What Is Wrong with Monetary Sanctions? Directions for Policy, Practice, and Research
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What Is Wrong with Monetary Sanctions? Directions for Policy, Practice, and Research Br i t ta n y Fr iedm a n , A le x es H a r r is, Be t h M. Huebn er , K a r in D. M a rt in , Beck y Pe t t i t, Sa r a h K.S. Sh a n non , a n d Brya n L. Sy k es Monetary sanctions are an integral and increasingly debated feature of the American criminal legal system. Emerging research, including that featured in this volume, offers important insight into the law governing monetary sanctions, how they are levied, and how their imposition affects inequality. Monetary sanctions are assessed for a wide range of contacts with the criminal legal system ranging from felony convictions to alleged traffic violations with important variability in law and practice across states. These differences allow for the identification of features of law, policy, and practice that differentially shape access to justice and equality before the law. Common practices undermine individuals’ rights and fuel inequality in the effects of unpaid monetary sanctions. These observations lead us to offer a number of specific recommendations to improve the administration of justice, mitigate some of the most harmful effects of monetary sanctions, and advance future research. Keywords: monetary sanctions, LFOs, policy, abolition, data, fines and fees Brittany Friedman is an assistant professor of sociology at the University of Southern California, United States. Alexes Harris is Presidential Term Professor of Sociology at University of Washington, United States. Beth M. Huebner is a professor in the Department of Criminology and Criminal Justice at the University of Missouri-St. Louis, United States. United States. Karin D. Martin is assistant professor at the Daniel J. Evans School of Public Policy and Governance at the University of Washington, United States. Becky Pettit is the Barbara Pierce Bush Regents Professor of Liberal Arts in Sociology at the University of Texas at Austin, United States, where she is also a faculty affiliate of the Population Research Center. Sarah K.S. Shannon is an associate professor of sociology at the University of Georgia, United States. Bryan L. Sykes is an Inclusive Excellence Term Chair Professor, Chancellor’s Fellow, and an Associate Professor in the Department of Criminology, Law and Society (and, by courtesy, Sociology and Public Health) at the University of California, Irvine, United States. © 2022 Russell Sage Foundation. Friedman, Brittany, Alexes Harris, Beth M. Huebner, Karin D. Martin, Becky Pet- tit, Sarah K.S. Shannon, and Bryan L. Sykes. 2022. “What Is Wrong with Monetary Sanctions? Directions for Policy, Practice, and Research.” RSF: The Russell Sage Foundation Journal of the Social Sciences 8(1): 221–43. DOI: 10.7758/RSF.2022.8.1.10 This research was funded by a grant to the University of Washington from Arnold Ventures (Alexes Harris, PI). We thank the faculty and graduate student collaborators of the Multi-State Study of Monetary Sanctions for their intellectual contributions to the project. Partial support for this research came from a Eunice Kennedy Shriver National Institute of Child Health and Human Development research infrastructure grant, P2CHD042828, to the Center for Studies in Demography and Ecology at the University of Washington. This re- search was also supported by grant, P2CHD042849, Population Research Center, awarded to the Population Research Center at the University of Texas at Austin by the Eunice Kennedy Shriver National Institute of Child Health and Human Development. The content is solely the responsibility of the authors and does not necessarily represent the official views of the National Institutes of Health. Authorship is alphabetical. Direct correspondence to: Becky Pettit, at bpettit@utexas.edu, Department of Sociology, University of Texas at Austin, United States. Open Access Policy: RSF: The Russell Sage Foundation Journal of the Social Sciences is an open access journal. This article is published under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported Li- cense.
222 state mon eta ry sa nctions a n d the costs of the cr imina l lega l system
“[T]he moderate reform would be make it fair. twenty-five states that could provide at least
The better reform would be get rid of it.” partial data about the amounts owed (Ham-
mons 2021). In just three states, the amount of
—California Attorney
outstanding debt increased by $1.9 billion be-
Monetary sanctions are an integral and increas- tween 2012 and 2018 (Menendez et al. 2019). At
ingly debated feature of the American criminal the federal level, $100 billion of unpaid restitu-
legal system. Tens of millions of people each tion has been deemed uncollectible due to de-
year are assessed fines, fees, and other costs fendants’ inability to pay (GAO 2018).
stemming from legal involvement triggered by Monetary sanctions centralize money as a
traffic stops to felony convictions. Policing key determinant of just outcomes, including
agencies, criminal courts, and probation and proportionality, finality, and specificity in pun-
parole agencies often assess monetary sanc- ishment. Existing patterns of economic in-
tions and, along with private collection agen- equality in the United States, including racial
cies in some states, collect them. The wide- disparities in income and wealth, draw atten-
spread use of monetary sanctions as a form of tion to how monetary sanctions undermine the
punishment for criminal offenses has gener- premise of equality before the law. Monetary
ated billions of dollars in revenue while gener- sanctions allow people with financial means to
ating a massive amount of debt among those resolve debts, fulfill sentences, and thereby ab-
unable to pay. solve themselves of criminal wrongdoing. At
Monetary sanctions are often characterized the same time, unpaid monetary sanctions con-
as a less punitive sanction than other forms of tribute to extended system involvement and le-
punishment, such as incarceration (Greene gal entanglements (Martin, Spencer-Suarez,
1988; Morris and Tonry 1991; Petersilia 1999; and Kirk 2022, this volume) that uniquely dis-
Tonry and Lynch 1996). Nora Demleitner (2005) advantage certain subgroups of the population
argues that monetary sanctions are an integral on the basis of ability to pay (Bing, Pettit, and
part of community reintegration for people in- Slavinski 2022, this volume; Sanchez et al. 2022,
volved in the criminal legal system, writing that this volume; Stewart et al. 2022, this volume;
they: “allow—and even require—individuals to Sykes et al. 2022, this volume; Harris 2016; DOJ
be employed, pay fines and make restitution, 2015). The Ferguson Commission report con-
pay taxes, and assist their families. Such de- cluded that legal financial obligations were ex-
mands are crucial to allowing them to regain ploitative and “disproportionately harmed de-
their place in society” (Demleitner 2005, 346). fendants with low incomes” (Ferguson
Jurisdictions across the United States rely on Commission 2015, 93).
