Due Process

"Due Process in a Fee Driven State"

A very interesting law review article from Profs. Glenn Harlan Reynolds (Instapundit) & Penny White.


You can read it here (just 25 pages); here's the Introduction:

"No man," states a venerable common law rule, "should be a judge in his own case."[1]  The impartiality properly demanded of a judge is not possible to those who have a stake in the outcome of the adjudication.  According to the United States Supreme Court, this principle is "a mainstay of our system of government."[2]

For this reason, the law has long required that judges not be parties to the cases they oversee, or closely related to parties in the case, or subject to rewards or penalties based on the outcome of the case. There can be no due process when the one passing judgment is predisposed to judge in favor of one side.

{A case that illustrates the breadth of interest that corrodes due process is Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813 (1986). Although the case arose in the context of judicial disqualification, its holding confirms the general principle that those with a stake in the outcome of a case should not participate in its resolution. In Lavoie, the Alabama Supreme Court issued an unsigned per curiam opinion holding that partial payment by an insurance company did not bar bad-faith suits or punitive damages.  Among those joining the majority was Justice Embry, who previously had filed both an individual action and a class action against insurance companies, raising similar issues.   When the case reached the United States Supreme Court, the Court held that "Justice Embry's opinion for the Alabama Supreme Court had the clear and immediate effect of enhancing both the legal status and the settlement value of his own case."  Thus, Justice Embry's interest in the outcome of the case was "'direct, personal, substantial, [and] pecuniary," and he acted as '"a judge in his own case.'"}

These rules held well enough until recently, but we believe that it is time to take a broader look at what constitutes impartiality, and due process, in a judicial (and law enforcement) system that increasingly depends on fines, fees, and forfeitures not simply as punishments, but as major sources of operational funds. Inspired by two recent decisions from the United States Court of Appeals, we argue that when everyone participating in the justice system is aware that the system itself depends on sufficient revenue from fines, fees, and forfeitures, that very dependency is a conflict of interest sufficient to violate due process rights.

In this short article, we will look briefly at the history and law of judicial independence, after which we will describe the extent to which the modern judicial system—and, indeed, the entire law enforcement apparatus—depends upon extracting money from a steady stream of individuals who appear before it creating an untenable vested interest in charging and collecting and rendering a fundamentally unfair system.  We will then suggest some ways in which the resulting conflict of interest can be remedied.  At a time when funding, and defunding, law enforcement is the subject of much debate, it is worth considering the incentives that some sorts of funding can create.

And from the Conclusion:

To operate as legitimate institutions of government, our courts must be freed from serving as revenue centers.  If courts are to command respect; if their judgments are to be honored and observed; if, in fact, the most fundamental guarantee of the Constitution is to be valued, then our courts must be funded properly by state revenue.  The taint that adheres when courts depend on fines, fees, and forfeitures to operate must be removed and the criminalization of poverty must be permanently eliminated.

NEXT: Today in Supreme Court History: September 15, 1857

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  1. This was some years ago, but a 2005 study of the federal courts actually reported a significant difference in favor of criminal defendant in federal *bench* trials. The conviction rate for criminal defendants in federal jury trials was 84 percent, but only 55 percent in bench trials. Even controlling for what the study called “public order” cases — 90% of which involved traffic offenses — judges convicted at only a slightly higher average of 60 percent. Andrew Leipold, “Why Are Judges So Acquittal Prone?” (83 Wash. U.L.Q. 151 (Spring 2005).

    I’ve never seen an update of that study or a similar study of state courts. My bias going in would be that federal courts are *better* than state courts, which might be more apt to be part of a “speed trap” kind of town. Nevertheless, it’s worth asking whether this is simply a presumption that no one has ever looked closely enough to determine whether it’s true.

    1. That would be fascinating if you can pull up the study.

      I’d be curious to see if it controlled for the types of cases. I don’t practice criminal law (primarily because of, um, the criminals), but it is my understanding from discussions with those who do that as a general rule, you only opt for a bench trial for certain types of cases.

