ABA issues new report capturing impact of privatization of fines

The American Bar Association Working Group on Building Public Trust in the American Justice System recently released a report providing a comprehensive look at the effect of the private industry growing out of the nation’s criminal justice system, noting that about 10 million low-income residents owe more than $50 billion in often unaffordable additional costs.

The figures reflect the increased prevalence of user fees throughout the criminal justice system, and the degree to which those fees are charged by private companies, often for profit. Court fines and fees are compounded by supervision fees for both pretrial and post-sentence supervision. These fees balloon as private companies add revenue-enhancing requirements such as courses, regular drug and alcohol testing, counseling, periodic background checks and electronic monitoring.

The report, “Privatization of Services in the Criminal Justice System,” represents a comprehensive overview of the role private companies play throughout the criminal justice system and how they affect low-income individuals moving through the system. The report builds upon the “Ten Guidelines on Court Fines and Fees,” which were adopted as policy by the ABA House of Delegates in 2018.

The guidelines are intended to “provide practical direction for government officials and policymakers” so that the criminal justice system, particularly for relatively minor offenses, “does not punish people for the ‘crime’ of being poor.” They stress the “amount imposed, if any, should never be greater than the ability to pay or more than the actual cost of the service provided.”

“No one should face harsher punishment in the U.S. criminal justice system merely because they are poor,” ABA President Judy Perry Martinez said. “Yet individuals are routinely charged numerous fees by private companies while working to resolve even minor criminal cases. These fees often further entrench poor individuals in poverty and foster distrust in the criminal justice system while unfairly prolonging involvement in it. The legal profession must acknowledge this impact and prioritize reforming, if not doing away with, these systems that earn profit on the backs of our nation’s poor.”

The report cites numerous examples, including:

• In 2015, police pulled over South Carolina resident Antonio G. for failing to use a turn signal, arrested him and took him to the local jail. The next day, his mother posted the $2,100 bail and the judge ordered, as a condition of his release on bail, that he wear and pay for an electronic monitoring device. The for-profit company that provided the monitor charged a set-up fee of $179.50 and $9.25 per day, or nearly $300 per month.

• The cost of drug tests can be as little as $12 or as much as $80 or more for lab-confirmed results. At $25 per test, an individual ordered to test once a week during a 12-month term of probation will incur costs of over $1,250 for drug tests alone.

• In about 40 Illinois counties, bad-check writers, in addition to restitution, must pay an administrative fee of $25 to $35 and a fee of $125 to $175 for a “financial accountability” class. In addition, there are fees for enrolling in a payment plan or rescheduling a missed class. As a result, someone who bounces a check for as little as $5 can end up paying as much as $300.

“Our criminal justice system should prioritize public safety,” Rob Weiner, chair of the working group, said. “The fees in the criminal justice system disproportionately harm minority communities and, particularly when driven by profit, fuel the distrust these communities feel toward that system. We must take steps to eliminate these fees, ensure that all programs are equally accessible to those who need them and guarantee that nobody is trapped in the criminal justice system by virtue of inability to pay.”

The report represents the views of the working group and has not been approved by the ABA House of Delegates or the Board of Governors.