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