Earlier this week, the United States Department of Justice released a scathing report on police and court practices in Ferguson, Missouri. Figuring prominently in the DOJ’s criticisms, Ferguson criminal-justice officials were said to be overly concerned with extracting money from defendants. For instance, the DOJ charges:
Ferguson has allowed its focus on revenue generation to fundamentally compromise the role of Ferguson’s municipal court. The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests. This has led to court practices that violate the Fourteenth Amendment’s due process and equal protection requirements. The court’s practices also impose unnecessary harm, overwhelmingly on African-American individuals, and run counter to public safety. (3)
I don’t know how fair these particular criticisms are, but they echo numerous other criticisms made in recent years about the increasing tendency of the American criminal-justice system to rely financially on a burgeoning array of fines, surcharges, fees, forfeitures, and the like.
Professors Wayne Logan and Ron Wright have a fine recent article on this subject, appropriately entitled “Mercenary Criminal Justice” (2014 Ill. L. Rev. 1175).
Logan and Wright explain:
While it might be easy to understand the rationale for each LFO [legal financial obligation] standing alone, taken together they often have debilitating consequences for individuals. Today, it is not uncommon for costs, fees, surcharges, and the like to exceed the amount of restitution or fines that a defendant owes in a given criminal case. Recent academic work and advocacy group studies have condemned LFOs for their economically regressive impact on poor defendants, the barriers they present to reentry, and the racial disparities they reflect.
In this Article, we consider LFOs from a different vantage point: we explore the legal and policy ramifications for government institutions (and private entities acting in tandem with them) when they can generate revenue for themselves. Today, criminal justice actors increasingly rely on the income from LFOs to fund ordinary system operations and to expand the system’s reach. When this happens, courts and other criminal justice actors become mercenaries, in effect working on commission. (1177)
Logan and Wright consider the case law on “LFOs” and find that it establishes few principled limitations.
In the absence of effective judicial oversight of LFOs, Logan and Wright urge states to establish LFO commissions in order to rationalize the creation and implementation of new financial obligations. “The commission should comprehensively review existing LFOs, approve newly proposed LFOs, and collect and publish data relevant to their legal and policy desirability.” (1215) In a state that already has a sentencing commission, Logan and Wright think that this LFO-oversight mission could simply be added to the commission’s portfolio. In other states (including Wisconsin), a new, specialized commission might be established. As an example, they cite Louisiana’s Standing Committee to Evaluate Requests for Courts Costs and Fees.
Logan and Wright focus particularly on the benefits of a state-level commission, but it seems to me that there might also be some value to having local commissions, especially in urban jurisdictions like Milwaukee with busy courts and high poverty rates. Although local officials–police, prosecutors, judges–may not be in a position to create or repeal financial impositions, they do exercise considerable discretion over who exactly pays what in practice. A local oversight body–whether a standalone commission or an arm of an existing entity such as the Milwaukee County Community Justice Council–could collect and disseminate information on the full range of financial impositions that are used in practice, how much different categories of defendants are required to pay in typical cases, whether and how ability-to-pay is taken into account in establishing financial obligations, which segments of the community bear the brunt of these obligations, how many individuals are arrested and incarcerated for failure to pay, how much money is collected, how the money is spent, whether financial incentives affect enforcement priorities, how financial obligations affect prisoner reentry, and so forth. Information about these topics might helpfully inform the way that local officials exercise their discretion. Additionally, more transparency in this area might also serve to educate the public about an increasingly important aspect of the criminal-justice system’s operations and help to establish greater accountability for truly mercenary or otherwise unfair practices. The happenstance of a highly publicized police shooting caused a light to be shone on troubling fine-collection practices in Ferguson. One wonders how many other jurisdictions are quietly carrying on with similar practices.