Due Process

Federal Court Rules State Judges Cannot Profit From Fines and Fees Imposed on Defendants in the Cases Before Them

If the court that hears the cases stands to profit from the fines paid by defendants, that's a violation of the Due Process Clause of the Constitution. The rulings have potential implications for other, similar conflicts of interest in the criminal justice system.


In two unanimous rulings issued over the last week, the US Court of Appeals for the Fifth Circuit ruled that criminal court judges in New Orleans, Louisiana have an unconstitutional conflict of interest, because the money collected from fees and fines imposed on defendants goes to subsidize their courts' operations. Nick Sibilla of the Institute for Justice summarizes  the two cases in an article for Forbes:

Due to their "institutional interest" in generating court revenue (a "substantial portion" of their budget), the judges of the Orleans Parish Criminal District Court "failed to provide a neutral forum," which in turn violated the constitutional right to due process.

The first case, Cain v. White, centered around half a dozen criminal defendants who pled guilty and subsequently faced fines and fees ranging from $148 to $901.50. When they couldn't pay up, OPCDC authorized warrants for their arrest, threw them in jail, and set their bond at $20,000….

Distressingly, some of the fines and fees were deposited into a "Judicial Expense Fund," which the Orleans Parish judges have "exclusive authority" over. One quarter of the Fund's revenue—around $1 million—comes directly from the fines and fees the court collects. Though judges can't use the Fund to pad their own salaries, they can use it to pay the salaries and benefits of court personnel, as well as a wide array of miscellaneous expenses, including conferences, coffee, drug testing, and pest control.

In a similar vein, the second decision, Caliste v. Cantrell, involved a Louisiana law that sent 1.8% of a commercial bail bond's value towards the same Fund. As the Fifth Circuit noted, "The bond fees are a major funding source for the Judicial Expense Fund, contributing between 20–25% of the amount spent in recent years."

Judge Gregg Costa's opinion in Caliste summarizes the legal issue involved:

"No man can be judge in his own case." Edward Coke, INSTITUTES OF THE LAWS OF ENGLAND, § 212, 141 (1628). That centuries-old maxim comes from Lord Coke's ruling that a judge could not be paid with the fines he imposed. Dr. Bonham's Case, 8 Co. Rep. 107a, 118a, 77 Eng. Rep. 638, 652 (C.P. 1610). Almost a century ago, the Supreme Court recognized that principle as part of the due process requirement of an impartial tribunal. Tumey v. Ohio, 273 U.S. 510, 523 (1927).

This case does not involve a judge who receives money based on the decisions he makes. But the magistrate in the Orleans Parish Criminal District Court receives something almost as important: funding for various judicial expenses, most notably money to help pay for court reporters, judicial secretaries, and law clerks. What does this court funding depend on? The bail decisions the magistrate makes that determine whether a defendant obtains pretrial release. When a defendant has to buy a commercial surety bond, a portion of the bond's value goes to a fund for judges' expenses. So the more often the magistrate requires a secured money bond as a condition of release, the more money the court has to cover expenses. And the magistrate is a member of the committee that allocates those funds….

"Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant… denies the latter due process of law." [Tumey, 273 U.S.] at 532…..

Judge Cantrell has a direct and personal interest in the fiscal health of the public institution that benefits from the fees his court generates and that he also helps allocate….

His dual role—the sole source of essential court funds and an appropriator of them—creates a direct, personal, and substantial interest in the outcome of decisions that would make the average judge vulnerable to the "temptation . . . not to hold the balance nice, clear, and true." Tumey, 273 U.S. at 532. The current arrangement pushes beyond what due process allows.

Judge Costa rightly emphasizes that the proper standard should be a conflict that would be a source of temptation for the "average man," not one that assumes that judges are better able to withstand temptation than mere mortals.

It is perhaps worth noting that the judges who joined in these rulings span the political spectrum. Judge Costa is a liberal Obama appointee, as is Judge Graves, author of Caine v. White. But Judge James Ho, who joined in the court's opinion in Caine is a conservative appointed by Trump. Reagan appointee Judge Edith Jones, who joined the ruling in Caliste, is, in my view, the most conservative judge on the Fifth Circuit,  if not in the entire federal appellate judiciary; she is not generally known for rulings favoring criminal defendants.

The specific funding system in the New Orleans cases may be unusual. But as Sibilla explains, similar conflicts of interest exist in other parts of the criminal justice in many states. He notes the examples of local governments and judicial systems that use court fees and fines as "ATMs" to finance their operations, such as the notorious abuses of power a 2015 Justice Department report documented in Ferguson, Missouri.

