how these punitive practices harm people and communities, jurisdictions have begun to reform.  The most direct efforts seek to repeal revenue-raising fines and fees.  More common, however, is the adoption of requirements that courts assess people’s ability to pay at the sentencing hearing, and/or before punishing people for nonpayment.  Though high monetary sanctions are prevalent in all courts, much of this reform attention has focused on misdemeanor courts that sentence ordinance violations and misdemeanor crimes. This is because fines are a common component of misdemeanor criminal sentences, and because there are clearer conflicts of interest inherent in the structure of some lower level courts that rely on fines and fees to fund their operations.

It is in this reform context that academics, advocates, and government leaders have considered day fines as a potential model for the United States.  Day fines are used in over 30 countries in Europe and Latin America to calculate fine amounts that are tailored to people’s ability to pay.   Day fines are set using a two-part inquiry.  Courts first consider the nature and seriousness of the offense, measured in units or days.  For example, a common low-level misdemeanor may receive 20 units.  Courts then calculate how much the person can pay per day/unit based on their individual financial circumstances.  The amount a person must pay per day is called the daily rate.  Someone earning very little may be required to pay $5 per unit for a total fine of $100, while someone earning more may be required to pay $20 per unit for a total fine of $400.  Day fines provide a framework for setting a fine based not just on the nature of the offense, but also on how much a fine will impact the person given their financial circumstances.  The resulting fines are theoretically more fair because people of different means experience the fines similarly.  A $400 fine affects a person earning that amount per week differently than a person who earns that amount in one day. In the United States, day fines hold the promise not only of making fines more fair, but also of making fines affordable to avoid the spiral of negative consequences that people face upon nonpayment.

Despite the theoretical resonance of day fines as a potential solution, there has been very limited information available about how this model works in practice.  This project fills this knowledge gap....

Germany’s example provides a useful starting point for jurisdictions in the United States that are considering the day fines model.  Germany’s experience demonstrates the need for strong political support, public education, and judicial buy-in, as well as a robust daily rate formula that will ensure day fines can be set at levels that people can afford to pay.  Germany also shows us that considering ability to pay at sentencing in every case is possible without being unduly cumbersome.  When considering day fines, jurisdictions should be thoughtful about their own political, socio-economic, and cultural realities, as well as the specific problems they are trying to address and how day fines would fit into their existing misdemeanor system.

This Report begins with a detailed overview of day fines in Germany, including specific policy details about the system’s design.  In the second part, we analyze that system and identify areas of consideration for those who might implement day fines in the United States.  We conclude with a decision guide for jurisdictions and advocates considering day fines.

"Paying on Probation: How Financial Sanctions Intersect with Probation to Target, Trap, and Punish People Who Cannot Pay"

The title of this post is the title of this lengthy new report released today by the Harvard Law School Criminal Justice Policy Program.  Here is the text of an email I received today concerning the release:

Today, CJPP releases its latest report entitled Paying on Probation: How Financial Sanctions Intersect with Probation to Target, Trap, and Punish People Who Cannot Pay.  In this report, we highlight how jurisdictions use probation to collect and enforce fines, fees, and restitution, and how linking these two systems together exacerbates the harms caused by each.  When payment of outstanding financial sanctions is made a condition of probation, failure to pay can result in being found in violation of probation and punished accordingly.

Through a 50 state survey and interviews with over 100 lawyers, judges, probation officers, and advocates, we explore how linking probation to financial sanctions leads to increased debt amounts, longer system involvement, and highly punitive responses to nonpayment.  On the basis of these and other findings, we call for a complete decoupling of probation and financial sanctions systems.

We release this report amidst a historic outcry for meaningful change in the wake of more senseless deaths at the hands of law enforcement.  As momentum on that front continues to build, we hope that this report can serve as a resource to advocates, lawmakers, and others who are thinking broadly about necessary and long overdue changes, including changes to other harmful aspects of our criminal legal system.

We’ve included a one-page summary of our findings, as well as the full report.  We hope this report can help you in your work.

