Remarks as Prepared for Delivery
Thank you, Lisa [Foster], for that kind introduction and your incredible leadership on the issue of fines and fees in our justice system. And thanks to you and Judith [Resnik] for bringing us together to discuss these important issues, as well as to the many students and staff who helped organize this gathering.
I also want to thank all of you participating in this conference — from students and academics to judges, advocates, policymakers and public officials — for your interest in and commitment to finding ways to eliminate practices that far too often trap individuals and their families in a cycle of poverty and punishment that can be nearly impossible to escape.
I am thrilled to be back at Yale Law School to discuss fines and fees in our justice system and the Justice Department’s Dear Colleague Letter that we released yesterday. We have revised and updated a letter we issued in 2016 about the assessment of fines and fees against adults, as well as a 2017 advisory regarding juveniles. I want to acknowledge my dear Justice Department colleague Rachel Rossi, the head of our Office for Access to Justice, who has been a tireless partner on these issues.
Back in 2014 when President Obama appointed me to lead the Civil Rights Division, I was frankly a little shocked — I had spent my whole career suing the government. Bringing the perspective of a lifelong civil rights lawyer to the Justice Department, especially in my current role, where I oversee all our civil litigating divisions, all three grantmaking offices and more, including our newly reinvigorated Office for Access to Justice (ATJ), I am acutely aware of the ways in which advancing civil rights is part of everything we do.
It is one of the Attorney General’s three coequal priorities for the entire department. This letter and our work to help jurisdictions across the country decriminalize poverty and decrease dependence on fines and fees is an important example of that priority in action.
I started in the Civil Rights Division in October 2014, just weeks after the fatal shooting of Michael Brown in Ferguson, Missouri, which set off nationwide protests and renewed the conversation — as it has been renewed many times since — about the relationship between law enforcement and the communities they serve.
The report we issued on Ferguson outlined the results of our investigation and exposed a system pervaded by racial bias and unduly focused on policing as a means to generate revenue, rather than prioritizing public safety. In just four years, Ferguson – a city of just 21,000 residents – issued approximately 90,000 citations for municipal violations.
We uncovered emails explicitly referencing the use of enforcement strategies “to fill the revenue pipeline” – without due consideration for whether officers could better protect the city by focusing on neighborhood policing, rather than debt collection. And we found that when people could not pay these fines and fees, they were subjected to multiple arrests, jail time and payments that far exceeded the cost of the original ticket. These practices had a devastating impact on poor residents.
We also found that the Ferguson Municipal Court was focused on compelling payment of fines and fees rather than acting as a neutral arbiter of the law. The court used arrest warrants as a routine response to missed court appearances and fine payments, issuing over 9,000 warrants in 2013 alone. As a result, violations that normally would not result in imprisonment — like parking infractions, traffic tickets or housing code violations — frequently led to jail time. We found that these practices overwhelmingly affected Black people and those living in or near poverty.
We entered a consent decree in Ferguson to curb these unconstitutional practices. And there has been real, concrete progress.
Because the court’s revenue-generating focus caused much of the police misconduct and because the court practices themselves violated due process and equal protection, our consent decree required the re-evaluation and possible dismissal of charges and reduction of fines, which substantially reduced the number of charges and resulting fines. In total, over 50,000 charges have been dismissed due to our consent decree — including 23,000 charges for Failure to Appear — helping alleviate community members’ financial burden and fear of arrest, and having a tangible impact for those who had been treated as revenue sources rather than valuable members of the community.
Our investigation in Ferguson revealed deep, systemic problems. But we also knew that Ferguson was not the only place in this country with such problems. Ferguson was a stark example, but this issue was bigger than Ferguson, and required more from the Justice Department.
