Should criminals bear the cost of their own rehabilitation?
Last year, on November 4th, a McLean County judge handed down a sentence for drug possession. Two days in jail. Twenty-four months of probation. Thirty hours of community service. All typical for that kind of crime. The $500 base fine was also standard. Ultimately, however, the first-time offender will walk away paying — or owing — $3,165.50. That’s typical, too.
Like many other states, Illinois has tried to fund its criminal justice system through a series of fees and fines on the men and women who are caught up in it. Backers of this approach say it makes sense that criminals should defray the costs they impose on society. There are, however, a number of problems with the practice.
From a practical standpoint, the majority of people who encounter the criminal justice system are among the least affluent in American society. That makes collection a challenge. It can also lead to debt that makes the already difficult job of re-integrating offenders into society that much harder. For the McLean County individual, the $3,165.50 would take nearly 384 hours of work to pay off at Illinois’ minimum wage — nearly 10 weeks — and that’s not accounting for taxes, food, shelter, clothing and bus fare.
In addition to the practical considerations, the concept of fee-based criminal justice raises philosophical questions. If the plethora of costs are styled as “user fees,” who are the primary users of the criminal justice system? Who are its primary beneficiaries? The people being arrested, tried and convicted? Or the rest of us, who enjoy the protection the law provides?
The Sargent Shriver National Center on Poverty Law assessed this situation in its report, “Debt Arising From Illinois’ Criminal Justice System,” published in 2009. “Increases of a few dollars here and there may seem insignificant when the framework is one fee, especially for legislators passing these fee increases,” attorney Marie Claire Tran-Leung wrote. “A different picture emerges, however, when the fees are examined in the aggregate.”
For the McLean County offender, the aggregate comprises 33 separate line items. It includes the base felony fine of $500, $100 for the street value of the drugs, $350 for the traffic and criminal conviction surcharge, $250 for DNA analysis, $100 for the Illinois State Police crime lab, $172 for the violent crime victim assistance fund, $30 for the juvenile records expungement fine, $10 for the medical costs fund, $10 for drug court fees, $15 for the child advocacy center fee, $500 for the drug treatment assessment fund, $100 for the drug trauma fund, $5 for the drug spinal cord injury fee, $25 for police drug task forces, $20 for the prescription drug disposal fund, $30 for the state’s attorney, $22 for the sheriff, $15 for document storage, $9.50 for the copy or motion fee, $10 for probation operations and $600 for probation services — 24 months at $25 per month.
And new fees keep coming. This year, in the wake of outrage over police killings of unarmed black men in New York, South Carolina and Missouri, the Illinois General Assembly passed legislation to equip officers with body cameras. It would be funded by a 50 percent hike in the Traffic and Criminal Conviction Surcharge, a fee that, as its name implies, is imposed on everyone convicted of criminal and traffic offenses. Currently it’s a $10 upcharge on every $40 in fines, but that would increase to $15 under the body cam legislation. It would have been an additional $175 for the McLean County offender.
While events like the police shooting of Michael Brown helped spur the passage of body camera legislation in Illinois, a Department of Justice report (PDF) that came out of its investigation of the Ferguson police department was critical of the high fees charged there: “They impose a particular hardship upon Ferguson’s most vulnerable residents, especially upon those living in or near poverty. Minor offenses can generate crippling debts, result in jail time because of an inability to pay, and result in the loss of a driver’s license, employment, or housing.” But the situation in Ferguson was particularly egregious. The report says the municipal government relied on fees to such a degree that the civil liberties of residents often came second to revenue collection.
Members of the Illinois legislature’s black caucus count the broadly supported police-regulation bill as a success, and it has been described as a potential model for other states. The legislation also includes new police training and reporting requirements. “We have to address this today versus waiting for a Ferguson to occur in our own back yards," Maywood Democratic Sen. Kimberly Lightford said at a news conference in May. "Body cameras are a tool that can give us an eye into the truth of what actually happens between officers and suspects. This will benefit both sides by eliminating uncertainty."