Sharon Brett, Neda Khoshkhoo, and Mitali Nagrecha

"The Hidden Cost of the Disease: Fines, Fees, and Costs Assessed on Persons with Alleged Substance Use Disorder"

The title of this post is the title of this new paper authored by Meghan O'Neil and Daniel Strellman and available via SSRN.  Here is its abstract:

The age-old adage “crime doesn’t pay” is true in more ways than one. This article stems from two years of field work in problem-solving treatment courts; circuit, district, and federal courts; addiction treatment centers; and probation offices throughout the State of Michigan.  Persons experiencing substance use disorder (SUD) can rapidly amass criminal charges on any given day, given that the private use of controlled substances is illegal, as is driving while intoxicated.  These repeated behaviors can, and frequently do, culminate in incarceration, supervision (e.g., probation or parole), and hefty fines and fees.  Moreover, persons experiencing SUD are far from uncommon: overdose is now the leading cause of death for Americans under 50, and in 2018, focus groups with state district court judges in Michigan estimated that four out of every five criminal defendants were experiencing problematic substance use, illuminating the overwhelming degree to which SUD permeates our criminal justice system.

Practitioners, academics, and policymakers involved with the justice system ought to be concerned with the costs assessed in SUD cases because they can be potentially expensive to collect, excruciatingly burdensome on vulnerable people involved with the justice system trying to maintain sobriety and re-enter society, and present a generally inefficient method of punishment when the cost of collection outweighs the total amount which is ultimately collected by the state.  While crime doesn’t pay generally, it is particularly costly for vulnerable defendants experiencing SUD.  Identifying best practices for supervision of SUD offenders might present avenues to improve the cost effectiveness and efficiency of fines in ways that actually reduce subsequent offending — as fines were meant to do.

"Fees, fines and ability to pay"

The title of this post is the title of this new Hill commentary authored by Lauren-Brooke Eisen and Matthew Menendez of the Brennan Center for Justice. Here is how the piece starts and ends:

In far too many criminal courts across the country, judges impose fees and fines on defendants without consideration for their ability to pay.  The result: people struggling financially are saddled with debt that makes it nearly impossible for them to support themselves and their families.  The devastating consequences of these practices are gaining national attention.  In fact, five of the current Democratic presidential candidates have joined the growing outcry against this approach and are trying to address the problem through their criminal justice policy platforms.

Despite promising momentum for change, some government officials hold on, partly under the belief that they need fines and fees to generate revenue.  But a hard look at the numbers shows that collecting fees and fines is highly inefficient and costs much more than many policymakers ever realized.

Compared to fines issued with sentences, court fees tend to slip past the public’s attention.  Depending on where you live, if you are arrested for low-level offenses such as loitering or possessing a small amount of drugs, you could get charged dozens of fees: a fee for filing your paperwork, a fee for the court to figure out if you qualify for a public defender, a fee for your public defender’s services, a universal fee wholly unrelated to your case (like the one that funds a DNA program), a court technology fee, and more.

We studied fees and fines, observing more than 1,000 hearings in three states and found that, in most places, courts rarely consider a defendant’s finances and what he or she might be able to pay before requiring them to pay mandatory court fees and fines [report available here and here].  For people who can’t afford the amount they owe, they become debtors whose bill collectors are judges and the police.

We assessed the costs for state and local governments to enforce and collect fees and fines by analyzing data from 10 counties in Florida, New Mexico, and Texas, as well as state-level data for the three states.  The waste that we discovered tell us that every city, county, and state government should look hard at their fees and fines policies.  The net gain might be far less than they have imagined, the losses far more damaging.

Because many low-income people can’t pay their debt, billions of dollars in fines and fees go unpaid every year while these debts hang over people, spiraling out of control as penalties pile up.  In fact, our report found that from 2012 to 2018, Florida, New Mexico, and Texas amassed a total of almost $1.9 billion in uncollected debt.  This debt is made up of millions of tiny debts owed by people who may never be financially equipped to pay them off....

State and local governments can stop placing unjust burdens on poor people and their families.  They can start to do so by enacting legislation to eliminate the fees that the court imposes on criminal defendants.  In many places, the courts rely primarily on fees for funding, as opposed to taxes, despite the fact that they operate in service to the public as a whole. States and localities should make general tax revenue the primary source of funding for the courts, rather than fees.

States should also reform how they impose fines.  To guard against assessing fines that defendants can’t afford, states should require judges to evaluate a person’s ability to pay and then apply a sliding scale to determine the amount.  After digging into the numbers, we can add fiscal irresponsibility and growing burdens to those most impacted by these debts to the reasons to dump these practices.  Every jurisdiction using fines and fees must stop and do the math — all of it.