revenue from monetary sanctions to fund a In this article, we consider how features of
wide variety of justice and non–justice related law, policy, and practice across states, and
purposes, including courts and other govern- within them, shape just outcomes and equality
ment operations (Sances and You 2017; Martin before the law. Emerging research, including
2018; Pacewicz and Robinson 2020). that featured in this double issue, offers impor-
Research shows, however, that large num- tant insight into the law governing monetary
bers of people are unable to pay their fines and sanctions, how monetary sanctions are levied,
fees, and courts may be paying more in at- and how their imposition concentrates their
tempts to collect or sanction nonpayment than negative impacts especially among low-income
they will ever generate as revenue (Menendez individuals and people of color. We compare
et al. 2019). Some 6 percent of adults in the the policies and practices across and within
United States report debt from court costs or eight states, drawing attention to variability in
legal fees, and that number rises to 20 percent monetary sanctions. This variability helps il-
of people with an immediate family member in lustrate how monetary sanctions shape legal
jail or prison (Federal Reserve 2020). At the outcomes and their consequences. The design
state level, a recent analysis finds that total of monetary sanctions and common practices
court debt is at least $27.6 billion. Importantly, undermine individuals’ rights and fuel inequal-
this analysis draws on data only from the ity in the effects of penal debt. These observa-
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciencesw h at is w rong w ith moneta ry sa nctions? 223
Table 1. Number and Rate of Adults Under Correctional Supervision, Study States, 2014
Adults on Community Adults in
Probation or Supervision Prison or Incarceration
State Parole Rate Local Jail Rate
California 382,600 1,280 207,100 690
Georgia 491,800 6,430 91,000 1,190
Illinois 151,800 1,530 67,200 680
Minnesota 104,300 2,490 16,200 390
Missouri 65,800 1,400 43,700 930
New York 149,100 960 77,500 500
Texas 496,900 2,480 219,100 1,090
Washington 104,000 1,890 30,900 560
Sampled states total/average 1,946,300 2,308 752,700 754
U.S. total/average 4,708,100 1,910 2,188,000 890
Source: Authors’ tabulation based on Kaeble et al. 2016.
Note: Rates per hundred thousand adult residents.
tions lead us to offer a number of specific rec- fairness in case outcomes. Throughout this ar-
ommendations to mitigate some of the most ticle, we summarize and consider implications
harmful effects of monetary sanctions and ad- from an eight-state study of monetary sanctions
vance future research. (for methods and aims, see Harris, Pattillo, and
Sykes 2022, this volume). Table 1 shows that
H ow M o n e ta ry S a n c t i o n s fully one-third (34 percent) of adults incarcer-
T h wa r t J u s t O u tc o m e s ated in prisons and jails and more than two-
Equality under the law is axiomatic to the U.S. fifths (41 percent) of adults under community-
criminal legal system. Although social and eco- based supervision in the United States were in
nomic characteristics should not determine these eight states in 2014. California, Illinois,
justice outcomes, ample evidence reveals how Minnesota, New York, and Washington had in-
factors such as race, gender, and wealth can carceration rates below the U.S. average; Geor-
substantially affect whether and how people gia, Missouri, and Texas had rates above it.
come into contact with the criminal legal sys- Whereas roughly one in 256 adults in Minne-
tem and the impact of that contact on people’s sota was incarcerated in 2014, Georgia incarcer-
lives (Miethe and Moore 1985; Shannon et al. ated roughly one in eighty-four.
2017). In the United States, the connections be- Table 1 further shows variability in exposure
tween race, poverty, criminalized behavior, and to probation and parole. In Missouri, 65,800
punishment are intractable (Wacquant 2009) adults were under the supervision of probation
just as the connections between race, poverty, and parole agencies, also termed community
and policing are well established (Miller 2008; supervision, relative to nearly a half a million
Stuart 2016). Because they directly bear on in both Georgia and Texas. The rate of commu-
wealth, monetary sanctions reify and exacer- nity supervision was lowest in New York, where
bate racial inequalities in the criminal legal sys- 960 per hundred thousand were on probation
tem while undermining equality before the law or parole, and highest in Georgia, where 6,430
and fairness in outcomes. per hundred thousand—more than 6 percent
of the adult population—were under the sur-
Unequal Exposure veillance of probation and parole agencies.
Exactly how and how many people are brought Three of the states (Georgia, Minnesota, and
into the criminal legal system varies dramati- Texas) had parole and probation rates above
cally across states and provides leverage to un- the U.S. average. Five had rates below the aver-
derstand how monetary sanctions influence age.
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciences224 state mon eta ry sa nctions a n d the costs of the cr imina l lega l system
Traffic stops and other misdemeanors that Uneven Assessment
do not involve jail time are the modal form of The United States has no single coherent set
criminal legal contact (Natapoff 2018). Annu- of laws, policies, or practices guiding the im-
ally, tens of millions of people are pulled over position and enforcement of legal financial ob-
by police in traffic stops; approximately half of ligations. Thus legal fines and fees, much like
them receive a citation (Langton and Durose other forms of surveillance and punishment,
2013). Those citations commonly involve fines, differ in important ways across and within
fees, and other monetary sanctions (see also states (Harris, Evans, and Beckett 2010; Harris
Huebner and Giuffre 2022, this volume). In 2016; Martin et al. 2018). Sarah Shannon and
states where traffic tickets are classified as her colleagues (2020) find that across the eight
criminal offenses, such as Georgia, Missouri, states in this project, the process of punish-
and Texas, an unpaid ticket can further expose ment is highly varied across and within juris-
people to additional criminal legal sanctions. dictions, the process is not transparent, and
Even in states where traffic violations are not that noncompliance can precipitate significant
classified in criminal law, unpaid tickets can debt and extralegal consequences. Karin Mar-
incur a wide range of civil penalties. Unpaid tin and her colleagues (2018) show the ubiquity
criminal legal debt can precipitate police con- of statutes governing legal fines and fees
tact because courts issue warrants for failure to across states but also draw attention to differ-
pay or issue capias pro fine warrants for failure ences in the extent to which state statutes man-
to appear in court to address outstanding obli- date their imposition for felony and misde-
gations (Natapoff 2018). meanor cases, provide opportunities for
Although the number of people entering waivers, and offer alternative mechanisms of
America’s prisons and jails has declined in re- compliance.