But that tool does not come cheaply. Cameras cost about $400 each, and police departments that want to use them will also need to pay for storage of the hours of digital information they collect. The legislation sets out requirements on how long departments would have to retain certain types of footage. Without money from the proposed fee increase, it is unlikely that body cameras would be widely adopted in the near future.
There are three primary ways in which Illinois demands money from offenders: restitution, fines and fees. Restitution is intended to directly benefit victims, so it could, for example, require someone to reimburse a burglary victim for what was taken. Fines are intended to be punishment, and in Illinois can be up to $25,000 for felonies and murder. The third category, fees, is meant to help fund government operations.
“Charging inmates fees is not new,” Lauren-Brooke Eisen wrote in a recent report published by the Brennan Center for Justice. “Michigan passed the first correctional fee law in 1846 when it authorized counties to charge inmates for the cost of medical care. Today, at least 35 states authorize either state or correctional facilities to charge inmates for medical fees such as co-pays or fees for procedures.”
It may be an old practice, but it’s ramped up in the past few decades. Last year, an Illinois appellate court ruled (PDF) that the Department of Corrections could take nearly $20,000 from then-inmate Johnnie Melton. He’d been serving a nine-year sentence for drugs — the latest in a series of prison terms for everything from burglary to armed robbery. His windfall came from the settlement of a wrongful-death lawsuit involving his mother. Melton objected to the state’s demand for payment, citing the “squalid” and “unsafe” living conditions at Logan Correctional Center. But the court decided that had nothing to do with his legal obligation to pay for his incarceration.
While it may be a legal obligation, the rarity of the state actually extracting rent from inmates makes it a rounding error on the department’s billion-plus budget. According to records kept by the Illinois comptroller, the most Corrections has collected in recent years is $342,445, in fiscal year 2004. That number has typically been significantly lower — fiscal year 2013 had the department collecting $3,950, and the fiscal 2014 total is zero.
Another area in which some jurisdictions have sought to make up budget shortfalls is by charging for the use of a public defender. The Brennan Center says 43 states and Washington, D.C. allow public defender fees. Illinois is in that group, but not all counties avail themselves of the opportunity.
According to the 2013 Annual Report of the Illinois Courts — the most recent year available — there were 16 counties in which the circuit clerk reported no fee collections related to court-appointed counsel. It’s most popular in the collar counties and in some rural locations downstate. Lake County collected the greatest amount, nearly $344,000, representing 7 percent of the $5.1 million Lake County budgeted for the public defender’s office that year.
The Shriver Center report says Cook County doesn’t engage in the practice, though the clerk did report $1,475 in fees for court- appointed counsel in 2013 — or 0.003 percent of the office’s $55.6 million budget.
Despite the uneven popularity and modest effectiveness of public defender fees, Illinois courts have made them particularly hard to evade. An appellate panel has said even people acquitted of crimes can be charged for a public defender. And in a separate case, an appellate panel held that just because the offender was unemployed didn’t mean he shouldn’t kick in toward his court-appointed lawyer. “Defendant is young, foreseeably employable and married to a working woman,” the justices wrote.
The expectation that an offender’s wife would help him out with his court fees is grounded in evidence. According to Eisen, experts estimate at least 80 percent of people in jail are indigent. “In most cases, the inmates’ families pay these fees, a reality that makes it difficult for families already suffering from the loss of income from an incarcerated family member.”
Indeed, an Illinois prison official recently told members of the governor’s criminal justice commission that this is why the state — unlike many county jails — does not impose fees on inmates who are moved from prison to electronic monitoring. “We’ve run into the issue of grandma paying — others incurring that cost,” says Sharon Shipinski, a parole administrator and acting manager of planning and research at DOC. She says the department has everything in place it would need to process the fees — “we just can’t figure out how to make sure the right people pay them.”
