Campaigns To Eliminate Justice Fees Pick Up Steam

By Marco Poggio | October 7, 2022, 4:40 PM EDT ·

In 2009 in Norman, Oklahoma, Kendallia Killman was arrested and charged with possessing marijuana and drug paraphernalia after a police officer found a pipe with marijuana residue on it under the backseat of her car. She had bought the car two days earlier for $400.

A court-appointed lawyer advised Killman, who had no criminal record, to plead no contest. A judge sentenced her to two years in prison, but agreed to stay the sentence if she served probation and paid court costs.

In addition to a $150 fee for receiving a "free" lawyer, Killman had to pay $100 in victims compensation fund fees even though there were no victims to her crime. She also had to pay fees to the court information system, the clerk, the law library, the sheriff's office and the local district attorney's office that prosecuted her. The total bill was $1,150.

Killman, a mother of two living on food stamps and one of her children's federal disability checks, could not pay. So the sentencing judge put her on a payment plan: She would have to pay $100 a month, plus $40 a month for her probation supervision.

She was eventually able to persuade the judge to waive the probation costs, but she still had to pay the fees. She missed payments on several occasions, and on each one of them a warrant was issued for her arrest. By 2017, eight years after she was convicted, she still owed $1,600.

"Kendy is not alone," said Lisa Foster, co-director of the Fines and Fees Justice Center, an organization advocating for the elimination of fees in the criminal justice system. "Fees today are imposed at every touchpoint in the system, on adults and children in the juvenile justice system. They can even be imposed if you are not convicted of a crime."

Speaking at a benefit event hosted by the National Center for Access to Justice at Fordham University School of Law on Thursday evening, Foster said Killman's story illustrates how fines and fees that states and localities impose on criminal defendants, many of them indigent, often trap them into a downward spiral that leads to more poverty and more involvement in the justice system.

She said fines and fees are not exclusive to Oklahoma, or other "red" states. Speeding tickets in California, for instance, are often $100, but the state charges an additional $390 fee for each ticket. New York imposes a $95 surcharge on traffic tickets and $350 for felony convictions. The money ends up in the state's general fund. Judges cannot waive or reduce those charges, which are built into the law.

"These are taxes. There is no other way to describe them," Foster said. "They are funding an essential governance service — our justice system — as well as various programs that have nothing to do with the justice system."

Fees also drive social and racial inequalities because low-income people, and particularly people of color, are overrepresented in the justice system, said Foster, a former California Superior Court judge in San Diego who also served as director of the U.S. Department of Justice Office for Access to Justice.

Not paying fees can also lead to the loss of the right to vote, or suspension of driving privileges, which can prevent people from working, further exacerbating poverty.

The Fines and Fees Justice Center, which currently operates in four states — Florida, Nevada, New York and New Mexico — is involved in campaigns to abolish the fees associated with the justice system. Foster acknowledged the road ahead is long, but also that progress has been made in recent years. Collectively, states, cities and counties eliminated fees and slashed over $40 billion of debt linked to them. More than 20 states have ended or substantially reformed the practice of suspending driver's licenses for unpaid fines and fees. The first two states to stop suspending driving licenses for unpaid fees were California and Mississippi.

"As a consequence, we've also shrunk the justice system," Foster said, "because in states that suspend licenses for unpaid fines and fees, driving on a suspended license is among the top five criminal charges."

The Fines and Fees Justice Center estimated that the number of people involved in the justice system in New York, one of the states to end the suspension practice, fell by about 10% because of the change.

Foster said the campaign to end fees is appealing to both Democratic and Republican lawmakers across the country. 

The efforts by the Fines and Fees Justice Center have grown into a national campaign that is gathering steam and partners willing to push it forward. A dozen smaller organizations have joined the campaign alongside groups with national profiles.

Just hours before Foster was set to speak at Fordham, the American Civil Liberties Union announced it was joining the campaign. Americans for Prosperity, a libertarian conservative political advocacy group founded in 2004 and funded by David and Charles Koch, has also joined the effort.

"There is nothing just about fees. Fees serve to fund the relentless expansion of mass criminalization and surveillance off the backs of the people targeted by those systems," Emily Reina Dindial, senior policy counsel at the ACLU's Justice Division, said in a press release. "When cities and states rely on fees to balance their budgets, it fuels policing-for-profit and the injustice that comes with it. Eliminating fees is a necessary step toward a more legitimate legal system."

As part of its advocacy, which involves lobbying at the state and local levels, the Fines and Fees Justice Center is utilizing an index of all the states charging justice fees created by the National Center for Access to Justice. The fees index is part of an online, data-intensive ranking system called the Justice Index, which the National Center for Access to Justice started in 2014. 

Compiled in collaboration with volunteer attorneys from prominent law firms and major corporations, every year the Justice Index ranks 50 states, the District of Columbia, and Puerto Rico on five aspects of access to justice: access to an attorney, self-representation, language access, disability access, and fines and fees. It also makes policy recommendations to increase access to justice.

David Udell, executive director of the National Center for Access to Justice, said at the benefit event the Justice Index and the Fines and Fees Index have already had an impact.

After being ranked 50th for lacking policies to help people with limited English skills navigate the court system and for having fewer than one civil legal aid attorney for every 10,000 people living below the poverty level, Oklahoma created an access to justice commission, and eventually adopted three of the polices the Justice Index had recommended. As of the 2016 Index, the state jumped to 42nd place. In 2021, it moved to 22nd place.

A Delaware General Assembly representative also mentioned the Justice Index while introducing a bill that eliminated justice fees for people who cannot afford them and gives judges the power to waive them. John Charles Carney Jr., the Democratic governor of the state, signed the bill into legislation on Monday, moving Delaware from 47th to a tie for 16th in the Fines and Fees Index.

Ten law firms — DLA Piper, Kirkland & Ellis LLP, Latham & Watkins LLP, Morgan Lewis & Bockius LLP, O'Melveny & Myers LLP, Skadden Arps Meagher & Flom LLP, Simpson Thacher & Bartlett LLP, Hughes Hubbard & Reed LLP, Patterson Belknap Webb & Tyler LLP, and Stroock & Stroock & Lavan LLP — helped research data that created and expanded the Justice Index, culminating in Justice Index 2021. Teams from four corporations, Deloitte, GE, and Pfizer, and UBS, helped with the effort.

--Editing by John C. Davenport.

Update: This story has been updated to add additional information about the Justice Index and the Fines and Fees Index.

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