Adopting fair debt practices for fines and tariffs

Criminal justice fines and fees are a regressive, punitive measure that hits the most marginalized in our society first and hardest. They often create perverse incentives, by which municipalities seek to fund government operations through aggressive policing of modest infractions, often in a discriminatory fashion. Moreover, the practice of attempting to collect payment from individuals who may be unemployed, homeless, or simply unable to afford it are often fruitless and lead to wasted resources. In Bearden, the Supreme Court has held that it is “contrary to the fundamental fairness required by the Fourteenth Amendment” to incarcerate individuals for their failure to pay fines and fees. Yet, courts across the country routinely incarcerate individuals for failure to pay criminal justice debt without regard to the financial circumstances that may make payment impossible. In general, fines and fees should be avoided. If fines must be included, they should be fair, reasonable, and adjusted to meet the financial resources of the defendant. Debt collection practices should comply with the Fair Debt Collection Practices Act, which prohibits “abusive debt collection practices,” and there should be explicit prohibitions on predatory debt collection practices.

To facilitate this, local and federal governments should adopt policies that do the following:

• Set caps on criminal justice debt;
• Ensure that collection practices for criminal justice debts comply with the Fair Debt Collections Act;
• Provide a clear statutory right that allows indigent individuals to waive fees and fines related to their involvement in the justice system;
• Create a sliding scale for criminal justice fines;
• Eliminate the use of probation administered by for-profit probation companies to collect payments toward fines and fees;
• Eliminate the imposition of interest and additional fees on people who cannot afford to pay in full on sentencing day;
• Establish debt payment plans for the repayment of criminal justice debts; and
• Eliminate “pay to stay” policies in which prisons can charge formerly incarcerated individuals for the cost of room, board and medical care.