cent years (Carson 2020), the number of people Differences in key legal provisions govern-
subject to legal fines and fees has grown. Esti- ing monetary sanctions across states can help
mates suggest that 66 percent of incarcerated explain variability in assessment and impact.
people have been sentenced to pay some Table 2 shows that all states, for example, re-
amount of money to the courts or other crimi- quire judges or other court personnel to assess
nal legal agencies, up from 25 percent in 1991 ability to pay before making a determination of
(Harris, Evans, and Beckett 2010, 1769). Millions willful noncompliance, enhancing monetary
more people are assessed fines and fees for traf- sanctions with additional penalties, or revok-
fic tickets and other misdemeanors that do not ing probation. Despite all states’ explicit recog-
involve jail time (Mayson and Stevenson 2020; nition of differential ability to pay, variability
Natapoff 2018), though these penalties may in when ability to pay is determined is signifi-
lead to further entanglements in the criminal cant. For example, only in Washington must
legal system (Huebner and Shannon 2022, this ability-to-pay legal financial obligations be con-
volume). The revenue incentive of monetary sidered at the time of sentencing. In other
sanctions plays a role in some traffic stops states, such as Texas and Missouri, the burden
(Brett 2020). The Department of Justice inves- rests on the person sentenced to request a hear-
tigation of the Ferguson (Missouri) Police De- ing regarding their ability to pay, which in Texas
partment provides a poignant example, finding they may only do thirty days after sentencing.
that the city finance director wrote to both the In still other states, the ability to pay may only
police chief and the city manager explicitly urg- become relevant after people default on their
ing more ticket writing for city income (DOJ legal financial obligations, at which time the
2015).1 court may need to determine whether nonpay-
1. Police chief: “unless ticket writing ramps up significantly before the end of the year, it will be hard to signifi-
cantly raise collections next year. . . . Given that we are looking at a substantial sales tax short fall, it’s not an
insignificant volume.” City manager: “Court fees are anticipated to rise about 7.5%. I did ask the Chief if he
thought the PD could deliver 10% increase. He indicated they could try.”
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciencesw h at is w rong w ith moneta ry sa nctions? 225
Table 2. Key Legal Provisions Governing Monetary Sanctions, by State
Gold
Standard for
Open Automated
State Ability to Pay Hearings Waivers Records Court Data
California No, but the presentencing Depends on the offense No No
report lists income/assets statute
Georgia No At judge’s discretion except for Yes No
mandatory fines, fees,
surcharges
Illinois No, mandatory post-conviction Full waivers for “assessments” Yes No
hearings to explain only and must apply within
nonpayment, cover balances, thirty days of sentencing
and requests for payment
Minnesota No Fines can be reduced to $50 Yes Yes
and judges can allow
community service in lieu of
the fine. Surcharges and law
library fees are not waivable
Missouri Must be granted if requested Allowed at judges’ discretion Yes No
New York Financial Hardship Hearings No Yes No
after failure to pay on time
Texas After thirty days Allowed at judges’ discretion Yes No
Washington At sentencing At judge’s discretion except for Yes Yes
mandatory fines and fees
Source: Authors’ tabulation.
ment was “willful” and thus subject to addi- eligibility to pay legal financial obligations (see
tional sanctions, as in Illinois (see Fernandes, also Harris et al. 2017).
Friedman, and Kirk 2022, this volume). Statutory allowances for waiving monetary
How ability to pay is determined also di- sanctions also vary widely by state. In Califor-
verges across states. Missouri state statutes in- nia, the ability to waive monetary sanctions de-
struct courts to consider the financial resources pends on the offense statute. In three states—
of a defendant when making judgments but a Illinois, New York, and Washington—the law
formal assessment or documentation is not does not allow for the waiver of mandatory sur-
required.2 Judges in Washington have the dis- charges, which are those states’ dominant form
cretion to assess whether people with legal fi- of monetary sanctions (see Martin, Spencer-
nancial obligations are capable of making min- Suarez, and Kirk 2022, this volume; Harris
imum monthly payments, but are still required 2016). In other states, judicial discretion is par-
to impose the mandatory minimum assess- amount, including Georgia, Minnesota, Mis-
ment of $500 per felony conviction. Texas has souri, and Texas. Nevertheless, some statutory
a clearly articulated standard for the determi- limits on such waivers are in place, with some
nation of indigence for court-appointed coun- statutes disallowing the waiver of some or all
sel, but judges retain discretion in determining fees (Georgia, Minnesota) and surcharges or
2. Revised Statutes of Missouri (RSMo), § 514.040.
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciences226 state mon eta ry sa nctions a n d the costs of the cr imina l lega l system
only allowing reduction of the fine to a certain legal fines and fees constitute a “shadow car-
amount (Minnesota). ceral state,” obscured in studies of conven-
tional sentencing and sanctioning processes
Disparate Impact yet with wide-ranging and enduring effects.
