Regulatory Breach

“The unfettered imposition of fines and fees across the country has entrapped poor people, too many of whom are people of color, in a cycle of escalating debt, unnecessary incarceration and debilitating entanglement in our justice system,” Kristen Clarke, the assistant attorney general of the Justice Department’s civil-rights division, said in a statement about the April 20 letter. “By confronting the harms that can result from aggressive imposition of fines and fees, we can bring an end to debtors’ prisons and promote equal justice under law for all.”

Courts should review their local rules and procedures to ensure they’re constitutional and promote “sound public policy,” for example, and determine whether defendants have the ability to cover costs or whether any nonpayment is “willful” before moving to incarceration, according to the letter.

Courts should also consider alternatives to punishing people for nonpayment of fines and fees more generally, like amnesty periods or penalty-free payment plans, the Justice Department said.

“The Justice Department stands ready to help courts and juvenile justice agencies put in place reforms and practices that address public safety needs while protecting civil and constitutional rights,” Clarke said.

The Justice Department’s “Dear Colleague” letter last week served as an update to a similar plea the agency issued in 2016 under the Obama administration, a year after federal investigators said in a report that policing practices in Ferguson, Mo., had been “shaped by the city’s focus on revenue rather than by public safety needs,” including through traffic stops that often wound up saddling Black drivers with citations and fines.

That report, which followed the 2014 police shooting of Michael Brown in the same city, drew new attention to the consequences of fines and fees. But both the original 2016 letter and a separate advisory regarding the costs assessed against youth in the juvenile justice system were rescinded under the Trump administration.

This time around, the Justice Department similarly used its letter to outline a series of fines-and-fees practices that could be considered unconstitutional — including excessive fines that don’t fit the crime — but also noted many jurisdictions are taking “innovative approaches to reduce their reliance” on such costs.

While the Justice Department didn’t mention jurisdictions by name, Oregon’s governor forgave more than $1.8 million in uncollected traffic fines in December, allowing 7,000 people to seek reinstatement of the driver’s licenses they’d lost solely for not paying years-old citations. New Mexico, meanwhile, has eliminated certain fees entirely.

“All across the country, impacted communities, activists, and advocates have been challenging the fines and fees imposed in the criminal legal system and urging policy makers to enact reform,” Joanna Weiss and Lisa Foster, co-executive directors of the Fines and Fees Justice Center, an advocacy group, said in a statement last week. “The Department of Justice’s voice has been missing from this ongoing conversation, but today’s letter puts state and local courts on notice that they need to end unconstitutional and illegal practices, and that the Justice Department is watching.”

As for fines and fees imposed against children in the juvenile justice system, the Justice Department noted such costs often wind up punishing their entire families: Many minors are too young to work or have too many restrictions on employment to meet payment requirements, leading them to lean on relatives for help. 

“Fines and fees disproportionately harm Black people and other people of color, who are overrepresented in the criminal legal system and may already face economic obstacles arising from discrimination and systemic inequities,” Janai Nelson, the president and director-counsel of the NAACP Legal Defense Fund, said in an April 20 statement.

“In practice, fines and fees act as another form of wealth extraction from communities of color,” Nelson added. “When these penalties are levied on people who are too poor to pay, they can also trigger severe consequences, including additional incarceration. These fines and fees are particularly unjust when applied to youth, burdening their families and often triggering escalating consequences that follow them into adulthood.”

In a statement about the letter last week, the Justice Department said the Bureau of Justice Assistance will soon “release a solicitation seeking a training and technical assistance provider” that could work with jurisdictions interested in overhauling their fines-and-fees practices.