This article was co-written with Kevin Murtagh. Kevin J. Murtagh received his J.D. from Wake Forest University School of Law in May 2016, and he is licensed to practice law in North Carolina. His main interest is criminal law, and he hopes to become an Assistant Public Defender. 

“Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.” Frederick Douglass was a wise man. He didn’t need a crystal ball to foresee the challenges the American criminal justice system would face if the cost of operating the system fell to those least able to bear the burden. Starting in Ferguson, Missouri in 2014, a wave of unrest by citizens against predatory court costs and fees that disproportionately impact the indigent has swept the country. Constitutionally, the North Carolina court system is designed to provide a forum for the fair and just resolution of legal disputes. As we’ve argued previously, there should be no cost for access to justice by North Carolinians other than a nominal fee to cover the expenses of administering a case. This cost should be paid by those citizens able to afford the fee and, of course, waived for those citizens who lack the means to pay. Unfortunately, over the last quarter century the North Carolina legislature has made a concerted effort to make the court system monetarily self-reliant by shifting the cost of running it from taxpayers in general to court system users, many of whom are indigent. This has led not only to a civil court system virtually inaccessible to all but those with the ability to pay, but also to a criminal court system where poor citizens who come in contact with the criminal courts live in constant fear of arrest and incarceration for no reason other than their poverty. In this final article, we will argue, as Chief Justice William Howard Taft did in 1926, that “[s]omething must be devised by which everyone, however lowly, and however poor, however unable by his means to employ a lawyer and pay court costs, shall be furnished the opportunity to set fixed machinery of justice going.”

In “Mercenary Criminal Justice,” Wayne Logan and Ronald Wright argue that, to fully appreciate the risks and negative consequences of substantial “legal financial obligations,” or “LFOs,” a system-wide perspective is necessary. To that end, they recommend either the creation of independent commissions to study LFOs, or, in states that already have sentencing commissions, the delegation of that task to the sentencing commission. In either case, “[t]he commission should comprehensively review existing LFOs, approve newly proposed LFOs, and collect and publish data relevant to their legal and policy desirability.” The overall approach would be one that involves asking both normative and empirical questions, and gathers experts with different backgrounds and perspectives to take a holistic look at the use of LFOs and make informed recommendations.  

It is important that the LFO or sentencing commission evaluate the effects of LFOs and associated collection methods on defendants. The commission should examine how LFOs can accumulate, thereby trapping defendants in an inescapable cycle of debt and promoting recidivism. It should also examine collection methods such as extending probation and jailing those who fail to pay. Finally, the commission should consider whether such policies may be counterproductive or inspire ill-will towards the government. Given that sentencing commissions already collect and analyze both quantitative and qualitative data, charging them with these tasks should not involve requiring them to go outside their already-established areas of expertise. The commission should also be tasked with evaluating the revenue stream that actually flows from current LFOs. As mentioned in our previous article, the practice of trying to collect money from citizens without the means to pay likely costs the State more than it gains in revenue. Many fees are never collected at all, and the added hours that judges, lawyers, court staff, and sheriff and police personnel spend attempting to collect adds up to a tremendous waste of government resources.  

A commission that has the staff and capabilities of a sentencing commission can study this issue in depth, looking at both sides of the ledger. In addition, the commission should have an ongoing role in responding to proposals for new LFOs and changes to existing ones. It could provide feedback on the possible consequences of introducing or changing an LFO, and could evaluate it in terms of the values established during its initial inquiry. Publishing reports on the changes to LFOs and the economic aspects of collecting them would improve transparency and make legislators more informed about these issues.

The North Carolina Sentencing and Policy Advisory Commission could take on the tasks that Logan and Wright recommend. According to its website, “The Commission has 28 members drawn from all three branches of government; from all areas of the criminal justice system; and from the public.” It also has eight staff members, some whose work is legal, and others who focus on empirical investigation. Thus, the members and staff of the Commission represent a wide variety of perspectives and can bring a diverse skill set to evaluate court costs and LFOs. 

