State and local courts sentence millions of Americans to pay fines every year as punishment for an extraordinary range of offenses. Too often, they sentence struggling people to pay amounts they simply cannot afford and then punish them again for “failing” to come up with the money. Monetary sanctions are a necessary accountability tool, but in the United States they are so widely misused and abused that they effectively criminalize poverty.
We owe this ugly reality to a mix of bad policy choices and cruelty. The same monetary sanction that inconveniences an affluent person can prevent a poor family from paying the rent—but fines are usually set without regard to a person’s financial situation. When people can’t pay, courts often treat them as though they refused to pay—and the penalties are steep. People who don’t pay what they owe face incarceration, suspension of their drivers’ licenses—even the loss of their right to vote. All of this misery falls disproportionately on people who are already struggling to make ends meet.
Compounding this cruelty still further, jurisdictions across the United States increasingly charge exorbitant fees that try to shift court costs away from taxpayers and onto the people who “use” the courts. Politically expedient for lawmakers, these user fees are devastating for many litigants. People who might already struggle to pay the fines they are sentenced to as punishment are required to pay for the costs of their own prosecution, their own court-ordered drug treatment, their own probation supervision—even their own incarceration. What’s more, many courts face tremendous pressure to raise revenue for local authorities by collecting fines and fees. That creates a very real perverse incentive to focus on extracting money rather than doing justice.
Reformers and activists are increasingly focused on addressing these abuses. Campaigners around the country are fighting—and often winning—important battles. The task is complicated, however, by just how fragmented and diverse the policy landscape is around these issues. The day-to-day grind of repressive fines and fees policies unfolds at the state, county and municipal levels. Practices vary widely across and within states. States also differ considerably in the degree to which they constrain the powers of local courts, or let them chart their own course.
Until now, we have not had a consistent snapshot of where all of the states stand on key fines and fees questions. NCAJ’s fines and fees indexing project is an effort to shed light on that complex empirical picture, and to measure the laws and policies of every US state against a set of principled policy benchmarks we think all of them should strive for.
NCAJ has identified a set of 17 policies we believe every state should have in place to rein in these abuses. These policies represent our vision of a minimally adequate, rights-respecting approach to monetary sanctions. They are grouped loosely into five issue areas:
- Abolition of harmful practices, like the imposition of predatory “user fees.”
- Steps to ensure that fines are cognizant of what a person can actually afford to pay.
- Elimination of unreasonably punitive collateral consequences for non-payment of fines, like suspending drivers licenses and voting rights.
- Data collection and transparency, so policymakers and the public know what the human impact of fines and fees policies looks like and who shoulders most of that burden.
- Mitigation of the impact of fines and fees in light of the economic harm so many families have suffered due to the COVID-19 pandemic.
We researched the laws and policies of every US state to determine whether they have these policies in place. We use that information to give each state a score on a scale of 0-100 that reflects its overall performance. The policy benchmarks are weighted according to their relative importance. A state that met all of our policy benchmarks would earn a score of 100; a state that met none of them would earn a score of 0.
In assessing state performance, we went to great lengths to acknowledge and credit good practice, even where it falls short our 17 benchmarks. In most cases, we gave states partial credit for a number of different policy approaches that represent progress relative to the dismal norms that prevail in many jurisdictions. Even so, the results are strikingly bad. No state performs well. What's more, even when a state has the right policies on the books, it may not be implemented properly. The road ahead is a long one.
There is one very important point of optimism in our findings, however. Fourteen of our 17 benchmarks have been adopted, in the real world, by at least one state. Several have been adopted by many different states. And several states have at least taken tentative steps in the direction of the other three.” This means that the good policy practices we are looking for do not need to be invented out of whole cloth. Every state could arrive at a much better and more rights-respecting approach to fines and fees simply by emulating policies other states already have in place.