Another common scenario arises from asset forfeiture policies under which police forces get to keep the profits from assets  confiscated from owners on the theory that they may have been used in the commission of a crime—including in many cases where the owner was never even charged with an offense, much less convicted. In many jurisdictions, asset forfeitures are carried out with little opportunity for owners to challenge the seizures. The problem has been exacerbated by the Trump Administration's reinstatement of the "equitable sharing" program, under which the federal government helps state and local police forces circumvent state law limitations on asset forfeitures, and thereby keep more loot for themselves.

Last year, a federal court in New Mexico struck down a particularly egregious asset forfeiture program in Albuquerque because it violated due process, by creating a conflict of interest. Hopefully, the two recent Fifth Circuit decisions will help generate momentum for further rulings along the same lines.

If it is a violation of due process for judges to indirectly profit from their own rulings, the same reasoning applies to cops who similarly profit from the fines and asset forfeitures they impose on citizens. In fairness, one can argue that conflicts of interest on the part of police and other law enforcement officers are not as egregious as those that involve judges, because the former do not make final decisions about the fate of the accused. But, in many situations, decisions by police have an enormous impact on the outcome, especially given that judges and prosecutors often defer to the police on various issues. That is particularly true in the case of asset forfeitures, where procedures make it extraordinarily difficult for owners to recover their assets once police have made the initial decision to seize them. Like judges, police exercise enormous discretion over the fate of suspects—discretion that should be free of self-interested temptations that are likely to bias the decision-making of "the average man."

As the Fifth Circuit explains, the legal principles involved here have deep roots in the Anglo-American legal tradition's conception of "due process." But they are also just basic common sense. It's dangerous to have judges—and police officers—who stand to profit from imposing fees and fines on people, or from seizing their property. Not because judges and cops are unusually bad people, but because they are subject to the same temptations as the rest of us.

NOTE: I clerked at the Fifth Circuit many years ago (for a judge who was not on either of these panels). I know both Judge Ho (who clerked for the same judge as I did, two years before me, and helped interview me for the clerkship position), and Judge Jones (whose chambers were down the hall from those of my own judge). I do not believe these connections bias my views of the two cases—both of which were decided long after I ceased to be a Fifth Circuit clerk. But I thought I would note this history here, nonetheless. A post about conflicts of interest should probably err on the safe side in such  matters!

UPDATE: Reason's Scott Shackleford has some comments on the two rulings here.


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  1. Edit: your update link points to Reason’s Scott Shackford. You accidentally typed it as Shackelford, the cyber security prof at IU law.

  2. Perverse thought …. money is fungible. If this spreads and becomes the new normal, will people start tolook with jaundiced eye upon fines and fees and bail proceeds which go into the general fund? All it would take is some legislator somewhere remarking that the legislature must make up a budget shortfall because courts seem to be producing less revenue.

    I’ve often wondered what the justification is for fines going to the government rather than victims. I know the rationalization, that the harm cannot be particularized to individuals, or that doing so would be too onerous and too expensive. We’ve all seen class action wins where people in the class get coupons good for $10 and lawyers get the lion’s share.

    Will this eventually spread? It would be interesting to see how it has morphed in 100 years.

  3. Beyond doubt, money corrupts. But it is not the only form of corruption.

    I once lived in Sweden under their famous government health care system. It was completely free of money.

    But according to recent press stories, it has been corrupted by influence. To get treated in Swedish hospitals now, you have to know a doctor. Only friends get treated. Swedes are rushing to buy private health care to supplement the free care they are entitled to.

    Bail could be replaced with a “kiss my a**” type of corruption.

  4. So the money goes into a fund with other govt. revenues, and then will be redistributed. The incentive to raise revenue remains the same. The courts will get an indirect bite of the same apple.

  5. Ilya writes:
    “If it is a violation of due process for judges to indirectly profit from their own rulings, the same reasoning applies to cops who similarly profit from the fines and asset forfeitures they impose on citizens.”

    I’m not so sure this is true. The Due Process clauses are understood to guarantee the opportunity to be heard before a neutral decisionmaker. This is the basis for the line of cases finding it violates due process when the judge or adjudicator has a pecuniary interest or some sort of potential bias. This same line of cases does not impose similar constraints on executvie branch officials, prosecutors, investigators, etc. So, as much as I dislike forfeiture and the like, I am skeptical these decisions undermine its constitutionality.

