The Cost of Justice: The Impact of Criminal Justice Financial Obligations on Individuals and Families

Introduction

Economic sanctions are the most common form of punishment levied by criminal justice systems in the United States.^[1] Also known as criminal justice financial obligations (hereafter “CJFOs”), these broadly include court costs, fees, fines, bail, bond, property forfeitures, and restitution associated with civil, traffic, and criminal proceedings. The focus of this article is on the court costs, fees, and fines associated with criminal and traffic proceedings. Upon a finding of guilt, the court can require defendants to pay:

• Court costs. Court costs are used to defray administrative expenses and may be charged regardless of the defendant’s use of court services.^[2] Those acquitted of charges may be responsible for fees associated with a court-appointed attorney.^[3]
• Court fees. Court fees are monetary charges imposed as reimbursement for specific court activities or programs, as well as litigation, supervision, or incarceration.
• Court fines. Court fines are monetary punishments intended to deter and punish the individual who has been found guilty.^[4] They can be mandatory, in which a fixed amount is codified in state statute or ordinance set by county boards, or discretionary, in which a judge decides how much to charge.^[5] Other court fines are discretionary and imposed by the judge within parameters provided in state statute or county board ordinance.

To gain a better understanding of how court costs, fees, and fines impact individuals and families around Illinois, researchers analyzed survey data collected by a legal aid organization and compared the findings to extant literature.

Legal Concerns with CJFOs and Indigency

Williams v. Illinois (1970) An extension of an individual’s prison term due to his/her ability to pay violates the 14th Amendment.

Tate v. Short (1971) Turning an individual’s unpaid fines into a jail term violates the 14th Amendment.

Bearden v. Georgia (1983) Courts cannot revoke probation for non-payment of fines without judicial inquiry into individual’s ability to pay and consideration of alternatives to imprisonment (known as a Bearden hearing), as long as the individual’s non-payment is not “willful.”

Increased Use of CJFOs

Traditionally, court operations are funded through a jurisdiction’s general tax revenue. While a partially “user-funded” system has long existed in the United States, the extent to which users (defendants or those convicted) finance the court system continues to increase,^[6] shifting the burden and dependency of operating costs from a tax base to individuals processed through the criminal justice system.^[7]

The cost shift began in the 1970s when “tough-on-crime” policies drove up rates of court use, incarceration, and correctional supervision,^[8] increasing operational consumption and requiring more financial resources. The strain on local criminal justice systems and operating budgets resulted in more widespread use of fees and fines to support court operations.^[9]

For example, in 1982, about 2.1 million individuals were under community supervision and 612,500 were incarcerated. In 2012, 6.9 million individuals were under correctional supervision and 2.2 million were incarcerated.^[10] Adjusted to reflect inflation through 2012, operations costs jumped from $84 billion to $265 billion dollars.^[11] The number of individuals fined also increased, from 12 percent of those incarcerated in 1986, to 37 percent in 2004.^[12]

Impact of CJFOs

While CJFOs are intended to punish wrongdoers, fund system activities, or deter future crime, those with more contact with the justice system – those with lower socioeconomic status and in predominately minority communities^[13] – are more likely to bear the burden of these direct and collateral costs. This creates a contradictory effect that disproportionately penalizes citizens for their poverty or the community they live in,^[14] adding to their cumulative disadvantage,^[15] perpetuating a cycle of criminal justice involvement.^[16]

Potential Court Sanctions

The inability to pay these CJFOs can result in the following court sanctions:

• Increased court costs, fees, or fines.
• Incarceration for failure to pay.
• Suspension of individuals’ driver’s license.
• Increased time on correctional supervision or unsuccessful termination from supervision.
• Interest accrual and/or additional monetary assessment by private debt collectors.^[17]
• Liens, wage garnishment, and tax rebate interception.^[18]
• Barriers to securing criminal records sealing or expungement.^[19]
• Subsidized commissary among incarcerated to pay jail or prison fees.^[20]

These sanctions can pull the already poverty-stricken further into debt and the criminal justice system. For example, technical violations of community supervision may be incurred for missing payments, lengthening the individuals criminal record in a way that may be used against them in future sentencing determinations. Taken together, unpaid CJFOs put these individuals at an increased risk for additional monetary penalties as well as incarceration for offenses that would not otherwise result in incarceration.^[21]

The increased imposition of these CJFOs at every point throughout the system weighs most heavily on poor, indigent, and minority individuals and communities.^[22] Racial disparities within the justice system also result in a disproportionate burden of system costs being placed on racial and ethnic minorities.^[23] This creates a cumulative disadvantage, further entrenching vulnerable people into a cycle of poverty and incarceration.