Read on for a summary of our approach to assessing state policy, and a succinct analysis of our findings. You can explore our findings in detail using our data visualizations, here. For detailed information about our policy benchmarks, our reasons for choosing them, and the approach we took in identifying them, read our comprehensive project overview. Finally, a press release summarizing the project can be found here.
Detailed Project Overview
A Rights-Respecting Approach to Fines and Fees
The goal of our fines and fees project is to examine whether states respect the rights of litigants whenever courts consider imposing monetary sanctions, whenever they actually impose monetary sanction, and whenever they consider the situation of a person who has not paid the fines they were sentenced to.
We did not seek to interrogate whether states make the right decisions about what conduct to punish in the first place, or what kind of conduct is appropriately punished with monetary sanctions. Nor did we interrogate the degree to which states actually respect their own laws and policies—our inquiry looked to the existence of good legal norms, as distinct from their implementation.
With this larger goal in mind, we set out to identify the core elements of a rights-respecting approach to monetary sanctions. In close consultation with leading experts, we sought to identify benchmarks that were a strong answer to our current reality of pervasive abuses— but also pragmatic in the sense that any state could be reasonably expected to achieve them.
Our work was guided by the following core principles:
- States may use fines as an appropriate punishment for violations of law, so long as they are proportionate to the severity of the offense, and defined with reference to what an individual can afford to pay without undue hardship.
- States should ensure that fines imposed as punishment for any violation of law are tailored to reflect what a person can afford to pay.
- States should ensure that fines are not used to shift the costs of the justice system away from government and onto the shoulders of individuals in conflict with the law, and should abolish fees as a predatory alternative to taxation across the board.
- States should ensure that courts take a rigorous and proactive approach to ensuring that no person is incarcerated or otherwise punished for “failing” to pay fines and fees that they are unable to afford to pay without undue hardship.
- States should not impose unreasonably harsh collateral consequences, such as the suspension of voting rights or of driver’s licenses, on people with unpaid fines and fees.
- States should make rigorous efforts to collect key data on the imposition and human impact of fines and fees, and make that data publicly available.
In the end, we settled on 17 distinct policy benchmarks informed by those principles. These benchmarks can be grouped loosely into five different areas of focus:
- Abolition of harmful practices;
- Meaningful consideration of ability to pay;
- Abolition of abusive collateral consequences for nonpayment;
- Data transparency; and
- COVID-related mitigation efforts.
The elements of this policy framework are summarized below. You can find a detailed explanation of the process we used to identify these benchmarks—and a much more detailed discussion of the rationale for each of them—in the appendices to this paper.
Abolition of Harmful Practices
Some state policies around monetary sanctions are inherently abusive. The following practices need to be abolished and not reformed:
- Fees, Costs, surcharges and assessments. Fees are distinct from the fines imposed as punishment. They are imposed to force people to pay for the supposed costs of their encounters with the justice system. We believe that the costs of the justice system should be borne by taxpayers. What’s worse, fees are often used— quite brazenly— as a way to raise money to bolster county and municipal budgets. Fees often balloon to exorbitant amounts, and put courts in the unsavory business of extracting wealth from the poor in order to fund the government.
- Fines in juvenile cases. In juvenile court cases, monetary sanctions are not a viable accountability mechanism. Instead, they punish families for the conduct of their children. Not only is this unjust, but juvenile fines and fees can disrupt families’ economic stability or push them deeper into poverty. This can make it even harder for parents to address the factors that put their children into conflict with the law to begin with.
- Conflicts of interest. Too many jurisdictions explicitly tie court and law enforcement budgets to fines and fees revenue. It creates a pernicious conflict of interest when judges, prosecutors and police officials know that their own budgets depend on extracting revenue from offenders. These functions should be funded from general public revenues, so that court and law enforcement officials can focus on doing justice and not extracting money they need for themselves.