    1. Oh they definitely undermine its constitutionally. Of course, the constitution really undermines their constitutionally.

      There is zero due process with asset forfeiture. Zero.

  6. “The Due Process clauses are understood to guarantee the opportunity to be heard before a neutral decision maker.” Yep, jury trial.

  7. The first six or seven words of that headline are confusing, Professor. (“Rules” could reasonably be taken as a noun or as a verb, for example.) Back in the good old days, the copy desk would have reworked that one.

    1. Yeah, sometimes legalese can be confusing if you’re not used to it. In this case, “rules” is a verb. Hope this helps.

      1. Careful, you may be called a superstitious , bigoted, clinger.

        1. Careful . . . you might be one.

          Which is no way to go through modern life.

            1. It is time to put up a nice bottle to be enjoyed upon your replacement.

      2. This is not a case of legalese, so far as I can determine.

        1. “This is not a case of legalese, so far as I can determine.”

          Oh. I see the problem. A verb is an action word. A noun is a person, place, or thing. In that sentence, “to rule” is an action, so “rules” is a verb.

          Hope that helps.

          1. Which Department of English has earned credit for developing your insights in this regard?

            1. Yeesh. You try to help a guy understand something…

      3. I didn’t notice it until RAK pointed it out but I must begrudgingly admit that he is correct and the title is ambiguous: it can either sustain the intended meaning of “A federal court rules that state judges…”, or it can mean “The rules of federal court state that judges…”.

        1. Exactly.

          Are we talking about a federal court ruling concerning state judges, or something that federal court rules state?

          Just putting the word “that” between “rules” and “state” solves the problem.

          1. “Just putting the word “that” between “rules” and “state” solves the problem.”

            That would be incomplete. What about “federal court rules that state judges cannot profit…”

  8. The title of this post is a bit misleading. It suggests that judges were personally profiting from the decisions.

    That said, at first glance I think I agree with Mr. Somin in approving the decision.

  9. While I agree that these programs are difficult to defend on policy grounds (the bail bond one seems particularly ill-considered), I don’t think I find the constitutional argument very persuasive. I read Tumey to depend on 1. The fact that the judge was personally paid a non-trivial amount of money if there was a conviction; and 2. The fact that the judge had no other way of being paid if there was not an acquittal. Here, the funds are going to the institution, not to the judges, and the court system has access to alternative funding sources if these programs fall short. I’m not sure how this wouldn’t call into question any/I> sort of judicially imposes financial penalty that goes to the government, since increased government revenue always has the potential of indirectly benefitting the court system.

    In light of the long history (in both England and the United States) of financial incentives to persons who successfully apprehend and prosecute criminals, I’m also dubious that the same logic can be applied to the police.

  10. I’ve made this argument before regarding fines in general. If the goal is to deter bad behavior, the government does not need to get a $1 of it. Force it to be escheated to the federal government with prohibitions on “granting” it back. Only the Treasury is large enough that no one is motivated by fines that go to it.

  11. An accounting and budgeting issue that is cloaked in suspicion. All fines and fees, which are perfectly constitutional, are paid into the general revenue account for the county/Parrish/State. The legislative body with normal budgetary control determines the funds to be budgeted from State/County revenues. The actual issue for constitutionality was who had control over the account where the fees and fines were paid. Just have the general revenue funding coffee, etc in the overhead for the courts. General Revenue is already paying them.

    I get the desire to find the constitutional crisis but, more prudent accounting resolves the constitutional dilemma.

  12. A rule that people interested in the outcomes of cases cannot file complaints would seem to be inconsistent with virtually the entire body of civil law, which is almost always disputes between, and initiated by, interested parties. In these disputes, the only witnesses are often people interested in the outcome.

    Extending the rule from the judge to roles like the prosecutor or police would seem to run into difficulties if the entire realm of civil law isn’t to be declared unconstitutional. (Particularly in light of the Bill of Rights having a specific rule, the jury rule, for suits at common law.)

  13. That said, the peculiar thing about the way asset forfeiture is currently done is that probable cause alone creates a rebuttable presumption, shifting the burden of proof. Perhaps a better line of attack might be a somewhat narrower one, not arguing that an interest makes asset forfeiture itself inherently unconstitutional, but that an interest makes shifting the burden of proof unconstitutional – an interested party should not be allowed to enjoy a presumption against the owner. That is, even if interest and burden shift each standing alone are constitutional, the combination of the two might become unconstitutional.

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