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GUEST BLOG: Understanding the impact of criminal administrative fees, and how solutions like SB 144 can move California toward a more equitable future

By Stephanie Campos-Bui

I am a supervising attorney in the Policy Advocacy Clinic at UC Berkeley School of Law, where we have been researching fines and fees in the justice system since 2013.

In 2017, we worked closely with Senator Mitchell and then-Senator Lara on Senate Bill 190, co-sponsored by Western Center, Youth Justice Coalition, and PolicyLink, among others, which repealed county authority to charge juvenile fees to families of young people in California. One year into implementation of SB 190, all 58 counties have stopped charging juvenile fees.

Given what we learned about juvenile fees, we are now supporting research efforts on fee assessment and collection practices in the criminal (adult) justice system. We have already observed similar findings to those in the juvenile space.

The majority of fees currently charged to people who come into contact with the justice system were authorized during the 1980s and 90s during the War on Drugs, and when the state faced a multi-billion-dollar deficit — the Legislature turned to fine and fee revenue to fill funding holes.

As a result, the existing fee scheme in California is wide-reaching and overly complex. At nearly every point in the criminal legal process, California state law authorizes counties to charge fees. From booking and arrest, representation by a public defender, to court-ordered programs and probation supervision, an individual can face a host of fees, including for collection. Counties also have discretion on the amount charged, so practices vary widely across California. In San Diego County, an adult on probation for five years can be charged almost $12,000, but just miles over in neighboring Imperial County, they would be charged $1,700.

To protect individuals against excessive fees, state law allows, but does not mandate, counties to consider an individual’s income and resources before assessing fees. In many instances, counties do not conduct meaningful ability-to-pay determinations or any determinations at all, leaving individuals with bills they cannot afford and will never pay.

We saw this in the recent Court of Appeals decision, People v. Duenas, in which Western Center was involved on behalf of the defendant, Duenas. In that case, LA County failed to assess whether a single mother, Velia Duenas, could pay the fines and fees imposed against her. In addition to finding the county in violation of due process under the United States and California Constitution, the court recognized that “…imposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive.”

Our ongoing research has shown that the snowball effect of fees can cause significant economic and social harm, while generating low revenue. Fees can quickly add up to thousands of dollars, and once imposed, can become civil judgments, subjecting individuals to tax intercepts and wage garnishments, which impacts credit scores and limits access to stable employment, housing, education, and public benefits. A survey conducted by the Ella Baker Center for Human Rights found that the average debt for fines and fees was $13,607.

According to a report by the White House Council of Economic Advisers, people sometimes turn to underground communities or criminal activity to manage the financial strain of high outstanding fees. Studies have also found that criminal justice debt correlates with a greater likelihood of an individual returning to prison. Those negative outcomes not only harm public safety, but also makes reentry into society much harder.

Unsurprisingly, all of this disproportionately harms low-income people and people of color. Due to over-policing and targeted policing in communities of color, Black and Brown people are punished more frequently and harshly at a variety of discretion points, which leads to higher fee burdens.

Theoretically, fees are intended to help local jurisdictions recoup costs associated with the justice system. Yet counties often recover only a small proportion of what they assess. In Alameda County, the rate of collection on probation supervision fees during 2017 was 4%.  In San Francisco, the collections rate for probation fees in 2016 was 9%.

Such low return rates are not a result of lax collection efforts, but because most system-involved individuals are low-income and cannot afford to pay the fees. For example, in Humboldt County, eighty-four percent of people on probation had a monthly income of less than $1,000.

Additionally, counties spend significant resources trying to assess and collect fees. Records from LA County showed that in fiscal year 2017-18, the County spent $3.9 million to collect $3.4 million in probation fees, resulting in a loss of half a million dollars. Even in counties where collection costs don’t exceed revenue, the resources put toward collection efforts—both within county and to private agencies—do not result in significant returns. And fees are not just costly, they also crowd out spending on positive social goods like healthcare and education. The lack of investment in those areas imposes harm over time, prolongs and exacerbates poverty, and generates costs to families, communities, and society.

The good news is that we have already seen reform across the state. Los Angeles County eliminated its public defender registration fee in 2017 after recognizing the fee’s potential to dissuade people from using their constitutionally-guaranteed right to counsel. San Francisco County eliminated 12 criminal administrative fees and penalties in June 2018, discharging $32 million, and Alameda County ended the assessment and collection of five administrative fees in November 2018, discharging $43 million.

Statewide, SB 190 ended juvenile fee assessments as of January 1, 2018, and 36 of 58 counties opted to go beyond the requirements of the law by also ending collection on over $236 million in outstanding fees, which underscores the commitment counties have to doing right by the populations they serve.

This year, Senate Bill 144, co-sponsored by Western Center, ACLU California, East Bay Community Law Center, PolicyLink, Anti-Recidivism Coalition, Youth Justice Coalition, and more, builds on these reform efforts by tackling the array of fees and costs charged to people in the criminal justice system. The bill addresses fees charged for booking and arrest, representation by counsel, diversion and alternative programming, probation, court-ordered programs and classes, drug and alcohol testing, collection fees, and civil assessments. The bill also seeks to end collection on unpaid fees and discharge and vacate outstanding debt.

The use of fines and fees has widened the reach and impact of the justice system to include more people, and has created long-lasting collateral consequences which ultimately serve the racially motivated underpinnings upon which our justice system was built—to control and marginalize black and brown communities. Fees and fines are not a reasonable answer for any of society’s problems — the criminal justice system should be funded by a more stable, predictable, and equitably-generated source of funding. SB 144 is a substantial step in that direction.