The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

"The New Due Process: Fairness in a Fee-Driven State"


An interesting and important new article by Profs. Glenn Harlan Reynolds (InstaPundit) and Penny White, both of the University of Tennessee College of Law (see also this Wall Street Journal piece, excerpted without a paywall here):

Many municipalities have chosen to use the criminal justice system as a revenue-extracting tool. Offenses, even minor ones, produce fines and court fees that are used to fund municipal government removing the need to raise the taxes of those who might object to paying. In many cases, as in the Ferguson, Missouri example we discuss below, this revenue-generation strategy becomes the chief driver of a government's criminal justice priorities.

The result is an interaction between law enforcement and citizens that appears essentially predatory: Officers are tasked with finding (or generating) violations and issuing citations, after which courts and clerks assess a seemingly endless array of fees, fines and costs whose chief purpose is the fattening of government coffers. Meanwhile citizens are jailed, arrested, and bankrupted. They lose jobs, licenses, opportunities, and liberty….

Worse yet, judicial supervision in these cases is essentially missing in action, as the courts are not umpires, but rather participants, in this process, benefiting from the revenues that the system extracts. Instead of controlling the system, the courts are compromised by it. Moreover, the system is not racially neutral. A common factor in cities that rely on hefty fines, fees, and court costs as a mechanism of funding the courts is a large African-American population. What the Justice Department found to be true in Ferguson, Missouri, is true throughout the country. "Among the fifty cities with the highest proportion of revenues from fines, the median size of African American population—on a percentage basis—is more than five times greater than the national median." The disproportionate concentration in communities of color results not only in an increase in incarceration rates for African Americans but also in a community-wide increase in the racial wealth gap. The impact of this increase in the racial wealth gap often persists long after the citizen's encounter with the police has ended.

The current system of fee-based criminal justice as it prevails in many communities is both unfair and discriminatory. It is also unconstitutional. That is a strong charge, but it is also true. It also calls for strong measures in response, which we discuss below.

We begin this analysis from vastly different places. As people, lawyers, and law professors, we hold very different views about most of the important issues of the day. Our backgrounds are dissimilar, as are many of our values, interests, and areas of expertise. Yet, after starting at altogether different places, in the end, we are joined in conclusions and solutions and imagine that others, despite their varying points of view, may agree. Based on Supreme Court caselaw on judicial independence, along with two very recent cases from the Court of Appeals for the Fifth Circuit, we conclude that a judicial system that depends on revenue extracted from its "users"—criminal defendants, victims of civil forfeiture, and the like—violates due process of law because it is insufficiently independent and unbiased. We also offer a number of solutions that can be applied by both courts and legislatures.