"Financial Hardship and the Excessive Fines Clause: Assessing the Severity of Property Forfeitures After Timbs"

The title of this post is the title of this new paper authored by Beth Colgan and Nicholas McLean now available via SSRN.  Here is its abstract:

In the wake of the Supreme Court’s decision in Timbs v. Indiana — which held that the Fourteenth Amendment incorporates against the states the Eighth Amendment’s ban on the imposition of “excessive fines” — it is likely that state and lower federal courts around the nation will be called upon to further develop Excessive Fines Clause doctrine.  The Court’s historical exegesis in its Timbs opinion, as well as aspects of existing Eighth Amendment doctrine, support an analytical framework under which courts would look to the effects of property forfeiture on individuals and their families — in particular, the infliction of financial hardship — when assessing the severity of a forfeiture in the proportionality review context.  In this Essay, we sketch the outlines of a forfeitures jurisprudence that would take into account the ways that property deprivations may restrict employment and educational access, interfere with the ability to meet basic needs (including food, shelter, and medical care), create family and social instability, and impede the ability to satisfy legal obligations.

"The Steep Costs of Criminal Justice Fees and Fines: A Fiscal Analysis of Three States and Ten Counties"

The title of this post is the title of this big new notable report published by the Brennan Center for Justice and "produced with research assistance from the Texas Public Policy Foundation and Right on Crime." Here is the first part of the 68-page report's executive summary:

The past decade has seen a troubling and well-documented increase in fees and fines imposed on defendants by criminal courts. Today, many states and localities rely on these fees and fines to fund their court systems or even basic government operations.

A wealth of evidence has already shown that this system works against the goal of rehabilitation and creates a major barrier to people reentering society after a conviction.  They are often unable to pay hundreds or thousands of dollars in accumulated court debt. When debt leads to incarceration or license suspension, it becomes even harder to find a job or housing or to pay child support. There’s also little evidence that imposing onerous fees and fines improves public safety.

Now, this first-of-its-kind analysis shows that in addition to thwarting rehabilitation and failing to improve public safety, criminal-court fees and fines also fail at efficiently raising revenue. The high costs of collection and enforcement are excluded from most assessments, meaning that actual revenues from fees and fines are far lower than what legislators expect. And because fees and fines are typically imposed without regard to a defendant’s ability to pay, jurisdictions have billions of dollars in unpaid court debt on the books that they are unlikely to ever collect. This debt hangs over the heads of defendants and grows every year.

This study examines 10 counties across Texas, Florida, and New Mexico, as well as statewide data for those three states.  The counties vary in their geographic, economic, political, and ethnic profiles, as well as in their practices for collecting and enforcing fees and fines.

Upon SCOTUS remand, Indiana Supreme Court remand Timbs after setting out excessiveness standards

In Timbs v. Indiana, the US Supreme Court unanimously held that the Eighth Amendment's Excessive Fines Clause applies to the states, but then remanded the case back to the Indiana courts to figure out just how that Clause should apply in Tyson Timbs' case.  Today, the Indiana Supreme Court issued this opinion in which it further remands the case to the state trial court with the help of a lengthy opinion explaining its approach to the Clause.  Here is how the opinion starts and concludes:

Civil forfeiture of property is a powerful law-enforcement tool.  It can be punitive and profitable: punitive for those whose property is confiscated; and profitable for the government, which takes ownership of the property.

When a civil forfeiture is even partly punitive, it implicates the Eighth Amendment’s protection against excessive fines. And since that safeguard applies to the states through the Fourteenth Amendment, we now face two questions left open by the Supreme Court of the United States.  First, how should courts determine whether a punitive, in rem forfeiture is an excessive fine? And second, would forfeiture of Tyson Timbs’s vehicle be an excessive fine?

We answer the first question with an analytical framework similar to those of almost all courts to have addressed the issue.  For the second question, we remand for the trial court to determine, based on that framework, whether Timbs has cleared the hurdle of establishing gross disproportionality, entitling him to relief....

Conclusion

Over twenty-five years ago, the Supreme Court of the United States unanimously held that in rem forfeitures can be punitive and, thus, fines subject to the Eighth Amendment’s excessiveness limitation.  It left to lower courts the task of establishing the appropriate measure of excessiveness — a task that we take up today.

We accordingly hold that a use-based in rem fine is excessive if (1) the property was not an instrumentality of the underlying crimes, or (2) the property was an instrumentality, but the harshness of the punishment would be grossly disproportional to the gravity of the underlying offenses and the owner’s culpability for the property’s misuse.