Variability in the design of monetary sanctions Table 3 displays how driving on a suspended
across states contributes to disparate experi- license can produce a disparate impact for peo-
ences with and effects of monetary sanctions. ple of varying economic means within each
Although legal financial obligations are rou- state. Specifically, the amount due at sentenc-
tinely imposed for misdemeanor and felony ing can vary from a low of $62 in Texas to a high
criminal legal involvement, important differ- of $3,480 in California. In Minnesota, a state
ences in how they are assessed, whether and to with a low incarceration rate (see table 1), has
what extent they are waived, and how collec- financial penalties for traffic offenses that can
tions are handled can lead to differential im- cost several hundreds of dollars. Variation also
pact and trigger a wide range of additional exists across states in the length of time it
sanctions. Common practices undermine indi- would take to pay off fines and fees for the
viduals’ rights and fuel inequality in the effects same charge. Assuming a payment plan of $50
of unpaid monetary sanctions. Differences in per month, it would take considerable time
the design and implementation of monetary to pay off debt associated with driving on a
sanctions across states and within them help suspended license in some states. For instance,
reveal how the negative impact of monetary in only four—Minnesota, Missouri, New York,
sanctions, and thus disproportionate punish- and Texas—would it take fewer than eighteen
ment, is concentrated among people with low months to pay off associated fines and fees.
incomes and, by extension, people of color Table 3 also reveals how fees, surcharges,
(Bing, Pettit, and Slavinski 2022, this volume) and other additional costs, including interest,
and people receiving public assistance (Sykes penalties, and administrative costs, can dra-
et al. 2022, this volume). Recent work further matically increase the total monetary sanctions
illustrates how the negative impacts of legal fi- owed. In California and Washington, the max-
nancial obligations are concentrated among imum fine is less than half of the maximum
immigrants (Sanchez et al. 2022, this volume) total assessment for driving on a suspended li-
and Native Americans (Stewart et al. 2022, this cense. In only two states, Missouri and New
volume). York, do fines constitute more than three-
Unpaid monetary sanctions can prompt ad- quarters of the maximum allowed assessment.
ditional criminal legal sanctions, incur added People with financial means may pay off mon-
financial penalties and surcharges, result in the etary sanctions on time and without penalty;
extension or revocation of probation, and lead yet people without such means face additional
to the issuance of arrest warrants which can costs that may extend criminal legal system in-
result in jail time (Harris 2016; Harris et al. 2017; volvement as well as force hard decisions on
Huebner and Shannon 2022, this volume; Ruh- whether to pay.
land, Homes, and Petkus 2020). In some states, Monetary sanctions amplify the disparities
unpaid legal fines and fees can also set in mo- in criminal legal system contact along the lines
tion civil penalties including the revocation of of race and wealth. Recent estimates show that
drivers’ licenses, wage or asset garnishment, the median wealth of white families is around
and even civil lawsuits (see Fernandes, Fried- $190,000, of African American families slightly
man, and Kirk 2022, this volume). Katherine more than $24,000, and of Latinx families about
Beckett and Naomi Murakawa (2012) highlight $36,100 (Federal Reserve 2020). The amount
how legal fines and fees are found in civil and available in liquid savings also differs signifi-
criminal systems, and Alexes Harris (2016) il- cantly by race. Whereas the typical Black or
lustrates the powerful role court clerks, or other Latinx family has less than $2,000, the typical
administrative personnel, play in the collection white family has more than $8,000 (Federal Re-
and enforcement of monetary sanctions. As a serve 2020). At the same time, African Ameri-
result, as Beckett and Murakawa (2012) suggest, cans are more likely than white Americans to
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciencesTable 3. Legal Financial Obligations and Time to Full Payment for Driving with a Suspended License
Total Paid, Months Percentage of
Amount due $50 Monthly, Until Fine to Total Bill
State Fine Fees Surcharges Added Charges at Sentencing On-Time Payments Paid (Maximums)
California $300–$1,000 $4, incarceration $60–200 12% interest, $1,310–$3,480 $1,310–$5,983 31–120 16.7%
costs $946–$2,276
Georgia $500–$1,000 $0 $405–$805 NA $905–$1,805 $905–$1,805 19–37 55.4%
Illinois $0–$2,500 $310, $85–$1,022.50 NA $395–$3,832.50 $395–$3,832.50 8–77 65.2%
incarceration
costs
Minnesota $200 $3–$13 $75 $0 $279.50–$289.50 $279.50–$289.50 6 69.0%
Missouri $150–$500 $12, $19.50–$44.50 $25 $206.50–$582.50 $206.50–$582.50 5–12 85.8%
incarceration
costs
New York $200–$500 $50 $83 NA $333–$633 $333–$633 7–13 79.0%
Texas $0–$500 $62.10 $0–$300 $25 $62.10–$862.10 $87.10–$887.10 2–18 56.4%
Washington $0–$1,000 $200 $250 $100 annual $450–$1,450 $686.85–$2,222.88 14–45 45.0%
Source: Authors’ tabulation based on Harris et al. 2017.
Note: NA, not available.228 state mon eta ry sa nctions a n d the costs of the cr imina l lega l system
be arrested and convicted and African Ameri- Unequal Punishment
can adults are 5.9 times as likely and Latinx Individuals who have the means to comply with
adults are 3.1 times as likely to be incarcerated monetary sanctions are, for many offenses,
than white adults (Carson 2020). Considering able to pay fines, fees, and other monetary
these factors together, along with the ubiquity sanctions with the court clerk in person, on-
of monetary sanctions for every offense and at line, or by mail and therefore have no further
every level of government, reveals the signifi- involvement with the court (see Bing, Pettit,
cant potential of criminal legal debt to worsen and Slavinski 2022, this volume). If someone is
problematic disparities. unable to pay, or needs accommodations, the
process can become complicated and lead to
Li v e d E x p e r i e n c e s w i t h additional sanctions. Failure to pay, comply
M o n e ta ry S a n c t i o n s with the payment schedule, or to attend court
How the design and practice of monetary sanc- dates can lead to additional legal, financial, and
tions shape fairness in outcomes and equality civil consequences. For those who are not able
before the law is further evident in ethno- to pay, the process of compliance with the law
graphic observations in courtrooms and inter- is difficult (Martin, Spencer-Suarez, and Kirk
views with people assessed monetary sanc- 2022, this volume). The sheer variability in pro-
tions, attorneys, judges, and other people cesses across states and within them is remark-
tasked with enforcing them. Our research able. Several study participants reported that
shows how the lack of a single coherent set of they were issued a warrant for failure to appear
laws, policies, or practices guiding the imposi- at a court date when they had not received doc-
tion and enforcement of monetary sanctions umentation of the court date.
