Nationwide protests in response to the brutal murder of George Floyd have put a spotlight on the profound injustices of the criminal legal system. Much of the criticism has rightly focused on the abuses in policing and incarceration. But along with abusive policing, another urgent threat that impoverished communities face under this system is the growing financial burden of extortionate fines and fees.

This regressive source of revenue funds the legal system by extracting resources from low-income Black and brown people, who are already trapped in vicious cycles of criminalization and poverty. The severe economic crisis resulting from COVID-19 has increased the need for vigilance. State and local authorities may be tempted to take the same steps they took after the 2008 financial crisis, increasing criminal fines and fees to generate revenue to cover their budget shortfalls.

As policymakers begin to rethink policing, they should also address other problematic government policies, including relying on this source of funding, that magnify systemic inequality.

Local governments impose fines and fees for everything- from criminal charges to parking infractions, and violations of trivial municipal code requirements. After the 2008 financial crisis, cities and counties in 48 states increased their use of fines and fees to fund both the criminal legal system and other government functions. This creates a tiered-justice system, privileging those who can pay to escape the system and trapping those who cannot. Low-income communities are essentially taxed to keep the system afloat, paying for the abusive policing and incarceration practices that impose ever greater financial burdens on them.

People living in poverty are doubly impacted. Police are more likely to be present in low-income and gentrifying communities, often those with a large percentage of people of color, and the greater contact with the police leads to higher rates of arrest. People without means are not only saddled with unpayable fines and fees, but are also targeted by the police to collect arrears.

Judges, police and probation officers effectively become revenue collectors. And because many of these funds go back into running the courts and law enforcement, they create perverse incentives to retain people in the criminal legal system and to wring as much revenue as possible from them in each case. When a person cannot pay their fees and fines, they can suffer myriad consequences like new or additional probation requirements, suspension of drivers’ licenses, and obstacles to exercising voting rights.

I’ve spoken to dozens of people in different states, being supervised by private probation companies who were struggling to keep up with their court costs, fines and supervision fees. Often, they also had to pay for probation requirements, like ankle monitors, drug testing and treatment, and courses. Many said that they were afraid to report to their probation officers as required because they knew they’d be threatened if they couldn’t make their payments. If they missed a payment, they could be slapped with late fees or other penalties, like suspended drivers’ licenses, making it harder to work or to meet the probation requirements. And in many cases that I saw, failing to appear or pay would snowball into court appearances, extended probation sentences, warrants for arrest, and even jail time. All of these would irrationally pile on even more fines and fees.

The Justice Department’s investigation into the police department of Ferguson, Missouri, found the city’s reliance on this source of income, and it was discovered that harsh penalties for failure to pay resulted in aggressive police action to enforce the municipal code, undermining public trust and safety. Instead of waiving costs for those who can’t pay, judges would often put people on payment plans that actually increased their costs and for some, send them into a state-sanctioned debt trap.

The economic recession sparked by the COVID-19 pandemic means that state and local governments may face budget shortfalls even greater than after the 2008 financial crisis. Many local governments laid off staff following the 2008 crisis, in some cases even reducing their police departments. When the pandemic hit, many cities and counties had still not returned to pre-2008 spending levels, particularly for education and infrastructure. In the current crisis, cities and counties are expected to lose billions of dollars in revenue and face massive budget shortfalls. Not only will millions of municipal and county workers face loss of jobs, but deficits could affect a wide range of services, including sanitation, mental health services, policing and education.

Local governments will be hard-pressed to fill budget gaps. Tax revenues from property and sales have declined during the pandemic. Many state and local governments also have rules limiting their ability to increase taxes or spending. Greater reliance on criminal fees and fines would shift the burden of the budget to those least able to pay, repeating the mistakes of the 2008 crisis.

As policymakers move to fundamentally rethink policing, they should look at all systems that unnecessarily criminalize people and perpetuate inequality. Divesting resources from the police and reinvesting in social services is a critical step to ending the abuses in the criminal legal system. This would help address underlying issues of poverty, homelessness, problematic drug use and mental health, instead of compounding them through unnecessary policing paid for by extracting resources from impoverished communities.

As Congress negotiates a new COVID-19 response and economic relief bill, it should include support for state and local governments so that they are not forced to slash social services. State and federal assistance should have clear guidelines on directing aid to those people who have been most affected during the crisis, and should be critically tied to local governments’ commitment to not create or expand excessive criminal fines and fees.

State and local governments should promptly commit to ending their inequitable reliance on this source of revenue. Local court systems should divest from probation by reducing the length and number of conditions, and move toward true alternatives to incarceration, including unconditional discharges and proportionate and flexible community service requirements.

Local governments and courts should also put in place clear guidelines that prevent overburdening people living in poverty, including assessing a person’s ability to pay before imposing fines and fees. Courts should use a sliding scale for those who are unable to pay the full cost of probation and other court-mandated requirements, or waive them entirely for those who cannot afford them. States should instead consider increasing revenue through fairer means, including removing restrictions on spending and tax increases and putting in place more progressive tax systems.

Komala Ramachandra is a senior business and human rights researcher at Human Rights Watch.

Suggested citation: Komala Ramachandra, Abolish Extortionate Criminal Fines and Fees, JURIST – Professional Commentary, September 30, 2020, https://www.jurist.org/commentary/2020/09/komala-ramachandra-abolish-extortionate-criminal-fees/.

This article was prepared for publication by Akshita Tiwary, JURIST’s Staff Editor. Please direct any questions or comments to her at commentary@jurist.org