The Volokh Conspiracy

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Volokh Conspiracy

"Due Process in a Fee Driven State"

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

|The Volokh Conspiracy |

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.