- Private debt collection. Many states and localities contract with private debt collectors to pursue unpaid fines and fees debt. Officials typically pay debt collectors the same way private creditors do-- on a contingency basis that incentivizes abusive, strong-arm collections tactics. Making matters worse, officials tack on additional fees that force struggling people to pay for the services of the collectors who are sent out to pursue them. While some jurisdictions take steps to mitigate abuse, NCAJ believes that the business practices of private collectors are fundamentally incompatible with the mission of the courts.
Ability to Pay
Fines should be set in a way that is cognizant of a person’s ability to pay. Instead, state and local governments typically assess fines without regard to what the individual before them can actually afford. The result is a system that punishes the poor far more harshly than the rich, for the same offenses. We argue that states should take the following steps to ensure that fines are tailored to reflect each individual’s financial situation:
- States should require ability to pay determinations at sentencing. Often, courts will inquire about a person’s ability to pay only when they are at the point of possible incarceration because they have fallen behind on payments. Instead, courts should assess ability to pay when fines are first imposed, so that it is possible for these to be adjusted in line with a person’s financial situation.
- To make ability to pay determinations fair, states should codify concrete standards to govern them, as well as circumstances that should give rise to a rebuttable presumption that a person is indigent and cannot afford to pay any amount of fines and fees.
- To make ability to pay determinations meaningful, states should ensure that judges have discretion to waive, convert or modify any and all fines and fees obligations according to ability to pay. People should also have the right to pay fines on an extended payment plan instead of all at once up front.
- States should require proof that failure to pay is willful. It is unconstitutional for a court to imprison someone for failing to pay a fine because they could not afford it. However, many courts put the burden on the person who couldn’t pay to assert and prove that their failure to do so was not “willful.” Instead, the burden should be on prosecutors to prove that it was. People who face possible sanctions for failure to pay should be entitled to counsel.
- States should experiment with day fines. In a “day fines” model, fines are assessed as a proportion of a person’s income instead of as a flat amount. This helps ensure that people experience the same level of punishment regardless of income. This model, widely used in Europe and in some Latin American countries, should be tested more widely in the United States.
Too often, states mete out unreasonably harsh follow-on punishments to people who fail to pay fines and fees. We believe all states should eliminate the three most egregious of these:
- Suspension of voting rights. Most states bar incarcerated people from voting. Many states go one step further and refuse to restore those rights to people who have served their time if they still owe fines and fees to the state. The state’s interest in collecting money from formerly incarcerated people is nowhere near serious enough to justify this use of disenfranchisement as a cudgel. What’s more, these restrictions have a tremendous disparate impact along racial lines—which is in fact part of their perverse political appeal.
- Suspension of driver’s licenses. Many states suspend the driver’s licenses of people who fail to pay fines and fees debt. This causes tremendous hardship to many people, who cannot realistically work or take care of their families without driving. The point of this sanction is precisely to use that pain to coerce people to pay what they owe. The punishment is not only wildly disproportionate but also counterproductive— by making it impossible for people to work, license suspensions make it impossible for them to pay, and also – if they risk driving without a license -- put them at risk of re-arrest, new fines, and new fees.
- Denial of record expungement. Expungement can help people put their life in order, find work and live without fear of discrimination. Many states deny access to expungement until outstanding fines and fees are paid. This effectively denies it to many low-income people—while also making it harder for them to establish the kind of financial stability that would make payment more feasible.
States can’t know whether their use of monetary sanctions is fair unless they collect data on who is impacted by them and how. States should collect—and publish—data on:
- The amounts of fines and fees assessed and actually collected;
- The number of people incarcerated for failure to pay; and
- The racial and demographic makeup of people sentenced to pay fines and fees.
The COVID-19 pandemic has plunged many families into economic hardship. Every state should enact temporary measures that help mitigate the impact of fines and fees debt on already-struggling families. These can include suspension of collection efforts, moratoriums on certain fines and fees, or other forms of relief.
Scoring State Performance
Using the policy framework described above, we created 17 benchmarks. Each represents a key policy that we think every US state can and should have in place.