        1. Interesting. So it would appear that the majority of the difference (at that time) was due to the selection of the cases; but the authors believe that there was some unexplained difference, and they theorized that it was the result of the changes in sentencing.

          Or more concisely- it was mostly because of self selection (which cases defendants choose as bench trials). But there could be some cases of “judicial nullification” where judges went after the prosecution’s case more critically because the judges knew that the sentence would be disproportional to the offense.

          Of course, the second factor could also play into the first.

    2. I think you definitely have to control for WHY a bench trial was sought. In state court, at least, bench trials are often done for cases that you can’t dismiss outright but you know are hard sells. If you send completely different types of cases to bench trials, it’s not surprising they’d have different conviction rates.

    3. How do you getba travffic case in Federal Court?

      1. Military bases? National parks?

        IANAL. Just winging it.

        1. That’s correct. There’s an agency of the U.S. Courts called the Central Violations Bureau that deals with federal ticket-able petty offenses.


      2. Speeding in a national park is a pretty common way.

      3. One summer in law school, I worked as an intern at the U.S. Attorney’s Office in Manhattan. We dealt with some very high profile cases — drug gangs, massive frauds, international kidnapping.

        One day, a paralegal asked for my help. Someone was irate on the phone. She had gotten a $25 ticket for littering at the Statute of Liberty, and wanted to know how to fight it. Needless to say, the lawyers there did not give that too much importance.

  2. This logic seems to prove too much, largely by ignoring how conflict of interest works psychologically.

    A personal interest is naturally a stronger pull and is harder to put aside than an institutional interest.

    By this overbroad logic, all cases about taxes should be thrown out. And all cases about jurisdiction.

    1. You aren’t wrong that it is a stronger pull, but the question is whether institutional conflict is a strong enough pull. And it sometimes is.

      An obvious example was the reliance on court fees by Ferguson, Missouri, which was exposed after the Michael Brown shooting.

      In a perfect world, any moneys collected by the government would always go to some other organization. For instance, if LA county collects fines, perhaps, San Francisco county should receive them and vice-versa. Or maybe all local fines should go to the federal government and all federal fines should go to local government. That would make officials in governmental positions indifferent to collecting fines, which is the ideal situation.

      In the real world, we are never going to get that, but we still need some doctrines that rein in institutional conflicts of interest.

      1. Even in the case of town-wide schemes, I’m not sure this is the right remedy. It just encourages money from fees be spent elsewhere, which does not end the scheme.

        The idea of fines going elsewhere is a neat idea but yeah not very likely.

        Dunno about fees – tolls and the like seem on point regarding where their money goes.

    2. I think you’re reading too much into the article. At one end of the spectrum are cases where the judge has a direct, personal interest. At the other end of the spectrum are cases about taxes. Even if a judge makes a decision about taxation, the proceeds go to the general budget where they are aggregated with all the other revenue sources, allocated by the legislature and spent by (mostly) the executive branch. The actual spend is many layers removed from the decision about the tax case.

      The kinds of fees the authors are discussing are things like municipal courts in speed-trap jurisdictions or other fees paid directly to the local court and spent by that local court. I tend to agree that those cases are closer on the spectrum to the personal interest than a generic tax case.

      1. Rossami,

        That is an excellent point, and well explicated. That is what I get for not clicking through.

        Thanks for your patience; I withdraw my 8:58 argument.

        1. What is this? I don’t even!

          Changing your mind based on a well-reasoned argument???

          What kind of monster are you?

  3. The judiciary may have contributed to this problem, but I can’t visualize it being fixed by them. It will need a legislative solution.

    Yikes! Don’t hold your breath.

    1. Legislatures, especially of counties or cities, contribute even more to it. This problem needs a constitutional solution, or at least a judicial solution that sticks as if it were in the constitution.

      The principle that EV stated is only one of several reasons not to want government at any level getting its operating funds from fines and penalties. Yes, a judge hearing a case that affects his own income will be partial, even if he intends to be above that influence. But so will members of a legislature when a proposed law affects either their personal income or the budget they will get to spend, and so will police departments when a possible enforcement action affects their personal income or budget.

