ABA report criticizes fines and fees system in New Mexico's courts

Nearly three years after announcing a national initiative to tackle pretrial justice issues, the public defense group of the American Bar Association issued a report Thursday critical of how New Mexico treats indigent defendants facing low-level charges, finding that too often they are assessed fines and fees they cannot afford and then jailed for their inability to pay.

The report, “Punishing the Poor: An Assessment of the Administration of Fines and Fees in New Mexico Misdemeanor Courts,” found that the Ten Guidelines on Court Fines and Fees adopted by the ABA in 2018 is widely ignored, and urges New Mexico state and court leaders to revise court procedures “consistent with ABA policy.” Specifically, recommendations include eliminating harmful fees, reducing the use of bench warrants and permitting alternative payments that fully consider the individual circumstances of each defendant.

The ABA report, released by the Standing Committee on Legal Aid and Indigent Defense (SCLAID, www.americanbar.org/groups/legal_aid_indigent_defense), is part of a larger effort of national partners, funded by the Houston-based Arnold Ventures. Launched in 2019, the National Partnership for Pretrial Justice includes more than 30 research, technical assistance, policy and advocacy organizations that work to advance pretrial justice nationally and operate in more than 35 states across the country.

Specifically, the cited shortcomings in the New Mexico report included:

• New Mexico courts assess a wide variety of fees, not just upon conviction, but also pretrial, for supervision, and in connection with bench warrants. Many of these are “user fees,” which charge defendants for the administrative court costs, contrary to ABA guidelines.

• New Mexico rules do not provide for timely assessment of ability to pay, nor do they provide adequate opportunities for reductions or waivers based on substantial hardship. The report recommends revising these procedures to ensure disclosure of fees and prompt consideration of ability to pay.

• Current “ability to pay” assessments only allow an individual to adjust payment plans, usually to make smaller monthly payments for longer periods, which typically increases opportunities for failure to pay and extends the individual’s involvement with the criminal justice system. ABA guidelines urge that courts ensure that those for whom payment would cause substantial hardship have access to waiver or reduction of fees.

• Bench warrants are routinely issued for any failure to show up in court. In addition to the defendant being subject to arrest, an individual is charged a $100 fee each time a warrant is issued and his or her driver’s license often is suspended. The report points out that this cycle exacerbates the burdens on indigent defendants and interrupts their ability to maintain a job that would allow them to pay these fees in the first place.

The report draws from data over a four-year period and includes a case study of individuals who were arraigned in a Bernalillo County (Albuquerque) Metro Court during a one-week period in 2017. That showed that 93% “paid” their fines and fees exclusively through incarceration, while only 3% actually paid their fines and fees in full. A similar one-week study of 2021 cases showed that incarceration remains the dominant form of “payment” (73% of individuals satisfied at least a portion of their fines and fees with jail time), while a similarly small percentage of individuals (4%) paid their fines and fees in full. Thus, in practice, New Mexico’s fines and fees system winds up depriving people of liberty while also costing the state more money through arrests and incarceration.

The study is part of comprehensive ABA efforts for several years that have included educational programs and support of federal legislation to incentivize states to end the use of driver’s license suspensions as a punishment for nonpayment of fines. In 2017, for instance, the policymaking ABA House of Delegates (HOD) urged state and local governments to adopt pretrial justice policies that do not punish defendants because of their economic status.

The report notes that the findings have not been reviewed nor approved by the HOD or the ABA Board of Governors and should not be construed as representing the position of the ABA or any of its entities.