Potential Collateral Consequences

Criminal justice debt is unique in that it cannot be discharged through bankruptcy (11 U.S. Code § 523). Interest accrues on CJFO debts that go unpaid, regardless of whether the individual was convicted.^[24] Credit scores are impacted, which affects car and home ownership, and employment prospects (if employers use credit checks to screen applicants).^[25]

Families bear the brunt of reduced incomes when a member is removed from the work force or incarcerated. CJFOs can negatively impact an offender’s support network, with research indicating family members shoulder most court costs.^[26] In a survey of communities in Illinois and 13 other states, researchers found the average debt incurred from an individual’s incarceration was $13,607 and nearly half of families with an incarcerated member reported struggling to meet basic necessities such as food and housing.^[27]

CJFOs may result in these negative consequences, despite their association with increased employment prospects and social capital which can protect against criminal justice system involvement^[28]:

• Difficulties in gaining employment (e.g., poor credit, barriers to professional licensure).
• Inability to get to/from a job (e.g. driver’s license suspended due to nonpayment, affordability of other transportation options or insurance).
• Destabilization of families and communities (e.g. shifting financial burdens to family members, loss of labor while incarcerated, removing individuals from families and communities).
• Difficulties finding housing (e.g. poor credit, affordability).
• Damage to credit.
• Inability to meet child support obligations.^[29]

In some cases attempts to collect on individuals’ debts may end up costing government more than it would receive in actual recuperation and collection of those debts.^[30] Additionally, governments also contract with private debt collection agencies which authorize significant additional costs.^[31]

Illinois CJFO Practices

Illinois law caps discretionary fine amounts a judge can impose, with certain exceptions,^[32] at $25,000 for felonies, $2,500 for Class A misdemeanors, and $1,500 for all other misdemeanors (730 ILCS 5/5-4.5-40; 730 ILCS 5/5-4.5-55; 730 ILCS 5/5-4.5-60; 730 ILCS 5/5-4.5-65; 730 ILCS 5/5-4.5-75).^[33] Constitutional law prohibits detention of defendants for lack of payment except in cases of willful non-payment. Judges determine willful non-payment on a case-by-case basis (Ill. Const. art. I, § 14); however, research indicates a lack of clarity in defining “willful non-payment” and few procedures in place to determine an individual’s ability to pay.^[34]

The 2014 Illinois Access to Justice Act called for the creation of a Statutory Court Fee Task Force to review the state’s civil and criminal court proceedings and make recommendations for addressing issues identified related to CJFOs, within the larger scope of the Act’s initiative to facilitate and enhance equal access to justice for all people in Illinois.^[35] The Task Force found state, county boards, and county and municipal laws also allow for imposition of fines, fees, assessments, interest, surcharges, and restitution, resulting in penalties that are inconsistent across the state.^[36] For example, court filing fees vary by county, population size, and offense.^[37]

The county in Table 1, for example, charges a 15 percent penalty to accounts that have not made a payment within 90 days, and then transfers the debt to a private collections agency, which charges its own separate fees for debt collection.^[38] Per Illinois statute clerks of the court can charge late fees as follows: a five-percent late fee at 30 days late, 10 percent late fee at 45 days late, and a 15 percent late fee at 60 days late (725 ILCS 124A-10). Further, State’s Attorneys can charge a 30 percent late fee plus interest on defaulted CJFOs (730 ILCS 5/5-9-3), which draws an interest rate of nine-percent per year. These penalty fees and late fees can vary by county.^[39] While these financial obligations may seem small individually, together, it can add up to thousands of dollars and can account for a notable proportion of an individual’s overall income.^[40]

In addition to filing fees and state and local add-ons, individuals also may be charged for mandatory treatment programs and other supervision requirements.^[41] The Illinois Department of Corrections may seek monetary reimbursement for an individual’s incarceration, including programming and services provided within an institution (e.g. educational, medical, dental) per 730 ILCS 5/3-7-6(a). This cost is calculated by the Department of Corrections as the average per capita operations cost per day for all inmates based on the fiscal year immediately preceding the period of incarceration for which the rate is calculated per 730 ILCS 5/3-7-6(b).^[42] Appendix A provides a thorough—though not exhaustive—list of Illinois statutes on mandatory and discretionary court costs, fees, and fines, and common incarceration and probation fees.^[43]

