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A judge’s view: imposing fees on the poor

This is the tenth in a series of occasional commentaries on the judicial system from the perspective of a District Court judge. 

Judge Mel Dickstein

The riots that occurred in Ferguson, Missouri, after the police shooting of a black teenager were about more than the young man’s death. The civil-rights investigation that followed uncovered a system in Ferguson rank with the victimization of the poor by the criminal-justice system. The poor in Ferguson were fined for every conceivable reason, their fines were regularly doubled and tripled, and they were often forced to buy their way out of the system or face serious penal consequences. The fact that the poor in Ferguson were disproportionately people of color, and the police were disproportionately white, only made matters worse.

We’re not Ferguson, but we need to be vigilant so that what happened in Ferguson never happens here. We, too, have a system of fines and fees that would surprise some and mortify others. To understand, we have only to look at what happens in our courts on a daily basis.

Take, for example, “Cindy” as she steps up to the podium with her public defender to enter a plea of guilty to disorderly conduct and resisting arrest. She thinks she knows what is about to occur; she just wants to get this behind her, and get back to her daily life.

Cindy goes to the workhouse

Cindy is going to do five days of workhouse time with work release. She’ll also pay the minimum mandatory $50 fine, and a $78 surcharge automatically added to any fine imposed. Her conduct was unacceptable, of that there is no question.

But Cindy, who earns $10 per hour as a cashier, is in for a shock. She is about to find out about the additional fees she has to pay, which she may never have anticipated.

What people don’t generally understand is that the Minnesota Legislature has given counties the right to defray costs associated with correctional services by imposing fees on persons convicted of a crime. These fees are above and beyond any fine that is imposed. The statute says the fees must be reasonably related to the actual cost of the service, and must be related to the offender’s ability to pay. In short, the statute says that if a person can afford to pay for services, they should pay. If a person can’t afford to pay, they shouldn’t have extra fees imposed upon them.

The problem is that in practice the system frequently doesn’t distinguish between those able and unable to afford fees. For example, if Cindy has to go to the workhouse for five days (a sentence of 30 days with 25 days stayed for one year on condition she not engage in any similar conduct) she is assessed a workhouse booking fee of $30. She also has to pay a Correctional Service Fee of $150 to probation (reduced from $250 because Cindy’s income is below the poverty line). If Cindy is released during the day so that she can keep her job (returning to the workhouse each evening) she will also be assessed a fee of $20 per day — up to $100 for all five days. Cindy, who earns only $10 per hour, may be responsible for fines and fees totaling $408.

Unlike most people in the community who have larger incomes, Cindy has no money left over each month after she pays for food, clothing, shelter and some incidentals. Where should the $408 come from — should she skimp on food, give up her apartment, or do without the shoes or winter coat she desperately needs?

No one set out to make Cindy’s life more difficult, but it’s not clear that anyone gave consideration to Cindy’s plight, either. While five days in the workhouse and a $128 fine and surcharge is what Cindy brought upon herself by her conduct, the question remains whether it’s fair to pile fees on top of her fines — especially in light of the statutory requirement that the fees must be related to Cindy’s ability to pay.

Miguel struggles with the cost of work release

Cindy’s plight is not the only one that raises issues regarding how we fine and assess fees to the poor in our community who are convicted of misdemeanor offenses. “Miguel,” who has struggled with homelessness, has finally landed a $13-per-hour job, but his drinking results in a workhouse sentence of 30 days and an additional 60 days of electronic home monitoring.

The judge, aware of Miguel’s situation, finds that Miguel is eligible for work release so that he doesn’t lose his job. After Miguel pays his minimum mandatory fine of $50 and surcharge of $78 (he doesn’t technically qualify for the minimum mandatory fine because even at $13 per hour he earns too much, but the judge gives Miguel a break), he will still be responsible for his booking fee ($30), his correctional service fee ($250 or $150), his work release fee ($20 per day), and upon release from the workhouse an electronic home monitoring/work release fee ($20 per day). If Miguel works 20 of the 30 days he serves in the workhouse he will be assessed $400 dollars for the privilege.

And when Miguel comes out of the workhouse to serve his home monitoring with work release, he will likely incur fees of another $400. Miguel will also have to pay $30 for a statutory alcohol assessment fee, and a fee to the organization that administers the alcohol assessment. He may then have to pay fees associated with an alcohol treatment program that he may be required to enter. That means that separate from the alcohol assessment and treatment program, Miguel will be assessed county fees of approximately $958, and a court fine of at least $128.

Miguel, like Cindy, has virtually nothing left over each month after paying for rent and groceries, for vehicle insurance, gas and upkeep, clothing and incidentals. And it’s not as though Miguel is living the high life — he lives in a part of town known for substandard housing and crime. But the county has determined, as required by statute, that the fees imposed upon him are reasonably related to Miguel’s ability to pay.

These financial obligations may be enough to drive Miguel to drink — certainly, no one’s intent.

Deshawn pays for alcohol-related expenses

If a person like “Deshawn,” who has two kids and is working temp jobs for a staffing service, is charged with a first time DWI, there is an additional set of fees with which he must be concerned.

First-time offenders must pay the One Day DWI Program fee. This program is a well-intentioned effort to address a serious problem in our community of drinking and driving — one that cuts across all economic strata. The program normally costs $375. If a person is indigent — if they earn below the poverty line — they still have to pay $250. These fees are over and above the fines and sentence imposed upon them.