      But in addition, a grave unfairness is committed when those members of the public who were the easiest to catch committing some trivial infraction are deliberately made to bear more than their share of their locality’s budget, not because they deserve it but because that’s a way for cowardly legislators to keep tax rates low for their friends.

      So what we need is a constitutional requirement that government budgets be paid for by taxes, not fines — and preferably that all fines go to some neutral, charitable cause far enough away that recipients are not in a position to lobby for harsher laws or more enforcement.

  4. This is a significant problem, especially down at the county or local court level. I was pulled over and given a speeding ticket many years ago. I was not going as fast as the officer said, and after some research, I also discovered that the speed limit was not set according to state law. I took the ticket to court and presented these arguments. The judge actually looked at the prosecutor and said “shame on you for not having the evidence to contradict this man’s argument” but still proceeded to find me guilty. I could have very easily appealed, but it would have cost me more to appeal than just paying the ticket. The judge knew that and was counting on me not appealing so they could still get the revenue.

    1. I had the same problem with a red light ticket. Had a map showing where I was, how far to the light, how I could not have entered the intersection while it was red, and that the lights were timed for a lower speed anyway. All the judge said was in effect “too bad”. Another guy in the same traffic court session had been given a ticket for following too closely by a cop who admitted he was five cars back; same response that cops are experts by training and experience etc.

  5. Last time I contested a speeding ticket the judge said that by state law the radar is always right even if you can prove it was wrong, listed off a bunch of unacceptable defenses, and finished the speech with basically declaring the court a waste of time since everyone was considered guilty until proven guilty. Meanwhile a state trooper was literally screaming at someone for daring to contest a ticket while invading their personal space and begging them to pick a fight. It was nothing more than a payday for the court. It was disgustingly unprofessional.

  6. ” it is difficult to get a man to understand something when his salary depends upon his not understanding it.” -Upton Sinclair

  7. One thing that I think is under-appreciated is that rights, like any other law, often cost money to enforce properly. Even with a Bill of Rights that is built on so called “negative liberty” there is going to be a cost to some of these things. Do you want police officers who properly follow the Fourth Amendment? That’s going to cost money. Do you want fair and speedy trials? Money. Do you want punishments not to be cruel and unusual? Money. Do you want the government to ensure procedural due process before acting against you? Money.

    But for a lot of these things, people see this as a cost that can be passed onto someone else, like criminal defendants in this case, because they don’t conceptualize that these rights are important to them on a day-to-day basis. That’s how you get systems where the people who come in contact with the court system get saddled with a large part of the cost, as opposed to the taxpayers generally, even though they also benefit from the existence of such systems and rights.

  8. Reminds me of the since-disestablished village of New Rome, Ohio. From Wikipedia:

    New Rome police had systematically taken advantage of the village’s sudden drop (from 45 mph (72 km/h) to 35 mph (56 km/h)) in the posted speed limit along the busy thoroughfare of West Broad Street to pull over thousands of motorists, raising nearly $400,000 gross annually from speeding tickets, but primarily vehicle citations, including trivial offenses such as dusty taillights and improperly tinted windows. Nearly all of this money was funneled back into the police force, which almost exclusively dealt with traffic violations and so essentially existed to fund itself. The 60-resident village had as many as 14 policemen (all part-time), with the Village Council wanting more.

    Many local business owners complained that customers were being driven away by the village’s reputation, and there were many reports of arbitrary and even abusive conduct at the hands of the New Rome police, who even ventured into surrounding jurisdictions to arrest people over unpaid traffic tickets.

    The Ohio Department of Transportation eventually decided that New Rome’s lower speed limit was inconsistent with state law guidelines. The New Rome police force was suspended by the village in 2003 when its chief resigned, shortly after the village’s mayor’s court was abolished by the state, and so the speed trap came to an end.

    1. See also: Linndale, Ohio.

      Although Ohio eliminated Mayor’s Courts for villages under 200 people, there are still a lot out there. The ACLU of Ohio did a really interesting report on them last year:


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