Illinois laws offer some relief to those burdened with these financial obligations. Judges have the option to revoke or reduce fines, extend payment periods, and/or authorize payment plans per 730 ILCS 5/5-9-2.^[44] Individuals incarcerated prior to sentencing for a bail-eligible offense may receive a $5 credit for each day of their pre-sentence confinement to apply to their fines per 725 ILCS 5/110-14(a).^[45] Individuals also may request a payment plan as long as non-payment is not willful.^[46] However, these mechanisms are not available in every case and judicial discretion plays a large role.

Current Study

Methodology

Study Limitations

The findings presented here should be considered exploratory as there were several limitations to the data collected and analyzed.

First, the data may lack generalizability due to the convenient nature of the sample. Because the surveys were predominately provided to those seeking assistance for record sealing and expungement, the sample leaves out those not seeking such services. Moreover, the surveys were not uniformly provided to all persons seeking records sealing and expungement, limiting the data generalizability within this sub-population.

Second, in some instances, the survey did not offer discrete response categories for the questions. This made data analysis more challenging as a respondent could reasonably select more than one of the overlapping response categories.

Third, the information was self-reported. Omission and accuracy were a concern as individuals may not fully recall the information requested. This was particularly apparent when many could not recall exactly how much they owed the courts.

The Chicago Collaboration for Justice created a survey to examine collateral consequences of not paying CJFOs and the impact of CJFOs on individuals’ ability to meet basic needs. The Chicago Collaboration for Justice is a joint effort of the Chicago Appleseed Fund for Justice (a non-partisan research and advocacy organization made of pro bono professionals) and the Chicago Council of Lawyers (a public interest bar association), to provide legal assistance to underserved communities and individuals.^[47] The surveys were distributed at Cabrini Green Legal Aid record expungement and sealing events in 2017, held in the Chicago area, Champaign, and Peoria. Other networks also distributed the survey, but with low return.

The Illinois Criminal Justice Information Authority (ICJIA) analyzed the survey data collected by the Chicago Collaboration for Justice and Cabrini Green Legal Aid. The survey questions designed attempted to collect information on:

• Knowledge of CJFOs.
• Ability to pay.
• Court and attorney practices.
• Sanctions related to unpaid debt.
• Collateral consequences of unpaid debt.
• Impact of debt on individual and family needs.
• Demographics.

ICJIA researchers analyzed survey data in September 2017.

About the Sample

There was a total of 318 survey respondents, the majority of whom attended the record sealing and expungement events. Of the 318 respondents, 269 reported they had been (or are currently) required to fulfill these legal obligations, 23 reported they had not, and 22 respondents did not know if they had been required to pay anything. The final sample consisted of the 269 respondents who indicated that they had been required to fulfill CJFOs related to a criminal or traffic case.

Most respondents in the sample indicated their financial obligations were imposed by Champaign County (n=88), Cook County (n=73), and Peoria County (n=59) courts, which was likely related to the counties’ proximities to record seal and expungement events. A total of 72 percent of the sample reported accepting a plea bargain, consistent with general criminal case proceedings.

Seventy-nine percent of respondents (n=188) were Black and 51 percent of respondents were female (n=124). Respondents had a median age of 38 (mean=40). Forty-six percent of respondents were unemployed, employed as a temp, seasonal worker, had an occasional job, or worked part-time (n=108). A total of 67 percent of respondents reported they owned or rented an apartment, room, or house (n=161); 62 percent had one or more dependents (n=134); 31 percent had a high school diploma or GED (n=68), and 38 percent reported completing some college with no degree (n=84).

More than half of the sample reported making less than $15,000 per year (54 percent; n=128), below the federal poverty level for a family of two or more (Figure 1). This finding was consistent with research indicating those assessed court costs, fees, and fines frequently have difficulty paying what is required while ensuring their basic needs are met.^[48] Nationally, two-thirds of individuals reported their annual income was below $12,000 prior to jail detainment.^[49]

Figure 1

Annual Income of Respondents (N=237)

Data source: ICJIA analysis of Chicago Collaboration for Justice survey data.

Note: The survey question included categories that were not discrete (overlap in answers) or of equal size, which is generally best practice with regard to survey question creation and methodology.