Fines and fees that are assessed without consideration of ability to pay can have a devastating impact on a person’s life. Individuals who are unable to pay can become trapped in escalating and inescapable cycles of debt, extended periods of probation and parole, changes to immigration status and repeated, unnecessary incarceration. They can lose their employment, voting rights, driver’s licenses, homes or even custody of their children. These practices affect not just individuals but their families as well. And these detrimental effects fall disproportionately on low-income communities and people of color.
When fines and fees are assessed against juveniles, the consequences to youth and their families can be particularly acute, pushing young people further into the criminal justice system, driving youth and their parents into debt and putting considerable strain on familial relationships.
The harm is broader even than the individuals and families struggling to pay — local governments risk losing legitimacy and their constituents’ trust and in the end may generate little or no net revenue to show for it.
In 2016, I worked closely with Lisa, who led the department’s Office for Access to Justice, and together the Civil Rights Division and Access to Justice drafted what became the Department’s first Dear Colleague letter on fines and fees to state and local courts to help courts and judges guard against unlawful fine and fee practices. We also provided best practices for assessing fines and fees, such as considering alternatives to incarceration for indigent defendants with inescapable debts. We made clear that punishing poverty not only violates the law, it can destroy lives and tear apart families.
In 2016 we also filed a statement of interest in a case alleging that Virginia automatically suspended drivers’ licenses of people who failed to pay fines and fees, noting that “[a] driver’s license is often essential to a person’s well-being, including [the] ability to maintain a job, pursue educational opportunities, or care for children or other family,” and that penalizing people for their poverty violates the Fourteenth Amendment.
And in January 2017, the Office for Justice Programs (OJP) put out an advisory on fines and fees for juveniles, which highlighted the ways in which unaffordable fines and fees are particularly problematic and harmful for youth and their families.
We know the 2016 Dear Colleague letter had an impact on the national conversation on fines and fees and led to real change in the states. Since we issued it, 24 states and the District of Columbia have ended or significantly reformed their practice of suspending driver’s licenses for unpaid fines and fees. The wave started with Mississippi and California in 2018, and it has continued to be bipartisan.
Earlier this month, New Mexico became the 24th state to enact reforms that will restore driver’s licenses to over 300,00 people whose licenses had been suspended for unpaid fines or failure to appear. Similarly, after the January 2017 advisory on fines and fees on youth, 16 states eliminated all or some of the fines and fees imposed in the juvenile justice system. This is just a sampling of some of the significant innovations that states have been leading around the country on these issues.
I returned to the Justice Department in 2021, and despite the significant progress, it is also clear this is still a live issue requiring the federal government’s attention.
Last year, the Civil Rights Division and Office for Access to Justice teamed up to file a statement of interest on the issue of fines and fees.
Plaintiffs in Coleman v. Town of Brookside alleged that police officers, prosecutors and judges in Brookside, Alabama, were using aggressive enforcement of the municipal code to raise revenue. The strategy worked: According to plaintiffs, both fines and fees collection and vehicle seizures increased significantly in Brookside between 2018 and 2020. In 2018, police ordered 50 cars towed and impounded, and by 2020, the number rose to 789. Over the same period, annual traffic citations rose from 382 to over 3,000. As a result, by 2020, revenue from fines, fees and forfeitures made up almost half of Brookside’s annual revenue.
The vast majority of the revenue allegedly went to the police department, as the police force grew to a per-capita size nearly five times larger than the national average. The increase in officers accompanied more citations and arrests – and more revenue. And between 2019 and 2021, the Brookside City Council more than doubled the municipal judge’s salary and increased the annual salary of the town attorney by over $50,000.
In our statement of interest, we asserted that the Fourteenth Amendment’s Due Process Clause bars significant financial and institutional conflicts of interest, including in the enforcement of municipal code fines, fees and vehicle seizures. As we said in our brief: “Courts, prosecutors, and police should be driven by justice—not revenue. . . . Criminal justice systems tainted by unreasonable incentives stand to punish the poor for their poverty and put law enforcement at odds with the communities they are meant to serve.”
