The Rise of Criminal Court User Fees in North Carolina Part 2: Paying for the Cage

This article was co-written with Kevin Murtagh, 3L, Wake Forest University School of Law.

"[F]or anyone that has money they know the first rule is to use other people's money."[1] Kanye West

The United States has less than 5|PERCENT| of the world’s population but almost 25|PERCENT| of the world’s prisoners.[2]  This imprisonment rate is about six-times higher per-capita than Canada and three-times higher than Mexico.[3]  In North Carolina, the imprisonment rate is even higher than the national average.  About one in every 120, or 54,300 individuals[4], are incarcerated at any time in North Carolina.[5]  59|PERCENT| of them are incarcerated for non-violent offenses like drug possession or fraud. [6]

The cost to incarcerate these individuals in the State’s prisons varies between $64.00 and $94.00 per day and averages $29,965.00 a year per inmate.[7]  All told, North Carolina spends more than $1.2 billion dollars each year, or about 6|PERCENT| of the entire State budget,[8] operating the prison system.[9]  Another $463.9 million is spent to operate the judicial system.[10] An additional $125 million is dedicated to Indigent Defense Services whose main mission is providing constitutionally mandated legal services to indigent defendants.[11] 

In North Carolina, the General Assembly funds the court system, known as the General Court of Justice.  Historically, funding was provided by taxes collected from all North Carolinians.  Over the last several decades, however, the legislature has made a determined effort to shift the cost of running the judicial system from taxpayers in general to court system users.[12] This shifting of costs in criminal court, charged in large part to indigent criminal defendants with almost no ability to pay,[13] has the effect of criminalizing poverty, makes a mockery of the North Carolina guarantee of Equal Protection of the Laws[14] and does almost nothing to pay for “a fair, independent, and accessible forum for the just, timely, and economical resolution of their legal affairs.”[15]  

In 2014, 55|PERCENT| of all criminal defendants in North Carolina were determined, after an in-court indigency hearing, to be too impoverished to contribute to their representation.[16] 71|PERCENT| of the criminal cases handled in Superior Court involved indigent defendants.[17]  Notwithstanding their destitute circumstances, judges often issue court fee judgments against these same individuals imposing debts that can run into the thousands of dollars.[18] 

The legislative theory is that all this money will eventually be funneled back “[f]or support of the General Court of Justice.”[19]  In the real world, however, the cost of collecting outstanding fees from indigent defendants is often greater than the amount of money collected. For example, in 2009 Mecklenburg County found itself with a significant budget deficit.  A decision was made to aggressively attempt to collect outstanding court debt.  564 individuals who had fallen behind on their court debt were arrested and 246 people, who couldn’t pay in full right away, were incarcerated. They were told that they would be released from jail if they paid the full amount of their debt. If they couldn’t pay the full debt, they would have to remain in jail until a judge decided whether to release them. The 246 people who couldn’t pay were held in jail for an average of four days before seeing a judge at a cost to the county in excess of $40,000.   Meanwhile, the county managed to collect a little more than $33,000 from all the individuals who were arrested, resulting in a loss to the county of about $7,000.[20]

Even judges who recognize the futility of issuing monetary judgments against people with no ability to pay are stymied by some fees, like the unwaivable $250.00 fee to simply participate in a community service program.[21] 

In criminal court, all court fee judgments carry the threat of prison time. In theory, this isn’t an equal protection issue: pay the fee and no jail for failure to pay.  But in reality, it often works out as a prime example of treating one group completely differently than another.  Take the case of community service.  According to the statute, community service is available to anyone ordered to participate and who has the $250.00 admission fee. [22]   So when two individuals from opposite ends of the income spectrum are negotiating plea bargain terms, community service instead of jail as a punishment is only realistically available to the person with the money to pay for admission.   With no money to purchase the community service option, the indigent person often winds up losing her freedom by doing a short active sentence, like weekends in the local jail, which is seen as equalizing the punishments.[23] 

In the final installment in this series, we will argue that ending the practice of imposing excessive costs in criminal actions, often without any consideration of ability to pay, will protect the indigent from criminalizing their poverty while reinforcing the public’s confidence in the fairness of our judiciary. 

[1] https://twitter.com/kanyewest/status/699308079171522561.  

