The New York City Bar Association is calling on state lawmakers to end a requirement that people convicted of a crime pay various court fees, saying in a new report that the fines function as a "regressive tax" that disproportionately harms low-income offenders, including those convicted of nonviolent misdemeanors.
Judges in New York used to be able to waive such costs for indigent defendants, but the state's Sentencing Reform Act, a 1995 tough-on-crime omnibus bill, included a provision that did away with judicial discretion, making the fines mandatory. Failure to pay the fines, which range from $95 for a violation to $300 for a felony, can result in a bench warrant, and can earn offenders more prison time, advocates say.
That's why the criminal justice committees of the city bar association are recommending that state lawmakers get rid of mandatory fees altogether. In their Nov. 26 report, the committees said that if the Legislature won't scrap the fines, it should consider imposing them on a sliding scale, reinstating judges’ ability to grant waivers, ending the practice of siphoning payments from inmates’ prison store funds and eliminating fees for minor violations and for juvenile offenders.
"Mandatory surcharges and fees are a fundamentally unfair burden often directly at odds with the aims of the criminal justice system — they tend to make re-entry more difficult and recidivism more likely, particularly for those whose crimes stem from poverty," the report said.
The report noted most of the fees come from nonfelonies, which comprise 84 percent of criminal cases in New York City. The vast majority of those are "quality-of-life offenses which are often themselves the results of poverty," like drug possession, driving with a suspended license or evading subway fare, according to the bar.
These costs aren't intended as a form of punishment, the report said, yet failure to pay can result in a bench warrant and prison time, or a civil judgment that affects defendants' credit scores and subjects them to debt collection.
Sarah Berger, chair of the bar association's criminal justice operations committee, said civil judgments are frequently entered "very casually against people who can't pay."
"The court system is filled with pro se motions from defendants asking for a waiver of these fees," she told Law360. "There's nothing a judge can do to grant these except in extreme cases."
These fees are viewed as essential sources of revenue nationwide, and every state except Alaska and North Dakota has hiked up its court fees in the past eight years. Increased reliance on such fees stems from the Great Recession, according to Bill Raftery, a senior analyst for the National Center for State Courts.
"States and localities were in tight fiscal straits, and courts were seen as a revenue generating system," he said. "Coming out of the Great Recession, there was this notion that you're a user of the system and you need to pay for what you use."
Raftery's organization has issued recommendations that state court salaries be funded solely by the state budget so there is no incentive to fine defendants. But he said turning the tide has proven difficult, as states have grown more reliant on fees for funding.
"Getting rid of them tends to be, frankly, a financial issue," he said. "It's a question of who's going to pay for it, and where will that revenue come from?"
Criminal fees from New York City raised about $5.2 million in 2016. That money went not to the courts, but to the state's general fund, the report said, and made up a mere .003 percent of New York's $153.2 billion budget.
"The mandatory surcharges and fees function as a regressive tax most frequently imposed upon those least able to pay, which causes harm wholly disproportionate to the small effect on the state budget it supports," the report said.
However, New York State Assemblyman Jeffrey Dinowitz, D-Bronx, who chairs the Judiciary Committee, called that argument "specious," saying the $5.2 million "is real money, and something would have to be cut from the budget to make up for it."
But he told Law360 on Wednesday the bar's report outlined "a number of serious issues," particularly about fees imposed on juvenile offenders.
"They raised some very serious and legitimate concerns that I think we should examine," he said.
Berger hopes some of the recommendations will be enacted, particularly since Democrats took control of the New York State Senate in November elections.
Lucian Chalfen, a spokesman for the New York State Unified Court System, said he thought judges would be in favor of "sensible reform."
"Many individual judges would support efforts to alleviate the burden of fees placed on the indigent, who often by the imposition of civil liens encounter significant barriers to re-entry into society following completion of their sentence," he said.
New York is hardly unusual in imposing these costs — and has fewer fees than many states.
The state has 30 mandatory fines, ranking 29th in the nation for the number of fees imposed, according to data from Harvard Law School's Criminal Justice Policy Program.
The price tag on New York's fines is also average, according to Joanna Weiss, director of the Fines and Fees Justice Center, a new advocacy group campaigning to eliminate such court costs in Florida and New York.
Weiss said her cause garnered national attention following the U.S. Department of Justice's investigation of law enforcement in Ferguson, Missouri, where the police shooting of Michael Brown, an unarmed black teenager, sparked national outrage.
The DOJ's 2015 report outlined a laundry list of biased practices, finding police — under pressure from local officials to fill city coffers — ramped up enforcement in order to collect criminal fees, and disproportionately targeted racial minorities.
Weiss said the New York City bar's report was part of a recent wave of "critical" efforts to ameliorate such problems in other municipalities.
"There's greater attention and understanding of the disparate impact of fines and fees on poor communities and communities of color," she said. "I think among the bar, there is a concern about this and how it affects the legitimacy of the courts."
--Editing by Katherine Rautenberg.