Study Findings

Figures 3 and 4 display the results for whether respondents were provided an explanation of the CJFOs imposed upon them, including whether the individual was provided an explanation about the difference between fees and fines by any criminal justice personnel—the judge, public defender, state’s attorney, probation/parole officer, pre-trial officer, or private attorney in their cases—and whether criminal justice personnel inquired about their ability to pay. More than half of respondents reported they were not asked about their ability to pay (58 percent; n=157) and 58 percent reported they never had an explanation about the differences between fees and fines (n=155).

In Illinois, alternatives such as community service and fee waivers may be offered in lieu of court costs, fees, and fines for those who are unable to afford the CJFOs assessed. Of 253 respondents, 75 percent (n=190) indicated no one asked the judge for a waiver on their behalves and 75 percent (n=189) reported they were not offered community services hours in lieu of paying court costs, fees, or fines.

Figure 2

Number of Respondents Receiving Explanation of CJFOs (N=269)

Data source: ICJIA analysis of Chicago Collaboration for Justice survey data.

Figure 3

Number of Respondents Asked About Ability to Pay CJFOs (N=269)

Data source: ICJIA analysis of Chicago Collaboration for Justice survey data.

Of the 269 respondents, the most frequent offenses for which respondents were ordered to pay CJFOs were traffic violations (52 percent; n=140), followed by retail theft/theft (30 percent; n=80), and possession of a small amount of drugs (< 5 grams) (23 percent; n=63) (Figure 4).

Figure 4

Offenses Leading to Respondent Financial Obligations (N=269)

Data source: ICJIA analysis of Chicago Collaboration for Justice survey data.

Note: Individuals could respond to more than one offense type.

Individuals sampled were asked about their payment ability and behavior. Of the 199 respondents that answered the survey item, approximately half said they were able to make monthly payments (n=100), 33 percent (n=65) reported they were unable to pay any money toward the amounts imposed, and 17 percent (n=34) indicated they made irregular payments.

The Statutory Court Fee Task Force observed that the elaborate and confusing nature of legal financial obligations in Illinois can make it difficult for people to know how much they are assessed. Few people responded to this survey item about what the total amount assessed in financial obligations—and some included their restitution in this number. However, of the 148 respondents, 52 percent reported being assessed between $1 and $2,000 in financial obligations (n=77), 20 percent reported assessed between $2,001 and $4,000 (n=29), 5 percent reported assessed between $4,001 and $6,000 (n=10), and 6 percent indicated they were assessed more than $6,000 (n=9). Twenty percent of the 148 respondents reported they did not know what they were assessed.

Individuals also may refuse to pay because they disagree with the reason for or equity in their assessments.^[50] Research indicates individuals are more likely to pay if they know how their fees and fines are used by the courts (e.g. to support victims, programs, specific costs) or if individuals view the process or procedures to determine payments as fair.^[51] In a study of 122 probationers in Pennsylvania, respondents tended to have a better understanding of restitution and how sentences are set, but little understanding of how the amounts of court costs, fees, and fines are determined. This study supports the idea that individuals refuse to pay due to perceived inequity and lack of understanding about how the courts will use the funds collected; however, the most common reason for non-payment remained financial inability.^[52]

Sixty-two percent of respondents indicated they had to borrow money from family or friends to help pay their CJFOs (n=154) and 27 percent reported they used a title or pay day loan to make their payments (n=66). Most respondents indicated they had to choose between buying groceries, paying rent/mortgage, and/or paying utility bills and paying their CJFOs (Figure 5).

Figure 5

Percentage of Respondents Forgoing Certain Necessities to Pay CJFOs

Data source: ICJIA analysis of Chicago Collaboration for Justice survey data.

The findings related to individuals’ inability to pay obligations, as well as borrowing money from family or friends to help pay them, is consistent with the current research. Most of the sampled respondents reported incomes of less than $15,000 and almost half of those respondents worked only a part-time job, were unemployed, or seasonally/temporarily employed. National research indicates individuals re-entering the community after a period of incarceration have difficulty finding employment.^[53] With little or no income, this population relies heavily on their families for support.^[54]

Consequences of Non-Payment

Of the 47 respondents who reported skipping a court hearing because they were falling behind on paying their scheduled payments (19 percent), 26 of the 47 respondents indicated a warrant was issued for their arrest (57 percent).