Just like in 2016, this persistent problem is not isolated to Brookside, and it has been clear to me and my colleagues at the Justice Department that we needed to do more. Court leaders, court administrators, lawmakers, advocates and other stakeholders, including many of you here, urged the department to reengage and update our guidance, reflecting both the progress that has been made and the continued pervasiveness of the problem.
I asked a cross-department team to revisit our 2016 letter on fines and fees and the January 2017 advisory on fines and fees for youth. The new letter the department announced yesterday, jointly signed by Kristen Clarke of the Civil Rights Division, Amy Solomon of the Office for Justice Programs and Rachel Rossi of the Office of Access for Justice — from whom you’ll be hearing this afternoon — revises and updates those documents for the current moment.
This letter is more comprehensive, addressing fees imposed on both adults and juveniles. We have updated the letter to reflect changes in relevant case law since 2016. And we have more clearly cautioned against racially discriminatory enforcement of fines and fees. The letter emphasizes that eliminating unjust fines and fees is one of the best ways for jurisdictions to support the success of youth and low-income individuals, reduce racial disparities in the administration of justice, and build trust between local government and the community.
We make clear in the updated letter that there are circumstances in which assessment of fines and fees may be lawful. But we also make clear that, in certain circumstances, unjust imposition and enforcement of fines and fees violate the civil rights of adults and youth accused of felonies, misdemeanors, quasi-criminal ordinance violations and civil infractions. And we acknowledge that many states, municipalities and court leaders have adopted innovative approaches to reduce their reliance on fines and fees.
We emphasize that unaffordable fines and fees often do not achieve their stated purposes, including frequently generating little or no net revenue. In many cases, they undermine rehabilitation and successful reentry and may increase recidivism. And they can and have eroded trust in the justice system.
In the letter, we lay out a framework for understanding these issues and for judges and court administrators to assess their jurisdiction’s handling of fines and fees consistent with sound public policy. The framework is composed of seven basic constitutional principles, grounded in the Sixth, Eighth and Fourteenth Amendments:
First, the Eighth Amendment prohibits the imposition of fines and fees that are grossly disproportionate to the severity of the offense.
In our letter, we outline the Supreme Court’s 2019 decision in Timbs v. Indiana, in which the Court held that the Eighth Amendment’s Excessive Fines Clause applies to the states. This means courts must consider the severity of the offense in assessing fines and fees that are punitive, even in part. Independent of legal considerations, we recommend that courts consider a person’s economic circumstances when assessing fines and fees.
Second, the Fourteenth Amendment prohibits incarceration for nonpayment of fines and fees without first conducting an ability-to-pay determination and establishing that the failure to pay is willful.
As the Supreme Court held in Bearden v. Georgia, the Constitution prohibits “punishing a person for [their] poverty,” and equal protection and due process principles require courts to conduct a “careful inquiry” that balances an individual’s interests against the state’s interests. The key question is whether an individual has made sufficient bona fide efforts to obtain the resources to pay. We explain in the letter that the ability-to-pay analysis should not be based on how individuals spend their resources, but rather on criteria such as income and financial resources.
We also encourage jurisdictions to consider presumptions of indigency for certain classes of defendants, including juveniles, so individuals who cannot afford to pay for their basic needs are not saddled with fines and fees they will never be able to pay back.
Third, the Fourteenth Amendment requires the consideration of alternatives before incarcerating individuals who are unable to pay fines and fees.
We explain that imposing certain serious adverse consequences for failure to pay an unaffordable fine or fee, where alternative approaches could serve government interests, violates the Fourteenth Amendment. We recommend that states and localities consider requiring a factfinder to determine that alternatives are inadequate to meet the State’s interest in obtaining payment before penalizing individuals for their inability to pay.
Fourth, the Fourteenth Amendment prohibits the imposition of fines and fees that create conflicts of interest.
We also discuss the applicable case law addressing how the imposition of fines and feeds can create conflicts of interest.
