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Paper: Justice fines and fees violate Constitution

The use of fines and fees to generate revenue for local justice systems constitutes a “predatory” relationship between law enforcement and citizens that violates the due process protections of the Constitution, according to a Tennessee Law Review paper.

“Thousands of individuals have suffered a loss of liberty and opportunity by virtue of draconian laws that ultimately punish people for their poverty,” write the paper’s authors, Glenn Harlan Reynolds and Penny White from the University of Tennessee College of Law.

“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.”

Systems across the United States are dependent on these largely unlawful monetary collections, the authors write, adding that the revenue-generation strategy often becomes the chief driver of a government’s criminal justice priorities.

As one of the most notorious examples, the authors cited a Department of Justice study of the 2014 protests in Ferguson Mo., sparked by the police killing of Michael Brown, which found simmering anger among the population over escalating fines imposed by law enforcement which effectively were used to finance municipal operations.

The DOJ investigation found that city officials focused on  “revenue over public safety, leading to court practices that violate the 14th Amendment’s due process and equal protection requirements.”

The probe also found:

Court practices exacerbating the harm of Ferguson’s unconstitutional police practices and imposing particular hardship upon Ferguson’s most vulnerable residents, especially upon those living in or near poverty. Minor offenses can generate crippling debts, result in jail time because of an inability to pay and result in the loss of a driver’s license, employment, or housing.

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Many of these policies — like increasing the amount of tickets issued by officers — were designed to generate more revenue for the police department and thus, line the pockets of the rank and file, the Tennessee paper said.

This happened often, the DOJ discovered, where, for example, of someone was charged with driving under the influence, the officer would also cite them for something like speeding, not remaining in the lane, littering, or having no seatbelt; all to generate more revenue.

The number of traffic cases ballooned — beginning from 24,000 traffic-related citations at the end of 2014, and resulting in 53,000 traffic-related citations five years later.

This was a huge revenue money-making venture that the police department kept up as a way to continue making a profit off of the people indebted to the system — and even making people system-involved.

“The year that Michael Brown was killed, over 16,000 arrest warrants for nonpayment of fines, fees, and costs were outstanding, awaiting service on the indebted individual, who would then be brought to court and required to either make bond or remain jailed until fines and costs were paid,” the authors wrote.

“As found by the DOJ, the Ferguson Municipal Court used ‘arrest warrants and the threat of arrest as its primary tool for collecting outstanding fines for municipal code violations.’”

Supreme Court rulings

The authors said courts had long since underlined the Constitutional threat posed by these practices.

As early as 1927, a Supreme Court cases, Tumey v. Ohio highlighted the relationship between conflicts of interest and due process rights in the context of adjudication.

In Tumey, the fines awarded in the possession of illegal alcoholic beverages case was split among the arresting officers, prosecuting attorney, mayor, and a town’s treasury — which funded the mayor and judge’s salary supplemented. According to the Supreme Court, due process was violated because the judge and the mayor both had “direct” and “personal” interest in reaching the conclusion of the case — essentially showing that the entire system has a financial incentive to convict.

Looked at another way, the total revenue from fines and fees resulted in more than half of the town’s $47,000 yearly income.

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“There is more than a whiff of suspicion in the opinion regarding the financial incentives provided to other players, and in fact to the entire justice system, to pursue conviction for purely financial reasons,” the paper authors conclude regarding Turney.

Nearly 50 years later, in the 1972 case of Ward v. Monroeville the Court applied the Tumey principle when ruling that a district court had too much of an “institutional interest” in revenues flowing to the Judicial Expense Fund, over which ‘the Judge exercises total control.’”

The authors argue that the two ruling should make it clear that authorities need to rethink how the justice system depends on fines and fees to survive.

Solutions to break the mold

“While the system as it operates may not directly place money in [the judiciary employee’s] pockets, it is nonetheless the case that their families, their livelihood, and their day-to-day quality of life are strongly impacted by the system’s extraction of fines, fees, and forfeiture revenues from the people who come before them,” the authors write.

They suggest that on the smallest scale, appellate courts should be more willing to police excessive fines and fees, which is already prohibited by the U.S. constitution.

Moreover, other reforms include not always imposing a fine just because the offense provides for a fine, and not having a “one fine fits all” approach to punishment. Alternatively, a trained member of the court staff should determine how much an individual is able to pay, and the method of payment.

On the larger-scale level, the authors suggest the courts should be fully funded from state revenues, not from court-produced fines and fees.

The authors recommend establishing a requirement that income from judicial proceedings be deposited in a state’s general fund rather than “redounding to the profit of courts and law enforcement could be instituted either legislatively or judicially.”

“It is past time to rethink America’s criminal justice system,” the authors conclude.

“We must remove the taint that adheres when courts depend on fines, fees, and forfeitures to operate, and we must end the criminalization of poverty.

“Justice requires it.”

This report was first published by The Crime Report.


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