Substantial fees and fines now are now routinely imposed by courts and other criminal justice agencies across the United States. This article summarizes research on the imposition of monetary sanctions in the United States and shows how they differ from European day fines. In the contemporary United States, court-imposed legal financial obligations supplement other criminal penalties in the majority of felony and misdemeanor cases. Judges impose many fees and fines at their discretion, and evidence from Washington State indicates that extralegal factors–including ethnicity–influence their assessment. Many states have also authorized jails, departments of correction, and probation offices to levy fees. In the United States, fees and fine amounts are determined by statute and are not tethered to defendants’ earnings. Recent studies suggest that the assessment of these penalties often generate long-term debts that are sizeable relative to expected earnings and impede reintegration.
This essay contends that the disadvantages of the widespread and discretionary imposition of substantial and supplementary financial penalties outweigh any benefits associated with this practice. Proponents of correctional and court fees argue that offenders—not taxpayers—should pay for the cost of punishing their misdeeds. The idea that offenders should foot the bill for criminal justice expenditures is a moral and political claim, one that likely has broad appeal. Nonetheless, this claim is in tension with at least two other important principles. First, public criminal law systems rest on the premise that crime is mainly a wrong against the state; violations of criminal law are thought to be significant enough to warrant the state's usurpation of the dispute resolution process. Compelling defendants to reimburse the state for its criminal justice expenditures is in tension with this principle. Moreover, unlike users of other services for which fees are assessed, penal targets are compelled to partake of these services; they cannot use fewer of them or look for an alternative provider of them. It can be argued that if the state compels penal targets to use (often expensive and ineffective) state “services,” then the government is obligated to pay for them. Indeed, this fiscal obligation is arguably an important check on government power.
Competing moral and political arguments regarding the appropriateness of assessing fees to recoup criminal justice expenditures thus exist. Even if it were universally accepted, the idea that offenders should pay for their adjudication, punishment and rehabilitation must be balanced against policy and practical considerations, as well as against ethical issues concerning justice and fairness. Our analysis pertains only to the imposition of fees and fines in the contemporary United States and does not extend to European-style imposition of day fines. The widespread assessment of substantial and nongraduated fees and fines lacks a convincing penological rationale, is incompatible with policy efforts to facilitate reintegration, and raises numerous concerns about justice and fairness.
At least in theory, penal policies are aimed at incapacitation, rehabilitation, deterrence, and retribution. Monetary sanctions do not appear to accomplish any of these goals. By definition, monetary sanctions do not prevent crime by incapacitating offenders. Theoretically, monetary sanctions might be rehabilitative if their repeal was offered as a reward for participation in rehabilitative programs or prosocial outcomes. Yet erasure of legal debt generally is not offered as a reward for good behavior. For a penalty to effectively deter wrong-doing, its consequences must be known to potential offenders as they contemplate their options; swiftness and certainty are key. But the assessment of monetary sanctions is characterized by neither swiftness nor certainty. Finally, because monetary penalties in the United States are supplements to criminal penalties that already are comparatively severe, directly and adversely impact the partners and children of the criminally convicted, and typically remain in effect long after all other elements of criminal sentences are completed, they are disproportionate to the offense and, hence, approach vengeance rather than retribution.
Monetary sanctions also complicate reintegration. An estimated 700,000 inmates return to civil society from jail or prison every year. In this context, researchers and policy makers increasingly emphasize the need to facilitate the reintegration and stabilization of the criminally convicted. Yet there is evidence that the widespread imposition of substantial and nongraduated fees and fines impedes reentry. For example, legal debt tends to be long term due to the low earning power of the criminally sanctioned, the magnitude of the sanctions imposed, and the accrual of interest. Monetary sanctions imposed by the criminal justice system thus constitute an additional, substantial, and often long-term financial liability for people living with a criminal conviction. Like other types of debt, legal debt reduces access to housing, credit, and employment; it also limits possibilities for improving one's educational or occupational situation. Unpaid legal debt can lead to a warrant, an arrest, and/or incarceration. In some locales, legal debtors also are denied drivers’ licenses, a practice that creates an additional barrier to employment. Legal debt thus has a variety of adverse and destabilizing consequences for those who possess it, including the threat of arrest and incarceration.
The widespread imposition and collection of substantial and supplementary monetary sanctions in the United States also raises several important concerns about fairness and justice. In particular, nongraduated monetary penalties supplement already severe confinement sentences, impose a disproportionate burden on the poor, and are, at least in Washington State, influenced by various extralegal factors, including ethnicity. These penalties also directly and adversely affect family members, lead with some frequency to the arrest and incarceration of debtors, and raise important questions about the meaning and legacy of Gideon v. Wainwright (1963). Moreover, the collection of fees and fines to fund government operations is of uncertain fiscal benefit to the state. A comprehensive assessment of the fiscal benefit to the state of imposing fees and fines must consider both the direct and indirect costs associated with the collection of LFOs. It is unclear that the results of this mathematical exercise would, if the necessary data were available, show that the imposition and collection of LFOs is a net financial gain. Even if revenues from fees and fines are greater than the expenditures devoted to their collection, dependence on this private funding source for criminal justice operations arguably compromises the integrity of courts and creates conflicts of interest for judges.
This essay concludes that the widespread imposition of nongraduated, supplementary and substantial monetary penalties by U.S. criminal justice agencies lacks a convincing penological rationale, is incompatible with policy efforts to facilitate reentry, raises important concerns about fairness and justice, is of uncertain financial benefit to the state, and arguably compromises the integrity of the courts.