generates significant variability in experiences Being unable to pay monetary sanctions can
with and effects of monetary sanctions across incur a wide range of “poverty penalties,” which
states and within them. Legal financial obliga- add costs, measured in time or money, simply
tions are routinely imposed for misdemeanor as a consequence of needing more money or
and felony criminal legal involvement across additional time to pay. For example, in Mis-
all eight states, yet important variations are ev- souri, individuals who do not have the means
ident in exposure to monetary sanctions and to comply with a financial sanction or who
states’ reliance on revenue generated from would like to contest the associated charge are
monetary sanctions.3 required to attend court for a hearing. Several
How monetary sanctions are assessed, study participants reported negotiating pay-
whether and to what extent they are waived, ment plans with the court so that they could
and how collections are handled have impor- spread the payment out over time. Some courts
tant consequences for people’s experiences allowed individuals to make their scheduled
with the criminal legal system. People who are payment online with a fee or with the clerk, if
assessed monetary sanctions and cannot pay the payment was made in advance of the next
them often experience the penal debt harshly, payment. One study participant reported that
undermining conceptualizations of monetary she had to pay to get a payment plan developed
sanctions as humanizing or an intermediate and then had to pay an additional fee for the
sanction (Greene 1988; Morris and Tonry 1991; show cause hearing: “Just to get any of the
Petersilia 1999; Tonry and Lynch 1996). In the judge’s time, for whatever it might be, you have
following section, we highlight several dimen- to pay them $22.50. If you can’t pay, then you
sions along which fairness in outcomes and have to go in front of the judge, where you have
equality before the law are compromised in to pay anyway.” Several participants reported
practice, as shown through the lived experi- having to make multiple trips to the courthouse
ences of the people we interviewed and court- to set up a payment plan and to submit pay-
rooms we observed. ment, and some courts levied fees for each
3. For details on revenues generated by fines, fees, and forfeitures, see table A1.
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciencesw h at is w rong w ith moneta ry sa nctions? 229
hearing (see Huebner and Giuffre 2022, this vol- ple who missed court in California, and many
ume). study participants had to travel over an hour in
In other courts, individuals were required to heavy traffic using public transportation to at-
attend a payment docket to check in with the tend. In Missouri, if individuals were unable to
judge and submit payment. A similar process attend court because they were incarcerated, a
is used in New York, where all courts have a warrant was still issued because no central data
regularly scheduled financial hardship hearing system tracks incarceration.
or full-time courtrooms dedicated to hearing Many study participants reported that they
payment issues. Illinois described this process did not have the information they needed to
as pay or appear, judges using discretion during successfully navigate the criminal legal system
the hearing to decide whether the person’s non- and manage their monetary sanctions. This
payment is willful. The challenges of staying up lack of information and related lack of transpar-
to date with payment becomes even more dif- ency of criminal legal processes is aggravated
ficult the longer a person is on a payment plan by poor, or proprietary, data management sys-
or if they move. tems. For example, in Missouri the state main-
Court observations reveal that individuals tains one data system for state courts that in-
were rarely put on warrant status because of cludes information on sentencing but often
failure to pay, but if individuals did not attend little information on the nature of the out-
court they were at risk of a warrant for failure standing debt. In addition, most costs are as-
to appear. In Texas courtrooms, we observed sessed at the municipal court level and each
judges routinely issuing capias pro fine war- court maintains its own system. During court
rants for failure to appear without any determi- observations, we rarely observed people re-
nation of ability to pay or willfulness. Field minded of the requirement to opt-in to the state
notes from one municipal court document the court reminder system, and even more rarely
determinations: “The judge . . . begins going observed people opting in. Thus individuals
down the list [of cases on the docket] rapid sentenced to debt often relied on contacting
fire. . . . everyone who showed up to see the the courts directly to get information, but the
clerk [has] their charges dismissed and every- court was rarely open, an issue of particular
one who didn’t [show up] gets issued a warrant concern for smaller municipal courts.
for failure to appear. ‘You gotta be here to win,’ The challenge of compliance with payment
[the judge] jokes as he stamps and signs the requirements was even more difficult for peo-
papers.” Another set of field notes documents ple who owed money in multiple jurisdictions.
a judge issuing thirteen capias pro fine war- A participant in Missouri owed money in sev-
rants for failure to appear in less than half an eral courts. When asked whether he knew how
hour.4 to find out how much he owed, he said, “No. I
We observed similar processes in California, don’t know. I know if you probably just call
Missouri, and New York. In California, for ex- down there and they tell you what all you owe
ample, the court presumes that people have ad- or whatever. If you got a lot of different munic-
equate transportation to the court, a key barrier ipalities, you gonna have to call a lot of different
for many study participants; however, these as- places, and you might call down to up there, up
sumptions matter for whether someone misses the street to the court building and somebody
court and has a failure to appear warrant is- might hang up on you, have you on hold for
sued. Warrants were regularly ordered for peo- twenty minutes, and then they answer the
4. Data from court records in Texas show that these are not isolated cases and indigency waivers are rarely
granted for minor misdemeanors (Class C) and that arrest warrants and satisfying fines and fees through time
served is common. At the county level, fewer than 1 percent of misdemeanor cases are granted an indigency
waiver, a particularly surprising finding in a state with a poverty rate well above the national average. An equally
small proportion of cases have collections waived. At the same time, on average across counties 8.8 percent of
cases are satisfied by jail credit and nearly half (47.2 percent) of cases in one county are satisfied by spending
time in jail (see also Pattillo and Kirk 2021).