For the total sample, respondents also indicated the following due to non-payment:

• Their fines were increased (n=91).
• They received additional jail time (n=71)
• Their driver’s license was suspended (n=61).
• Their supervision officer imposed a violation of supervision (n=72).
• Their supervision was termed unsuccessful (n=82).
• Their supervision terms were extended (n=73).

These consequences for non-payment result in barriers to payment compliance and meaningful employment and housing (as the result of poor credit scores), as well as the increased likelihood of future involvement with the criminal justice system through extended community supervision or re-incarceration.^[55] Individuals coming out of jail or prison also may have a harder time finding employment and lack access to job training, modern technology, and social networks to help them find employment.^[56] When an individual’s license is suspended due to late or missed payments of criminal justice financial obligations, it can make it difficult for individuals to seek or maintain employment.^[57] Fining someone who cannot pay may not result in the collection of the money owed, but will result in greater debt for the individual, and more money spent on collecting on those debts.^[58] Even employed individuals may owe up to 60 percent of their annual income to pay their court debts.^[59]

Respondents indicated other negative consequences because of their non-payments and falling behind on payments (Figure 6). Respondents reported trouble reinstating their driver’s licenses (n=83), sealing or expunging records (n=60), and obtaining professional licenses (n=49).

Figure 6

Consequences of CJFO Non-Payment

Data source: ICJIA analysis of Chicago Collaboration for Justice survey data.

Note: *These questions were missing a sufficient amount of data and should not be compared to other questions. These two questions were added after the Champaign sealing and expungement summit based on concerns raised regarding credit scores and collections in Champaign.

Conclusion

The collateral consequences of CJFOs, including a cycle of poverty, sanctions, and incarceration, threaten the very structures that protect against criminal activity, such as employment, housing, and healthy relationships.

Findings of this analysis were consistent with conclusions made in the 2016 Statutory Court Fee Task Force Final Report. The Illinois court system—like others across the United States—heavily relies on an excessively complicated court assessment system that disproportionately impacts low- and moderate-income individuals and communities of color.^[60]

In this study, more than half of the respondents sampled reported earning less than $15,000 in annual income. They also reported having to choose between basic needs, such as buying food/groceries, paying rent or mortgage, and keeping up with utility bills, and paying their court debt. About 79 percent of survey respondents were Black, just more than half were women, and most were unemployed or underemployed. More than 60 percent of respondents reported borrowing money from family and/or friends to pay their obligations and 37 percent of respondents indicated their fines increased due to late or non-payment. Although the study’s sample was limited, the findings reflected those reported in related literature.

Implications for Policy and Practice

The following policies and practices encourage an equitable and fair imposition of CJFOs that support both the criminal justice system and the system user.

Increase clarity and transparency about court costs, fees, and fines, and restitution. Upon sentencing, a judge’s explanation of court costs, fees, fines, and restitution would be helpful, as well as an overview of an itemized list of what the individual will owe. Explanations help individuals better understand what they are being asked to pay and why, while encouraging accountability of the offender and transparency and equity of the system actors in court cost, fee, and fine determinations.^[61]

Encourage statewide conformity, consistency, and uniformity in court assessments. This would decrease the disparity in CJFOs individually imposed in counties across the state while creating a standard payment schedule.^[62]

Provide access to more payment alternatives. Encourage use of community service, already allowed within Illinois state statute 720 ILCS 550/10.3(e), when payment will be difficult for the individual. Illinois statute indicates that every hour of community or public service performed is equivalent to four dollars of CJFOs assessed.

Define the relationship between each type of assessment and their rationales. This means making sure costs, fees, and fines assessed are directly related to court operation.^[63]

Decrease reliance on system users to support court operation. Research indicates relying on a user-funded system is ineffective at raising revenue to support the system.^[64]

Allow for reasonable and fair payment plans. This can be achieved through an income-based repayment plan similar to a student loan repayment process (e.g. balance of student loan is waived after a certain number of payments).^[65] Other options are “day fines,” commonly used in Latin America and Europe, in which the appropriate fine is determined by legislatures and courts based on how many “units” of punishment are associated with specific offenses and then calculated according to a person’s income.^[66]

Create more concrete and routine procedures for judges making ability-to-pay determinations. This includes eliciting financial information from those convicted and inquiring about their ability to pay. This can help create more consistent use of Bearden hearings as part of the process of assessing court costs, fees, and fines for indigent system users.^[67]