While court fees certainly present a challenge or low-income defendants, they’re also challenging for the judges and court personnel who are obligated to impose and collect them. The Administrative Office of the Illinois Courts produces the Manual on Fines and Fees, which is distributed to chief judges and circuit clerks. It’s reportedly 500 pages long, though the office declined to make it public, calling it an internal document. A spokeswoman, however, did provide the “List of Applicable Legal Requirements,” which is meant to help local government officials audit the money flowing through circuit clerks’ offices. That document includes an 11-page list of fines and fees for everything from arson to the illegal harvest of ginseng root.
The Illinois Supreme Court raised an alarm about the proliferation of fees at least as far back as 1991, in its Annual Report to the General Assembly, saying it had become “impossible” to apply them in a “consistent and coherent” manner. Court clerks have also expressed concern about fees. A 1997 survey, cited by the Shriver Center, found 92 percent of clerks “identified the collection of fines, fees, and restitution as a task that contributed significantly to their workloads.” It was a bigger problem than filing documents, keeping track of the court calendars and collecting child support payments. This has led to varying levels of enthusiasm among Illinois clerks.
John O’Gara, the public defender in St. Clair County, says officials there have not been “over the top” on fines for a long time. “For a while they let it go. Then they hired some outfit, some law firm, to maybe do the collections work for them. They were hounding it down. Then that kind of went by the wayside,” O’Gara says. “Years ago they used to waive fines and costs if you got a prison term. Now they can’t do that anymore."
But Champaign County Public Defender Randall Rosenbaum says officials there work with a collection agency that specializes in government debt. He says probation isn’t revoked solely because of non-payment. “But if someone’s being revoked for other reasons — not reporting to probation and positive drug tests — then they’ll just throw in everything they can, which may include the fines and fees.”
Questions about fees go beyond their effectiveness — and the burden they impose on both offenders and officials — into the realm of the philosophical. David Olson, a criminologist at Loyola University Chicago, asks whether parole and probation officers’ time is best used as revenue-collecting agents. Should they be scrutinizing pay stubs and rent receipts to make sure offenders are paying all they can? “Or would that time be better spent saying where do we need to refer you to get your substance abuse treatment?” he asks.
Olson says the job of generating revenue muddies the waters of the justice system. “Collecting money on behalf of a victim, in the form of restitution, I think that’s a little bit different,” Olson says. “But saying we’re going to impose a $1,000 fine on you because we need to provide support for prosecutors’ offices and police training and crime labs ... is it really worth the effort given the population that we’re targeting?” There’s an absurdity, he says, in conditions of supervision that routinely impose thousands in fees while simultaneously requiring that offenders look for work — thus acknowledging they lack the means to pay. Olson says even though people aren’t jailed solely for not paying fines, it can lead to bad marks on one’s record, making a harsher sentence more likely in the future.
The proliferation of fees means that, when offenders can’t pay, some of the worthy causes being funded are going to get squeezed. For example, Olson says, there might be enough money for body cameras or the domestic violence fund, but not both. Records of that McLean County drug case show that, at the time of sentencing, the offender had already paid nearly $1,000 toward fines and fees. The county applied much of that money toward its own operations — the court clerk and prosecutor’s office — but the state police crime lab had yet to be reimbursed, and the fund for research into spinal cord injury paralysis was still awaiting its $5.
The question of who ought to pay for prison is particularly vexing in a state as incarceration-happy but taxation-averse as Illinois. Fees have long seemed an attractive option for a range of policymakers, whose motives range from further punishing offenders to improving a system that’s long been short on cash. But opponents of fees suggest they’re a form of shirking civic responsibility. “If society prefers, it can choose not to incarcerate,” Sharon Dolovich wrote in the New York University Law Review, back in 2009. “But if it wants the benefits of incarceration, society must bear the burden, even if this choice should oblige the state to provide for the needs of people in prison in ways it routinely fails to do for needy people in the free world.”