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciences230 state mon eta ry sa nctions a n d the costs of the cr imina l lega l system
phone and hang up. So you gotta call back and Multiple system involvement—such as hav-
do it all over again.” ing child-support obligations in addition to
Even people who are trying to satisfy mon- criminal legal debt—can further complicate
etary sanctions often encounter unarticulated system involvement and incur additional costs.
and unanticipated costs associated with com- Several people we spoke with were jailed for
pliance. Online payment vendors across Illinois failure to pay either child support or criminal
include an undisclosed vendor fee. These in- monetary sanctions. The degree to which crim-
clude but are not limited to convenience fees inal courts and child welfare agencies prioritize
charged by Judici E-pay. Illinois state law allows who should be paid first is a thorny issue, but
counties to charge up to a $5 fee for payments the consequences for nonpayment in either sys-
made by credit card or through a third-party tem may compound legal entanglements. In
vendor.5 After the Ferguson Commission hear- one notable exchange from a Georgia, a par-
ings and report, municipalities in Missouri ticipant summarized their experience that led
were required to develop websites that allow for to losing their driver’s license because they
online payment. However, like in other states, owed child support:
the online payment systems come with an ad-
ditional service fee, further adding to the cost I mean they just send you a letter saying
of compliance. that. . . . Well one thing I didn’t know was
The wide range of civil and criminal penal- that, I thought it was something they would
ties triggered by failure to pay monetary sanc- automatically take care of with me being in-
tions can also result in a cascade of additional carcerated, my child support was still going.
costs. Driver’s license suspension, revocation, Of course, I’m falling behind and I’m not
or denial of renewal can be costly. Across the knowing it. Honestly, I’m thinking if I’m
states, the cost for applications to reinstate locked up it would stop because you know I
driver’s licenses ranged from $30 (Minnesota) can’t pay if I’m locked up. But I didn’t know
to $150 (Washington), many requiring full pay- this about two or three different times and I
ment of outstanding fines and fees before rein- fell so far behind. I get a letter your license is
statement (Illinois).6 In Missouri, the state al- suspended for child support.
lows additional fees ranging from $20 to $150.
In Texas, people are required to pay a $30 fee The participant thought that he would have the
before reinstatement. In New York, “termina- costs covered or paused while in prison and
tion of suspension” fees range from $50 to $100. went on to say that it took twenty years to even-
Although the law on the relationship between tually get his license reinstated.
unpaid monetary sanctions and the Depart- Garnishment of commissary accounts in
ment of Motor Vehicles (DMV) or DMV equiva- prison and wages from work release also
lent is rapidly changing in response to legal emerged as a concern. Study participants from
challenges,7 many people we interviewed de- California, New York, and Missouri, states no-
tailed the hardships they experienced when table for their generous allowances for garnish-
outstanding legal debt prohibited them from ing commissary accounts, experienced signifi-
having, or renewing, a driver’s license. cant material hardship—going without food or
5. Illinois Clerks of Courts Act, 705 ILCS 105/27.3 (2019), https://www.ilga.gov/legislation/ilcs/documents/0705
01050K27.3.htm (accessed August 12, 2021).
6. Minnesota, “Resolve Canceled License,” https://dps.mn.gov/divisions/dvs/Pages/search-dvs.aspx?filter1
=Driver%27s%20License&filter2=Class%20A%20-%20Commercial%20Driver&filter3 = Resolve%20
Canceled%20License (accessed August 12, 2021); Washington, “Types of Suspensions,” https://www.dol.wa
.gov/driverslicense/suspensions.html (accessed August 12, 2021); and Illinois, “Driver’s License Reinstatement
Fees,” https://www.cyberdriveillinois.com/departments/drivers/drivers_license/dlreinstatement.html (accessed
August 12, 2021).
7. On debt-based driver’s license suspensions, see Free to Drive, “Resources,” https://www.freetodrive.org
/resources/#page-content (accessed August 12, 2021).
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciencesw h at is w rong w ith moneta ry sa nctions? 2 31
personal hygiene products—because their excessive fines clause of the Eighth Amend-
commissary accounts were drained to satisfy ment.8 In the majority opinion, Justice Gins-
outstanding legal debt. In Washington, study burg wrote that monetary sanctions should “be
participants were concerned about the garnish- proportioned to the wrong” and financial pen-
ment of wages earned during work release alties should “not be so large as to deprive [a
when they also reported having to pay fees well person] of his livelihood,”9 making explicit ref-
in excess of their earned income in order to par- erence to Black Codes used disproportionately
ticipate in work release. A participant from to convict, fine, and “subjugate newly freed
Minnesota cited their experience with the gar- slaves and maintain the prewar racial hierar-
nishing of already low wages as a reason to be chy” (5–6).
cynical about the system: “When I went to The arbitrariness of monetary sanctions is
prison, I’m making twenty-five cents an hour, exemplified by practices around ability-to-pay
and they took half. So, you’re only making hearings. Although most state statutes allow
twelve and a half cents an hour, because they for the waiver of at least some monetary sanc-
took half. Half for gate fee, for restitution, what tions in cases when a defendant is unable to
else was in there, I forgot. DOC imposed some pay, individuals who lacked legal counsel were
kind of fine, some kind of surcharge, back then. often ill equipped to assert their indigence and
On money that was sent in, they were taxing it were rarely granted waivers. In fact, some par-
10 percent or something. So, if my grandma ticipants reported that they were discouraged
sent me $100 bucks, I only got $90 of it, because from seeking an ability-to-pay hearing and
they took $10.” sometimes provided misinformation from
People unable to pay legal debt experience court personnel. When we asked James, a vet-
an abundance of legal, social, and financial eran living with physical disabilities who owed
consequences until they are able to pay in full more than $1,500 for five tickets he received in
(see also Huebner and Shannon 2022, this vol- one traffic stop, whether he has tried to get an
ume, Harris and Smith 2022, this volume, Pat- indigence hearing to get the fees waived, he re-
tillo et al. 2022, this volume, Sanchez et al. 2022, plied, “[The clerk] told me that if I wanted to do
this volume, Boches et al. 2022, this volume; that, I’d have to hire my own private lawyer,
Sykes et al. 2022, this volume). Extended legal which also I don’t have enough money for. I
entanglements, including long-term supervi- don’t think Legal Aid takes these cases. . . . I’m
sion, was common for people we interviewed pretty sure they don’t take traffic ticket cases.
who were assessed monetary sanctions in ad- They’d be overwhelmed if they did.”