No court discretion

The fees imposed on the poor aren’t the subject of discussion in court. Fees are a part of the process over which no one involved in court has any control — not the public defenders, not the prosecutors, not even the judges. The Legislature has concluded that people who can afford it should pay fees for the services required by their conduct, a reasonable public policy. But it’s one thing to assess fees against those who can afford to pay them, and it’s quite another to assess fees against those who can’t.

The county can’t recover all of the fees imposed. Nevertheless it will likely set up a payment plan with Cindy, Miguel and Deshawn in an effort to do so — even though they have little ability to make the payments.

No one involved in the assessment of fees intends to create a system like that in Ferguson, which victimizes the poor. But we impose fees for a wide variety of services, giving little regard to the burdens it imposes on those who can’t afford it. That’s why we may wish to take a hard look at whom fees are assessed against, and make some important changes.

Our community will be better for it.

Mel Dickstein is a judge in Hennepin County District Court, where he handles a mix of civil and criminal cases. He is a former partner in the law firm Robins Kaplan.

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Comments (11)

Ah yes Judge!

You missed the one where they have to take a pay day lone to cover their expenses because of the fees, and now have to pay 20% + interest fees on the loan! The hits just keep coming!

The Trend Will Continue

As state and local governments privatize more corrections functions, the fees that get added on can only be expected to get more severe.

another idea....

We could cut judicial salaries to pay for the reduction in fines and fees?

As per usual - astute observations - + how about?

Have you ever gone out to the workhouse as a civilian visiting an inmate?
Horrible experience, shuffling in to a row of seats in front of a beat-up counter and
ugly bits of fiberglass panes so you can yell through a phone alongside a dozen or
more other visitors. And the prisoners are in the same predicament on the other side.

The people visiting inmates are the same people who will be providing support, comfort,
and guidance for the inmates once they are released. Instead of treating these visitors
as undesirables, we should be treating them like the most valued customers of a high-end
bank. Cookies, coffee, apple cider, comfortable chairs, and a decent and hospitable
environment would be a good investment. These visitors are going to have a greater
involvement with the inmates than all the probation officers in the world. Comfort, aid,
and other practical assistance on this side of the glass would go a lot further and be a lot cheaper
in avoiding recidivism.

And?

I see a problem but no solution. Do we not jail offenders? Do we not fine them? What are other states doing?

Because the Well Being of EVERYONE in the County

Depends on our judicial/penal system steering people away from the course that got them in trouble,...

WITHOUT causing them to lose hope in ways that lead to cynical, antisocial and often violent behavior,...

we raise taxes a few pennies on the rest of the citizens of the county,...

in order NOT to so severely weigh down those who are troubled and have gotten in trouble,...

that they give up trying to be productive citizens and become a drain on society,...

or become a continuing challenge to its safety and well being.

I agree, but...

What does that mean “to not severely weigh down” the troubled? Never fine them? Never prosecute them? Does this work?

I still don’t see a solution or even a path to a solution.

Never easy answers

The point was/is: The yearly cost to house a criminal is north of $31K per year. Perhaps spending $2-3K in the short term (as noted in comments above) will tilt the scale in the direction of non-repeat offender and or put the stressed/unmanageable situation in a more successful light. It also means more investment now could lead to more reward (lower costs) latter. Something one of our political parties hates to hear.

With you

I think I am with you on this. What punishment would our peers like to see applied to folks who clearly break the law?

Or do we just pat all non-violent offenders on the head, tell them to not do it again and send them back into society.

And then there is that never ending concept that tax payers should pay for everything, now to include housing prisoners when the prisoner can pay some of the cost as part of their punishment.

The answer is actually quite easy

We pay taxes. Our constitution give the government the right to levy taxes precisely so that we can pay for government services. We didn't build our CJ system with this way, these additional charges were added to make up for budget cuts. Everyone thought getting a few bucks off their county taxes was more important than paying for services.

Two things that I don't think have been mentioned yet: 1) No matter what kinds of "fees" you charge, you're probably not actually paying for services in the long run because the financial burden increases the rate of recidivism. The debt sabotages rehabilitation, and repeat offending ends up costing more that the fees pay for anyways. Furthermore, the administration and collection of all these additional fees probable eats up most of the budget. The fee end up paying for the imposition and collection of the fees, not cost of probation, incarceration, etc. etc. 2) This idea of creating additional fees and linking them to arrests and prosecutions is a primary way that corruption finds its way into the system. Corruption almost never decreases or controls cost. For in instance recall that judge out East that got convicted of sending kids to a privately owned facility in exchange for kickbacks. Once you establish these extraneous fines you create a place where individuals within the CJ system can extract bribes. A poor person facing several hundred dollars of "fees" just for being arrested will seriously consider paying an individual cop a hundred bucks to NOT be arrested. Once that kind of corruption takes hold it's almost impossible root out, ever.

Once stable and predictable feature of "small" guvments around globe is endemic corruption. Ironically, you get there by refusing to pay taxes for government.

Thank you for enlightening this reader

I cranked up my ancient computer this morning and read the Judge's expose...but do not let justice sit in the corner with nothing more than a dunce cap on.and .I do wonder, and hope too,how can you change such a system. you , Judge Mel Dickstein,who work within the system?

There's got to be more changing within the courts if these medieval practices are acceptable?

Thanks for one powerful indictment of as-is "law and order'.