Brooke Bergen spent almost a year in the Dent County Jail in Missouri for stealing an $8 tube of mascara from Walmart. At the end, she owed $15,900 in fines and fees, primarily for what’s known as “pay-to-stay”—the fees many states charge per night in jail. Ms. Bergen had never held more than a minimum wage job, and certainly did not have enough savings to pay up front. So she had to go to court monthly for hearings on the fines and fees, spending half a day there for each appearance. There was no official payment plan in place, but each month Ms. Bergen would have to pay what she could scrounge together. If she did not appear or had no money that month, the judge could return her to jail (and often did, with other litigants, too), where she would incur more debt. If she managed to pay $100 per month—no small feat on a minimum wage salary—it would still take her more than 13 years to pay off the debt—all for $8 of shoplifting.
Ms. Bergen’s story is unusual because it appeared in a Pulitzer Prize-winning series in the St. Louis Post-Dispatch, but high fines and fees for even minor scrapes with the law are anything but unusual. State and local governments impose fines as punishment for everything from traffic and municipal code violations to felonies. On top of fines, they add fees whose purpose is to fund law enforcement, the court system, and other government operations.
The most direct way to address the harms is to abolish fees and to right-size fines. Momentum is building to end court fees and, also, juvenile court fines. But, recognizing that even if these efforts ultimately succeed, adults will still face fines—and in many places ending fees may take years—NCAJ set out to locate examples of state laws and practices for determining ability to pay and reducing fines and fees accordingly.
While no state does this well, in our April 24, 2024 report Ability to Pay: Closing the Access to Justice Gap with Policy Solutions for Unaffordable Fines and Fees, we gathered 10 top policy models, accompanied by specific examples of state laws and practices. See these top policy models, below, and check out the report and table for the NCAJ’s analysis and examples):
- Courts Have the Power to Waive or Reduce All Fines and Fees.
A threshold question for every state is whether its judges have the basic authority to waive or modify all fines and fees. Without that, even if judges waive discretionary fines and fees, the charges that are mandatory continue to trap people in cycles of debt and incarceration...read in report - Courts Have the Duty to Make Ability to Pay Determinations at Critical Times.
There are at least four critical moments when judges must determine ability to pay: (1) before imposing fines and fees; (2) upon request at any time; (3) after incarceration; and (4) before imposing sanctions for the failure to pay...read in report - Procedural Protections Promote Fair Ability to Pay Determinations.
Procedural protections—such as requiring judges to hear key evidence, putting findings on the record, and providing counsel—are essential to ensuring that any time judges make an ability to pay determination, they consider the person’s individual circumstances...read in report - Waiver is Ordered for People who are Determined Indigent.
A bright line income standard defines indigency, and there is a presumption of indigency for people on public assistance (or people receiving other public benefits, or in equivalent situations), as a means of promoting justice and as a shortcut for determining when to order a waiver...read in report - Statutory Guidelines Help Judges Determine How Much a Person Can Afford to Pay.
Guidelines can help to standardize decisions across judges, courts, and locales. In Oklahoma, guidelines direct judges to treat as unavailable any money that is essential for the person’s or family’s needs (including public benefits, child support payments, or bankruptcy-exempt assets ). In Illinois, guidelines direct judges to reduce fines and fees by pre-set percentages that are pegged to income levels above the federal poverty line...read in report - State-Created Tools Help Judges Determine Ability to Pay.
Online calculators, bench cards, and other official tools exist in growing number and are helping judges to determine amounts of fines and fees based on a person’s ability to pay...read in report - Practitioners’ Tools that Illuminate Ability to Pay.
In some states, practitioners are leading the way with software applications and other new approaches for determining ability to pay. In Iowa, a legal aid lawyer created abilitytopay.org, an online calculator that auto-populates with IRS data showing the average cost of living expenses in every county. In Oklahoma, a legal aid lawyer’s questionnaire helps to show hardship not by examining a dollar amount, but by gathering stories about how the person tries to make ends meet...read in report - Day Fines.
Fines that expand or contract based on the severity of the offense and the person’s income can help to increase fairness. In Europe and South America, “day fines” laws set fines by multiplying the number of days assigned to a particular offense by the person’s daily income, imposing a final sum that is higher for a person with means than for a person surviving paycheck to paycheck...read in report - Community Service, Education and Activities Offer Alternatives to Payment.
Some states are usefully offering community service as an alternative to paying fines and fees. But, courts sometimes disregard financial circumstances that would justify a waiver or reduction, overlook broader opportunities for service, or deny fair compensation for service. In response, some states are authorizing full waiver where service would impose “undue hardship,” authorizing a broader range of service, and either capping hours of service or paying higher rates for service...read in report - Partial Payment Plans as an Alternative to Full Payment.
Payment plans can provide a constructive alternative to demanding payment of unaffordable fines and fees in full up front. To prevent undue hardship, it is important to cap the monthly amounts due, and require that judges conduct an ability to pay determination before setting the total amount so that payment plans do not take many years — or decades — to pay off...read in report