dition to a prison or jail term. Our research How judges determine indigence or willful
clearly illustrates how the system of monetary nonpayment varies across jurisdictions. In Mis-
sanctions serves as an unequal and indetermi- souri, this discretion is commonly based on
nate punishment for people who are too poor questions about the person’s lifestyle to deter-
to pay in full. mine whether they are spending funds on “lei-
sure,” such as buying cigarettes rather than pay-
Arbitrary and Excessive ing the court. Moreover, field notes indicate
The sheer variability in monetary sanctions that even defendants who clearly met the state
across states for a given violation highlights standard for indigence by relying on Social Se-
their arbitrary nature (see table 3). Research has curity Income (SSI) were routinely denied indi-
also drawn attention to the excessive nature of gence waivers. Instead, they were commonly
some monetary sanctions (see, for example, offered a monthly payment plan ($25 per month
Harris 2016; Pattillo and Kirk 2021). Recent was standard) or the opportunity to satisfy fines
court rulings have concurred. Timbs v. Indiana and fees through community service. In Texas,
found that asset forfeiture may contradict the one judge claimed that even though a defen-
8. Timbs v. Indiana, 139 S. Ct. 682 (2019).
9. Quoting Justice Ginsburg in reference to Browning-Ferris Industries v. Kelco Disposal, 492 U.S. 257 (1989), at
271 (Timbs v. Indiana).
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciences232 state mon eta ry sa nctions a n d the costs of the cr imina l lega l system
dant was receiving SSI and food stamps, she New York State and several communities in Il-
could have used her tax refund to pay her out- linois did not maintain online information por-
standing legal debt. Field notes record the ex- tals that provide information on payment,
change: “The judge asks why she didn’t pay. She amount due, and compliance requirements. In
says ‘you had 30 days to pay and you didn’t pay New York, people are expected to keep track of
it.’ The judge asks the defendant again, ‘When what they owe and when; no payment notifica-
did you get your tax refund?’ The judge orders tions are sent after sentencing although war-
[the defendant] to pay $25 every 30 days. She rants are regularly issued for nonpayment.
tells [the defendant] that ‘you had the ability to In many jurisdictions, clerk’s offices han-
pay.’ ‘I’m not going to find you indigent even dled payments whether delivered in person or
though you’re on the SNAP [Supplemental Nu- online. Yet in others, collections were handled
trition Assistance Program] program and the by probation offices or private collection agen-
CHIP [Children’s Health Insurance Program] cies. Payments managed by probation set in
program.’” motion additional forms of criminal legal sur-
How monetary sanctions were collected and veillance and the involvement of private agen-
to whom payments were made varied greatly cies introduced profit motives for enhancing
across the study sites and highlight how differ- collections (Huebner and Shannon 2022, this
ential access to information and technology by volume). In all Georgia courts, the primary
which to pay can lead to disparate impacts. In mode of legal debt collection is probation or
some jurisdictions, people can pay their mon- parole supervision. Collections at the felony
etary sanctions online. In others, they must pay level in Georgia occur through a centralized,
in person. Being able to pay monetary sanctions statewide system for collections managed by a
online can save people significant money, time, private company that charges a fee per transac-
and hassle. However, many jurisdictions with tion.
online court payment systems charge people ad- Variation was significant across states and
ditional costs to use their credit cards and per- jurisdictions on the usage of private collections
payment convenience fees.10 In Illinois, only agencies. The city of Seattle has a no-cost con-
some counties allow online payment. Cook tract with a private collections agency. Accord-
County—the largest county by population in Il- ing to California and Missouri law, counties are
linois and the second largest by population in responsible for the collection of monetary
the United States—mandates that payments are sanctions, though they may delegate some or
made in person. Differences in how payments all of the collection back to the courts and
are managed have important consequences for counties, and courts are allowed discretion in
amounts owed as well as the amount of time their collection practices, particularly when
and resources people have to devote to satisfy- people are more than ten days late on a pay-
ing their monetary sanctions (for a related dis- ment. In Texas, courts can use private collec-
cussion of procedural hassle in misdemeanor tions agencies after sixty days of nonpayment.
courts, see Kohler-Hausmann 2018). At the misdemeanor level, individuals on pro-
A fundamental challenge to compliance is bation in Georgia and Missouri are often sub-
not having information about how much and ject to collections through private probation
how to pay. Many people we interviewed who companies that charge not only monthly super-
owed legal debt reported that they have trouble vision fees but possibly also extra fees for pay-
finding information about their cases and de- ments (Huebner and Shannon 2022, this vol-
termining how much they owe. Defense attor- ume).
neys and people who owed debt suggested that
the lack of information stems from archaic Expanded System Involvement
methods courts use, such as paper records (see Monetary sanctions expand system involve-
also Huebner and Giuffre 2022, this volume). ment for people who cannot pay them com-
10. See, for example, Seattle Municipal Court’s payment portal (https://secure8.i-doxs.net/SeattleSMC, ac-
cessed August 12, 2021).
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciencesw h at is w rong w ith moneta ry sa nctions? 233
pletely and quickly in several ways. First, mon- Worse, some participants reported having to
etary sanctions are levied in a wide range of restart their courses because of missed pay-
situations from felony convictions to misde- ments or unattended classes, increasing the to-
meanor citations. In some states, they are lev- tal amount. The hidden costs of probation and
ied in courts in addition to incarcerative sen- program participation can dwarf the monetary
tences mandating jail or prison time, often sanctions associated with fines and fees for the
extending system involvement after the com- offense and, unpaid, can prolong supervision
pletion of time served (Harris 2016). Legal fines (Huebner and Shannon 2022, this volume).
and fees also accompany supervisory sentences The criminalization of traffic violations in
requiring community service, probation, victim some states, including speeding tickets, has
panel classes, drug and alcohol assessment and dramatically widened the scope and impact of
treatment, and anger management courses monetary sanctions (Baumgartner et al. 2018;
(Huebner and Shannon 2022, this volume; Har- Bing, Pettit, and Slavinski 2022, this volume;
ris, Smith, and Obara 2019; Pattillo and Kirk Huebner and Giuffre 2022, this volume). In
2021). The assessment of monetary sanctions such states, a minor infraction can lead to in-
for low-level misdemeanors, including traffic surmountable debt for those who cannot pay.