Not all of the policy benchmarks are of equal importance— restoring the voting rights of people who struggle to pay fines and fees debt is more important than launching limited experiments with day fines, for example. To capture that reality, we use a weighting system that assigns different point values to each benchmark. These range from 3 to 10, and add up to a total possible score of 100.
We recognize that, quite often, there is considerable and important variation among states that do not meet a particular benchmark. Many have adopted related policy approaches that warrant positive recognition even though they fall short of our ideal, benchmarked policies. To capture this reality, we identified secondary benchmarks—43 in all—that we treat as “second best” alternatives to our 17 primary benchmarks. A state that fails to meet a primary benchmark might nonetheless score a few points for having a “second best” alternative policy in place. In this way we are able to inject an important level of nuance into our assessment of state laws and policies.
With this framework in place, we researched the laws and policies of every US state to determine whether they had each of our 17 benchmark policies in place. Where a state did not meet a primary benchmark, we then also determined whether it met any associated secondary benchmarks. Using that information, we assigned every US state a score on a scale of 0-100. A state that had all 17 of our primary benchmark policies in place would receive a score of 100.
Our Findings—How the States Measure Up
Our complete findings are accessible on the NCAJ website, where we present maps that show how every state performs overall and on each individual policy benchmark. We also present graphics that illustrate how the states rank relative to one another, from highest to lowest, and which benchmarks are most- and least-widely adopted. Those visualizations also include citations that reference and describe the relevant state laws, court rules and other policies.
The best way to explore and understand our findings is to use the visualizations. Here, we offer some brief, overall reflections on those findings and what we think they signify.
To start with, it has to be said that the overall findings are grim. No state performs well. As of March 2021, the highest-scoring state is Washington with a score of just 54 out of 100. The lowest performing states have virtually no meaningful policies in place to safeguard the rights of litigants in fines and fees cases. This is in some sense unsurprising given what we know about the pervasive abuses associated with fines across America. Still, it is jarring to see states fall so far short against deliberately pragmatic and achievable policy goals. The road ahead is a long one.
Greatly compounding this bleak picture, is the fact that good laws and policies are not always respected on the ground. Too often, courts and other authorities ignore key safeguards or fail to implement good policies properly. That is to say, the decidedly poor state performance captured in our index actually overstates their degree of real-world accomplishment.
With that said, our findings also offer reason for optimism. Fourteen of our 17 benchmarks have been adopted, in the real world, by at least one state. Several have been adopted by many different states. And several states have at least taken tentative steps in the direction of the other three. What this means is that the good laws and policies we are looking for do not need to be invented out of whole cloth.
Every state could arrive at a much better and more rights-respecting approach to fines and fees simply by emulating policies other states already have in place. In fact, one could arrive at an overall fines and fees score of 86 out of 100—considerably better than the real-world top score of just 54— by cobbling together good policies that already exist in one or more states. One way to get that result would be to emulate policies that are already on the books in a politically diverse collection of just seven states: Utah, New York, Oklahoma, Washington, California, New Jersey and Rhode Island.
Another reason for optimism is that many of the good policies now in place have been adopted by states fairly recently. In many parts of the country, the narrative is one of progress. Slow and inadequate progress, but progress nonetheless.
Our research points to other interesting and important findings that bear further analysis. For example, there does not appear to be any clear correlation between political party dominance and overall score. Nor does there seem to be any clear correlation between party affiliation and state performance on particular benchmarks. For example, during the 2020 Presidential election the practice of disenfranchising people because of outstanding fines and fees debt was widely associated with the Republican party. This was mostly because of the party’s tenacious efforts to uphold that practice—and thereby suppress Black votes—in Florida. But nearly half of all states restrict voting rights because of unpaid fines and fees and many of them are strongly Democratic—including President Biden’s home state of Delaware.
NCAJ will dive deeper into these findings to analyze correlations and trends, and produce new insights in the months ahead. We hope others will do the same. Above all, we hope that our findings will prove useful to people fighting for change—and a measure of recognition to states that are at least taking steps in the right direction.