In addition to calling for this more general reform strategy, it is important to take a detailed look at the existing structure of court costs and fees and determine priorities for reform. We think that numerous reforms should be made, but here we will focus on a few suggestions for changing costs and fees that seem especially problematic.

One priority for reform should be lowering or eliminating the $600 fees for crime laboratory testing and forensic expert witness testimony. There is no denying that these exorbitant fees dissuade a substantial number of people from asserting their rights to have the State prove every element of the charge and to confront the witnesses against them. It is not right to put defendants, especially indigent ones, in the position of doing a cost-benefit analysis and risking financial hardship when deciding whether to assert their Constitutional right to have the State prove the charges against them. 

Another recommendation is that North Carolina should explicitly offer community service as an alternative to payment of court costs. According to the Brennan Center for Justice, North Carolina is in the minority among states with the highest prison populations in not offering specific restitution oriented community service options as an alternative to criminal justice debt. In practice, it may be legal for North Carolina judges to craft a disposition that achieves an effect similar to offering community service in lieu of court costs and fees: A judge can waive certain court costs and impose a sentence of community service. The question is whether it is legal to waive community service fees. James Markham argues that it is unclear whether these fees may actually be waived according to statute, but then notes that in practice, “the fee gets waived with some frequency.” Doing community service as an alternative to paying court costs shouldn’t have to be accomplished through a roundabout procedure such as this. If the idea behind court costs is that defendants should compensate the State for revenue expended in dealing with their criminal case, then defendants, or, at the very least, indigent defendants, should be able to compensate the State with their labor. This could be an especially beneficial arrangement for the indigent and unemployed who have the lowest prospects for paying court debt on time. Finally, restitution oriented community service labor has the added benefit of contributing to a long stated goal of the criminal justice system: reintegration of the defendant as a productive citizen.

Excessive fees are objectionable on economic hardship grounds, but they are also objectionable because they increase hostility and frustration towards the State to a degree that outweighs the paltry contribution to the State’s operating expenses. We are thinking here principally of the $60.00 appointment of counsel fee for indigent defendants and the $20.00 installment payments fee. Indigent defendants are told, on the one hand, that if they cannot afford an attorney one will be appointed to represent them. On the other hand, they are told that simply asking for that Constitutional right will cost them $60.00, with an additional $20.00 if they can’t pay immediately. This quite likely causes them to be frustrated and to view the system as rigged against those who have the least. Or, more ominously, as Fredrick Douglass phrased it, they may view it as “an organized conspiracy to oppress, rob and degrade them.”

Our final recommendation is that courts follow existing Supreme Court guidance and perform a routine ability-to-pay analysis prior to imposing court costs, and that any costs should be imposed in light of that analysis. The Brennan Center recommends that “States should have clear written standards for determining a person’s ability to pay, and screening should evaluate genuine financial ability, taking into account other obligations” such as child support. This would add consistency to a determination that judges make on their own without detailed guidance. In deciding how to respond to a defendant’s failure to pay criminal justice debt on time, one of us (Murtagh) saw a judge tell a defendant that she must have been able to pay because her nails were done and she was wearing some name-brand clothing. Of course, she may have had her nails done by a friend and the name-brand clothing may have been bought at a thrift store or yard sale. If there is not a reasonable ability-to-pay analysis before court costs are determined, judges will continue making waiver decisions in an imprecise and impressionistic way.

For at least the last two decades, the unconscionable rise of costs, fines, and fees in criminal court has led many in the indigent communities around this State and the country to believe that monetary enrichment, not due process, is the goal when the poor are forced to pay for “the machinery of justice.” The persistence of mandatory fees for every aspect of the criminal justice system, from asking for an attorney to paying for a bed in the jail, has resulted in a continuous cycle of debt for those least able to afford it. These practices must change! “The machinery of justice” can no longer be funded on the backs of poor people. A thorough retooling of the way North Carolina pays for its criminal justice “machinery” is long overdue.