[2]  The Growth of Incarceration in the United States: Exploring Causes and Consequences (2014), page 2. Available at: http://johnjay.jjay.cuny.edu/nrc/NAS_report_on_incarceration.pdf.
[3] World Prison Population List available at: http://www.prisonstudies.org/sites/default/files/resources/downloads/world_prison_population_list_11th_edition.pdf.
[4] About 40,200 of these individuals are in Department of Adult Corrections facilities.  See note 7 infra.   The remainder are in local facilities.
[5] Kaeble, Glaze, Tsoutis, and Minton, Correctional Populations in the United States (2014), available at: http://www.bjs.gov/content/pub/pdf/cpus14.pdf.
[6] North Carolina Department of Public Safety fact card (2012), available at: http://www.doc.state.nc.us/Publications/2012|PERCENT|20Fact|PERCENT|20Card.pdf.
[7] The Price of Prisons: North Carolina available at: http://www.vera.org/files/price-of-prisons-north-carolina-fact-sheet.pdf.  Costs for inmates on death row are two to three times higher. See also, Just or Not, Cost of Death Penalty Is a Killer for State Budgets  “just keeping prisoners on death row costs $90,000 more per prisoner per year than regular confinement, because the inmates are housed in single rooms and the prisons are staffed with extra guards” available at: http://www.foxnews.com/us/2010/03/27/just-cost-death-penalty-killer-state-budgets.html, and Six Reasons the Death Penalty is Becoming More Expensive “A 2014 study out of Kansas reported that a death row prisoner costs $49,380 to house per year, whereas a general population prisoner costs $24,690.” available at: https://www.themarshallproject.org/2014/12/17/six-reasons-the-death-penalty-is-becoming-more-expensive#.HcEFYAFNW.[8] 1.2 billion is 5.7|PERCENT| of the 21-billion-dollar State budget. See, note 10 infra.
[9] Note 7, supra.
[10]  North Carolina Judicial System Annual Budget (2015) available at: http://www.nccourts.org/Citizens/Publications/Documents/2014-15_North_Carolina_Judicial_Branch_Annual_Report.pdf.
[11] The Office of Indigent Defense Services – Fiscal Research Division, March 11, 2015 available at:  http://www.ncleg.net/documentsites/committees/JointAppropriationsJPS/2015|PERCENT|20Session/2015-03-11|PERCENT|20IDS|PERCENT|20and|PERCENT|20AOC|PERCENT|20Follow-Up/01|PERCENT|20FRD_IDS_2015-03-11.pdf.  Additional expenditures are statutorily mandated to be paid by counties and municipalities for physical facilities occupied by judicial personnel and for law enforcement personnel, equipment and facilities.  See e.g., N.C. Gen State § 7A-302.
[12] See, Clark, D. and Murtagh, K. All the Justice Money Can Buy, Trial Briefs …
[13] “Criminal defendants … [come] … from a population often representing the poorest and most destitute in the state.”  See, State of North Carolina Judicial Department Performance Audit (June 2011), Appendix at page 3.  Available at: http://www.ncauditor.net/EPSWeb/Reports/Performance/PER-2011-7251.pdf. 
[14] North Carolina Constitution, Article I, section 19: “No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.”
[15] See, note 10 supra, North Carolina Judicial Branch Mission Statement.
[16] See, Indigency Screening and Recoupment available at: http://www.ncids.org/News|PERCENT|20&|PERCENT|20Updates/Screening_Recoupment.pdf.  See also, North Carolina Office of Indigent Defense: North Carolina’s Criminal Justice System, A Comparison of Prosecution and Indigent Defense Resources, available at: http://www.ncids.org/Reports|PERCENT|20&|PERCENT|20Data/Latest|PERCENT|20Releases/ProsecutionOfIndigentDefense.pdf.
[17]  Id.
[18]  See, NC AOC court costs and fee chart available at: http://www.nccourts.org/Courts/Trial/Documents/court_costs_chart-Oct2015-criminal.pdf.
[19] N.C. Gen Stat § 7A-304(a)(4).
[20] Brennan Center for Justice, Criminal Justice Debt: A Barrier to Reentry, page 26 (2010) available at: http://www.brennancenter.org/sites/default/files/legacy/Fees|PERCENT|20and|PERCENT|20Fines|PERCENT|20FINAL.pdf.  See also, Fines, Fees, and Bail, Council of Economic Advisers Issue Brief (Dec 2105) at page 4 “growing evaluation evidence suggests that a policy that funds government through criminal justice fees and fines is often ineffective. State and local governments are likely to collect fines and fees at low rates, in large part because of low incomes among many offenders, making them unable to pay court debts assigned without consideration for ability to pay.”  available at: https://www.whitehouse.gov/sites/default/files/page/files/1215_cea_fine_fee_bail_issue_brief.pdf.
[21]  N.C. Gen Stat § 143B-708(c). (The $250.00 community service fee “shall be paid by all persons who participate in the program or receive services from the program staff.”).  See also, Markham, J., Waiving Community Service Fees available at: http://nccriminallaw.sog.unc.edu/waiving-community-service-fees/. 
[22] Normally this fee is required to be paid “in full” before participating in the community service program but under some circumstances the trial judge may allow the fee to be paid after the defendant has begun the program.  Id.
[23] Post-conviction time spent in the local jail is billed back to the defendant at a rate of $40.00 per day.  See Markham, J. Jail Fees, available at: http://nccriminallaw.sog.unc.edu/jail-fees/