Justice Fees and Fines in the COVID-19 Era

May 6, 2020 | Charlene Y. Taylor, PhD

As the COVID-19 pandemic has swept the nation, the context of justice practices—like everything else—has changed dramatically. Court proceedings are being postponed or conducted remotely, jails and prisons are making decisions about releasing residents, and community supervision populations are growing.

Because most state governments have responded to this public health crisis by issuing shelter-in-place orders or curfews, with criminal sanctions attached to enforce them, a new band of fees and fines has become part of the justice landscape. These sanctions include fines varying from a few hundred to tens of thousands of dollars and possible jail time.¹

Justice fees and fines have been a key area of justice reform in recent years. Fees and fines (also called “legal financial obligations” or LFOs) have been criticized as both predatory and discriminatory and have been shown to have a much greater negative impact on families and communities of color.² Evaluations of LFOs have found them to be ineffective as a source of revenue for jurisdictions, in part because a large proportion of LFOs go unpaid while jurisdictions spend a great deal of money and staff resources on collection activities that yield little return.³

Recent reform efforts have focused on eliminating secondary consequences (like driver’s license suspension) of unpaid LFOs, drastically reducing or eliminating LFOs altogether, and reducing the use of monetary bail while encouraging jurisdictions to find alternative funding streams for daily operations. These reforms have gathered momentum in recent years, with significant changes happening across the country.⁴

In the weeks since shelter-in-place orders have been implemented, there is already evidence of increased criminal consequences in the form of fees and fines. In some places, police are using their authority to cite and fine individuals in violation of the orders, and in others, officers are employing their discretion to break up gatherings.^{5, 6} Shelter-in-place orders thus may further exacerbate the disparate impact of LFOs on low-income communities and families and/or communities and families of color.

Maintaining the Momentum

The COVID-19 pandemic provides an opportunity to try new and different approaches that do not force low-income people and people of color further into debt. Agencies have options to preserve public health and limit the spread of the virus that do not create new LFOs or exacerbate challenges presented by existing LFOs. Jurisdictions should consider the following alternatives to LFOs.

Expanding Pretrial Release/Removing Monetary Bail
One of the easiest things to address is removing monetary bail, which would eliminate this financial obligation from those who are arrested and reduce the size of the incarcerated population. An abundance of research highlights the negative impact of monetary bail on poor people and people of color.⁷ These individuals are more likely to be held on high monetary bail and be affected by the cascade of negative consequences that happen when bail cannot be met (e.g., job loss, economic and housing instability).

The pandemic provides an opportune time to reduce or eliminate the use of money bail across the country. California has reduced bail to zero for many offenses, and several other states (Massachusetts, New Jersey, and Michigan, among others) have reduced or eliminated bail for certain offenses or for individuals fitting specific criteria. Presumptively, this has led to the release of hundreds of jail inmates.⁸ These efforts begin to level the playing field in terms of the monetary impact of justice involvement.

Reducing the jail population also protects public health by decreasing the jail population and curbing the opportunity for the virus to spread. Reducing jail populations has the potential to save tens of thousands of lives, based on projections by several universities and the ACLU.⁹

Removing Existing LFOs and Halting Collections
While the justice system must continue operations during the pandemic, courts should consider limiting or eliminating the imposition of fees and fines associated with new criminal charges. Doing so would have a double benefit: It would reduce the economic impact of the pandemic as well as the associated recession that the nation is facing. Likewise, agencies should consider halting the collection of existing fees and fines for individuals already on probation and parole and make sure that, during this time, no new monetary obligations are added. Several states (Lousiana, Illinois, Oklahoma, and Maine, among others) have instituted such policies with the aim of reducing the disparate impact of monetary obligations on lower-income individuals who are likely to already be suffering disproportionately from the economic impact of business closures and unemployment.¹⁰

Tracking the Impact of LFOs
Finally, jurisdictions should pay attention to how shelter-in-place orders are being enforced and track who is being arrested and/or fined to examine the data for disproportionalities based on race, income, and location. Agencies should analyze these data in real time to produce a picture of the current impact.

NCCD’s Data for Equity™ model is one mechanism for this kind of monitoring and analysis. By analyzing data in real time, it provides the opportunity for jurisdictions to change practices and policies in order to produce more equitable outcomes. While much research will no doubt be conducted retrospectively when the pandemic is over, analysis “after the fact” does not allow agencies the agility to make changes when they would have the greatest impact.

It is well established that fees and fines are problematic within the administration of justice, and that this pandemic will intensify disparate consequences of all types on communities of color and low-income communities. It is critical for the field to ensure that these circumstances do not serve to further deepen the inequities that already exist within the justice system. Moreover, it is important that we do not lose the traction gained thus far in reforming the fee and fines system to be more equitable.

If you are interested in NCCD assisting your agency in evaluating the use and impact of LFOs in your jurisdiction, please contact Dr. Charlene Taylor.
 

   Charlene Y. Taylor, PhD, is an NCCD senior researcher.

¹ Mazziotta, J. (2020, April 3). From a $25,000 fine to a warning: here’s how states are enforcing coronavirus stay-at-home orders. People. https://www.yahoo.com/entertainment/250-000-fine-warning-states-215151446.html

² US Commission on Civil Rights. (2017, September). Targeted fines and fees against communities of color. https://www.usccr.gov/pubs/2017/Statutory_Enforcement_Report2017.pdf

³ Menendez, M., and Eisen, L. B. (2019, November 21). The steep costs of criminal justice fees and fines: executive summary. Brennan Center for Justice. https://www.brennancenter.org/our-work/research-reports/steep-costs-criminal-justice-fees-and-fines

⁴ Clearinghouse. (n.d.) Fines and Fees Justice Center. https://finesandfeesjusticecenter.org/clearinghouse/?sortByDate=true

⁵ Moshtaghian, A., and Croft, J. (2020, April 12). That’s an expensive round of ‘essential drinks.’ Seven people fined $1,000 each for violating stay-at-home order. CNN. https://www.cnn.com/2020/04/12/us/santa-cruz-fine-drinks-stay-home-order-trnd/index.html

⁶ Castor, R. (2020, April 14). Police break up large Easter party in Florida due to coronavirus safety guidelines. 3WEARTV. https://weartv.com/news/coronavirus/police-break-up-large-easter-party-in-pensacola-due-to-coronavirus-safety-guidelines

⁷ Menendez, M., Crowley, M. F., Eisen, L. B., and Atchison, N. (2019, November 21). The steep costs of criminal justice fees and fines: a fiscal analysis of three states and ten counties. Brennan Center for Justice. https://www.brennancenter.org/sites/default/files/2019-11/2019_10_Fees%26Fines_Final5.pdf

⁸ Martinez, T. (2020, April 6). California sets zero bail for many offenses. NBC Palm Springs. https://nbcpalmsprings.com/2020/04/06/california-sets-zero-bail-for-many-offenses/

⁹ ACLU. (2020). COVID-19 Model finds nearly 100,000 more deaths than current estimates, due to failures to reduce jails. https://www.aclu.org/report/flattening-curve-why-reducing-jail-populations-key-beating-covid-19?redirect=covidinjails

¹⁰ Brennan Center for Justice. (2020, April 27). Easing the burden of fees and fines during COVID-19. https://www.brennancenter.org/our-work/research-reports/easing-burden-fees-and-fines-during-covid-19