citations, also widens the scope of criminal le- In Georgia, Missouri, and Texas, getting pulled
gal contact, involving tens of millions of people over for speeding is considered a criminal of-
each year (Bing, Pettit, and Slavinski 2022, this fense and subjects millions of people each year
volume; Needham et al. 2020). to extended legal entanglements if they are un-
The assessment of monetary sanctions in able to pay (Huebner and Giuffre 2022, this vol-
addition to prison and jail time, probation, or ume). Even in states where minor traffic infrac-
other sanctions can extend surveillance. Even tions are considered civil offenses, unpaid
after a term of supervision is completed, people monetary sanctions can trigger a range of civil
unable to pay legal debt experience an abun- penalties.
dance of legal, social, emotional, and financial One participant recalled how one traffic
consequences until they are able to pay in full ticket triggered a cascade of others: “The first
(Harris and Smith 2022, this volume; Huebner one was from failure to control speed. Then,
and Shannon 2022, this volume). Extended le- after that one I had a failure to appear in court.
gal entanglements, including long-term super- Then, after that it was a failure to wear a seat
vision, were common for people we interviewed belt. Then, a failure to appear to court . . . I can’t
who were assessed monetary sanctions in ad- remember each one.” Legal fines and fees can
dition to a prison or jail term. At the same time, be exceptionally difficult to resolve for people
the costs associated with probation and other who are working poor. Deferred car repairs,
court-mandated programs could lead to inde- such as a broken headlight, can trigger or exac-
terminate periods of surveillance. erbate legal involvement. This participant, a
At the time of sentencing, judges customar- middle-aged mother of two, went on to de-
ily impose the completion of programs and rou- scribe how all of the moving violations were
tine monitoring. The costs for courses for driv- issued in the same neighborhood while she was
ing under the influence, anger management, driving to work. On one occasion, she was
drug and alcohol treatment, domestic violence, pulled over because she had a headlight out.
parenting, and antitheft classes are not system- She explained that at first the officer told her it
atically assessed or described at the time of sen- would just be a warning but after he ran her li-
tencing. Similarly, the costs of surveillance and cense and saw that she had a pending ticket,
routine monitoring also remain unarticulated he issued her another: “Once he saw that I had
during the sentencing process. Many of these prior tickets, he just gave me another, which
services leverage private companies to collect made it kind of extremely difficult for me to
and to report compliance with program re- even start a payment plan because now I have
quirements ordered by the state, and their costs like three $500 tickets. Mind you, I still have to
are fully revealed to individuals only when they take care of my kids, I still have to pay on my
seek to enroll and to complete the programs. car note, I still have to do my everyday living on
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciences234 state mon eta ry sa nctions a n d the costs of the cr imina l lega l system
top of now having to pay like $1,500 within monetary sanctions in addition to custodial
three days for tickets.” sentences that require spending time in prison
or jail or supervisory sentences that mandate
K e y P o li cy R ec o mm e n dat i o n s supervision by parole or probation agencies.
As our research shows, the design and practice The abolition or substantial reduction in the
guiding monetary sanctions widen the scope use of monetary sanctions system must follow
of criminal legal involvement, are experienced from a fundamental change in the way in which
differently based on capacity to pay rather than local courts and public services are funded. A
evidence of wrongdoing or determination of true abolition of monetary sanctions would re-
culpability, and further contribute to inequality quire a reduction or elimination of jurisdic-
by amplifying punishment among those least tional reliance on funding from monetary sanc-
able to pay. These observations lead us to offer tions (Pacewicz and Robinson 2020). At the
specific recommendations to improve the ad- same time, we call for the elimination of the
ministration of justice. They also raise impor- use of private agencies for debt collection and
tant questions about whether it is an opportune surveillance, an often-used tactic to minimize
time to consider abolishing monetary sanc- costs to state and local governments. Private
tions in the criminal legal system altogether. companies have a perverse incentive to in-
Table 4 presents a summary of recommen- crease total punishment through its payment
dations in relation to how they reduce the scope structures, because most contracts and fund-
of monetary sanctions, eliminate practices that ing depends on long terms of supervision and
are arbitrary or result in excessive punishment, frequent violation reports (Huebner and Shan-
enhance equity, and advance research and pol- non 2022, this volume).
icymaking. We draw on insights from recent
work to consider how these recommended in- Eliminate Arbitrary Practices and
novations in policy and practice can address Excessive Monetary Sanctions
goals of power shifting, defunding and rein- To the extent that monetary sanctions remain
vesting, and transformation to ultimately “dis- a feature of the criminal legal system, our sec-
mantle the uniquely oppressive components of ond set of recommendations targets arbitrary
the law” (Clair and Woog 2022, 18–22). The table practices and excessive monetary sanctions
provides an intervention or recommendation, that can be particularly harmful for people who
indicates key stakeholders, and offers exam- do not have the economic means to pay. Spe-
ples. The table also makes note of trade-offs, or cific strategies include mandating evaluations
limitations, that may be associated with a given of ability to pay for all defendants at the time
intervention or recommendation. of sentencing, granting waivers of all costs
(even those identified as mandatory) for people
Reduce the Scope of Monetary Sanctions deemed unable to pay, and eliminating garnish-
Our first set of recommendations centers on ment processes.
reducing the scope of monetary sanctions. Over Ability-to-pay determinations should be
the past fifty years, the criminal legal system based on a person’s current income and ex-
has adopted an outsized role. The United States penses and no mandatory fines and fees should
continues to criminalize more infractions than be levied against people without adequate or
ever, many of which involve monetary sanc- stable income to make regular payments. Fur-
tions (Mayson and Stevenson 2020). A first, and thermore, people living solely on federal
very important, step in reducing the harms as- means-based income or supplements should
sociated with monetary sanctions is to reduce not be assessed any form of monetary sanc-
or eliminate monetary sanctions whenever pos- tions (see Sykes et al. 2022, this volume). The
sible. Two strategies would go a long way to re- excerpts from our field notes and interviews
ducing such harms: decriminalizing traffic of- highlight the lack of ability-to-pay hearings
fenses in those states where a simple traffic held by judges both at the sentencing of fines
ticket can entrap people in the criminal legal and fees and at the assessment of nonpayment
system; and ceasing the practice of assessing compliance hearings. Further, our research
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciencesYou can also read