For example, we cite the Fifth Circuit’s 2019 decision in Cain v. City of New Orleans, in which the court held that parish judges were not neutral decisionmakers because they oversaw collection of fines and fees that funded a substantial portion of a judicial expense fund they administered and that supported the salaries of judicial staff and other court expenses.
Fifth, the Fourteenth Amendment also prohibits conditioning access to the judicial process on the payment of fees by individuals who are unable to pay.
Predicating access to a hearing, to counsel or other judicial process on the payment of fees such as court costs that can deprive those without financial resources of equal access to justice and may violate their rights.
As many of you in this room know well, fines and fees assessed by courts are often incorrectly framed as routine administrative matters. We give the example of a motorist who is arrested for driving with a suspended license, who may be told that the penalty for the citation is $300 and that a court date will be scheduled only upon the payment of $300. Not having that $300 should neither deprive the motorist of access to the justice system nor lead to an avalanche of follow-on consequences. A fine should never amount to an entry fee to the courts.
Sixth, the Sixth and Fourteenth Amendments require due process protections, such as access to counsel in appropriate cases, as well as notice, when imposing and enforcing fines and fees.
We explain in the letter that if a failure to appear or pay may lead to incarceration, the Sixth Amendment entitles a person to counsel in a criminal case and the Fourteenth Amendment may impose a similar requirement in civil cases.
As to notice, we recommend that courts work to ensure individuals actually receive citations and summonses, and adequately inform individuals of the precise charges against them, the amount they owe or other possible penalties, the date of their court hearing, the availability of alternate means of payment, the rules and procedures of court, their rights as a litigant and whether they must appear in person.
Seventh, the Fourteenth Amendment prohibits the imposition of fines and fees in a manner that intentionally discriminates against a protected class.
As we saw in Ferguson, efforts to collect fines and fees that have a discriminatory effect on members of a particular race may constitute evidence that, in combination with other evidence, could support a finding of intentional discrimination.
Even in the absence of intentional discrimination, the department recommends that courts and other state actors carefully consider whether their collection of fines and fees has disproportionate effects based on race or another protected characteristic. For example, courts should consider whether certain fines and fees practices, such as debt-based driver’s license suspensions, disproportionately affect people of color.
I am thrilled to see this letter out in the world, and I hope it will be a helpful resource and a spark to further ignite change in this area. I know some of you have been asking and waiting for something like this for quite some time. I am grateful for your advocacy and your persistence, and I look forward to continuing to work on these issues together.
Beyond this letter, the Justice Department remains committed to collaborating with court leaders and stakeholders to develop and share solutions. The department is open to serving as a resource, collaborateand promote solutions, and provide grant funding and technical assistance to state, county, local and Tribal courts, including assistance to help court systems move away from an overreliance on fines and fees.
To that end, in the coming weeks the department’s Office of Justice Programs will release a solicitation entitled “The Price of Justice: Rethinking Fines and Fees,” seeking a training and technical assistance provider to work with jurisdictions interested in reforming their fines and fees policies and practices.
The department’s Office for Access to Justice will be following up on the updated letter by building a best practices guide, highlighting innovative work by states, municipalities and court leaders in this area — work that has been bipartisan across the country.
And the Civil Rights Division is available to provide technical assistance to courts, other recipients of federal financial assistance, and stakeholders, as appropriate. The Division also has important enforcement authority it may deploy where appropriate. And, along with ATJ, the Civil Rights Division may file statements of interest in appropriate cases.
Eliminating the unjust imposition of fines and fees is one of the most effective ways for jurisdictions to support the success of youth and low-income individuals, honor constitutional and statutory obligations, and reduce racial disparities in the administration of justice. As one of my law professors and much-admired colleagues Bryan Stevenson has said, “The opposite of poverty is not wealth, the opposite of poverty is justice.” Thank you all for the work you do every day to promote justice.