Here, Timbs’s Land Rover was an instrumentality of the underlying offense of drug dealing.  But we remand for the trial court to answer the question of gross disproportionality based on the framework we set out.

"Will the Supreme Court Rein in 'Excessive Fines' and Forfeitures?: Don’t Rely on Timbs v. Indiana"

The title of this post is the title of this new paper authored by Nora Demleitner now available via SSRN. Here is its abstract:

The Supreme Court’s decision in Timbs v. Indiana, 139 S. Ct. 682 (2019), last term buoyed the hopes of those who saw it as a powerful signal to states and municipalities to rein in excessive fines, fees, and forfeitures.  Yet, the Court seems disinclined to fill the term “proportionality” with robust meaning or wrestle with Eighth Amendment challenges to fines and fees.  Those steps would be required for the Excessive Fines Clause to function as an effective backstop against revenue-raising and increasingly abusive local and state practices.  In the end, state courts and state legislative changes may more likely address effectively the essential question of what is excessive and restrain criminal justice actors from imposing ever heavier financial burdens on those caught up in the system.

This article first sets out the Supreme Court’s decision in Timbs in light of the incorporation debate and prior case law in the area.  Next it turns to the underlying but unaddressed contours of “excessive” in the context of fines and forfeitures.  The article then provides a broader look at forfeiture, including the interplay between state and federal law enforcement in the area.  Finally, the piece addresses state and local fines and fees, which will now be subject to Eighth Amendment analysis.  The Court, however, rejected the first opportunity to take up such a challenge.  At least for now, litigants may be more successful in reining in abusive fines and forfeitures in state legislatures and state courts.

"Timbs v. Indiana: Toward the Regulation of Mercenary Criminal Justice"

The title of this post is the title of this new article forthcoming in the Federal Sentencing Reporter authored by Wayne Logan and now available via SSRN.  Here is its abstract:

In Timbs v. Indiana, the Supreme Court unanimously held that the Eighth Amendment's Excessive Fines Clause is an incorporated protection under the Fourteenth Amendment and therefore regulates state and local governments.  The unanimous result, wedding liberal and conservative Justices alike, was backed by an ideologically diverse group of amici, including the ACLU, the U.S. Chamber of Commerce, and the Cato Institute.  The government practice giving rise to the litigation — civil asset forfeiture — has been subject to widespread criticism, fueled by troubling accounts of what has come to be known as “policing for profit.”  Reaction to Timbs ran the gamut from regarding it as “huge” to being a decision having little impact.  As I discuss in this symposium contribution, Timbs is important both because it provides a new federal constitutional basis to regulate government targeting of criminal defendants for revenue generation and signals the Court’s broader recognition of the problematic nature of the widespread practice.

"Proportionate Financial Sanctions: Policy Prescriptions for Judicial Reform"

The title of this post is the title of this new report from The Criminal Justice Policy Program at Harvard Law School Here is how the 80-page report is described on this webpage:

Proportionate Financial Sanctions: Policy Prescriptions for Judicial Reform sets forth a new vision for the role courts must play in ensuring proportionate policies and practices for imposing and enforcing monetary sanctions.  This report is a tool for judges, lawmakers, practitioners, and advocates who are pushing for changes in state and local courts, and offers concrete reforms that judges can implement on their own, without legislative action, to ensure that financial sanctions are more proportionate and fair, and to prevent the worst harms that excessive fines and fees can create for poor people.  Adoption of CJPP’s recommended reforms would, on the whole, transform judges’ thinking about monetary sanctions and their impact on the poor.

Overall, the goal of this new framework is to move judicial culture away from the punitive nature of current systems, and towards policies and practices built on proportionality, fairness, and the desire to see individuals complete their sentences and move on with their lives.  While recognizing the need for certain foundational changes (such as eliminating all revenue-raising fees and surcharges, and decreasing the number of cases in the system through decriminalization and diversion), this report details specific actions that can and should be taken immediately by the courts to reduce the consequences of disproportionate monetary sanctions, absent legislative action. Using CJPP’s experience working with different jurisdictions and other reform efforts nationwide as a guide, this report advocates for holistic, comprehensive, and meaningful changes to how courts think about proportionate sentencing, alternatives to payment, monitoring of payment, responses to non-payment, and punitive enforcement mechanisms.  If implemented robustly, these reforms would radically change individuals’ experiences with criminal legal systems.