Justice department reminds state and local courts of constitutional obligations regarding fines and fees

The U.S. Department of Justice recently expressed concern about the unjust imposition of fines and fees by state and local courts in violation of the civil rights of those accused of crime, quasi-criminal ordinance violations, and civil infractions.

The DOJ stated that the imposition and enforcement of fines and fees on those who cannot afford them may cause escalating debt that “far too often traps individuals and their families in a cycle of poverty and punishment that can be nearly impossible to escape.”

The agency pointed to other “profound harm” that fines and fees may cause to those who cannot afford them: incarceration for nonpayment; extension of probation and parole; and loss of a driver’s license, employment, right to vote, or even a home. These negative effects often apply disproportionately to people of color and low-income communities, said the agency.

The agency also reminded judges and stakeholders to provide meaningful court access for those with limited English proficiency.

The DOJ discussed its concerns about fines and fees in a “Dear Colleague” letter issued April 20 to state and local judges and other justice-system stakeholders.

The DOJ reminded judges of several constitutional principles relating to fines and fees, including:

• The prohibition of fines and fees disproportionate to an offense.
• The prohibition of jailing someone for nonpayment without a prior determination that the person is able to pay and intentionally not paying.
• The requirement that judges consider alternatives before incarcerating individuals for nonpayment of fines and fees.
• The prohibition of requiring payment of fees to access judicial processes.
• The requirement of proper notice when imposing and enforcing fines and fees.
• The prohibition of fines and fees imposed in a way that intentionally discriminates against a protected class.

​The agency recommended assessment of each individual before imposition of monetary penalties, as “fines and fees will affect individuals differently depending on their resources.”

Imposing fines and fees on youth is especially concerning and may be excessive and unreasonable, the DOJ said. Many minors “are too young to legally work, are of compulsory school age or full-time students, have great difficulty obtaining employment due to having a juvenile or criminal record, or simply do not yet have employable skills typically expected of adults.” Judges should presume that youth are unable to pay fines and fees, the DOJ said.

The DOJ urged judges and other justice-system stakeholders not to use fines and fees as a means to raise government revenue, divorced from the purpose of punishment.

The DOJ pointed to Supreme Court case law indicating that courts “have an affirmative duty to determine an individual’s ability to pay and whether any nonpayment was willful before imposing incarceration as a consequence,” even when a defendant does not raise the issue.

State and municipal courts must consider alternatives to incarceration for nonpayment, and should consider alternatives to other serious consequences such as drivers’ license suspensions as well, the DOJ said. As alternatives, the DOJ suggested penalty-free payment plans and amnesty periods during which warrants are canceled or fees waived.

The DOJ also suggested alternatives to fines and fees as sentences in the first place. Attendance at a traffic safety class or community service could replace the fines and fees, the DOJ said.

The agency recommended that courts and other justice-system officials assess whether their penalties for nonpayment of fines and fees disproportionately affect certain groups. The agency pointed in particular to the suspension of drivers’ licenses for failure to pay, which may disproportionately affect people of color.

The DOJ discussed statutory requirements for courts that receive federal funding to provide language assistance for limited English proficient (LEP) individuals regarding imposition and collection of fines and fees. “Such assistance includes, but is not limited to, ensuring that court users with LEP have competent interpreting and translation services during all related hearings, trials, and motions, provided at no cost,” the DOJ wrote.

The agency said its Office for Access to Justice would follow up with a guide including best-practice examples from states and municipalities, and its Office of Justice Programs would seek a provider for training assistance for jurisdictions wishing to examine their fines and fees policies and practices.

The DOJ defined “fines” as monetary punishments for infractions and “fees” as required payments that go toward activities unrelated to the conviction or punishment.