It was 2018, and one of Asher Waite-Jones’ clients was making minimum wage working part-time in a warehouse when he was assessed about $2000 in fines and fees for a DUI conviction. To pay those, the client, a young man in his 20s, dropped out of school so he could pick up additional work hours. But not long afterward, he was laid off.

The client spent a couple of years looking for other work, but his criminal record made it hard to find steady employment. And when the COVID-19 pandemic hit, his options narrowed even more.

When Congress passed the first round of COVID-19 relief legislation last spring, many people struggling amid the pandemic’s economic fallout were eagerly awaiting the stimulus payments included in that bill. But Waite-Jones, an attorney at the East Bay Community Law Center in Berkeley, said the promise of that much-needed stimulus check is what sent this client to the EBCLC offices.

“He was terrified that his stimulus payment would be garnished by the state Franchise Tax Board in order to pay back his criminal court fees,” Waite-Jones said.

This client’s experience isn’t an outlier — the California Penal Code, as Waite-Jones puts it, contains fines and fees “ad nauseam.” In 2017, California had 58 different criminal fees and surcharges on its books — more than in 42 other states, according to data compiled by the Criminal Justice Policy Program at Harvard Law School.

And when a client can’t pay an assessed amount, it has the potential to decimate what’s often already shaky financial stability for criminal defendants who, in the state of California and nationally, are often indigent and disproportionately Black and Brown.

In California civil cases, it’s relatively easy to ask a court to waive fines and fees related to the case if you can’t afford them. But in criminal matters, the situation is much different. That’s why, as the pandemic’s catastrophic economic consequences wear on especially for lower-income Americans, the EBCLC and multiple other public advocacy and poverty law organizations have filed amicus briefs in a case currently before the California Supreme Court with the potential to radically limit the fines and fees the state’s courts can assess on criminal defendants.

Amid a widening appellate split on the issue, the Supreme Court granted review in People v. Kopp in November 2019, limiting its review to two questions. First of all, must a court consider a defendant’s ability to pay before imposing fines, fees, or assessments on them? And if the answer to that question is yes, which party bears the burden of proof?

The high-stakes case is one battlefront in a wider campaign across California to alleviate burdensome financial obligations for people who come into contact with the state’s criminal justice system. Last week, the Supreme Court issued its long-awaited ruling in In re Humphrey, holding that courts must consider a defendant’s ability to pay before setting a cash bail amount. (California voters rejected a ballot measure last November that would have replaced cash bail with an algorithm-based risk assessment system).

And last year, Gov. Gavin Newsom signed AB 1869, a bill that repealed California counties’ authority to assess on criminal defendants 23 previously existing legal financial obligations, including fees associated with probation administration, arrest processing, and work release programs. The legislation includes an appropriation of $65 million to counties to cover revenues lost from those fees’ repeal.

AB 1869 was supported by a coalition composed of many of the same organizations that have filed amicus briefs in Kopp. Those groups are using the case as an opportunity to continue their challenge to the criminal fines and fees that remain on California’s books.

One of those is the American Civil Liberties Union of Northern California. Brandon Greene, director of that organization’s racial and economic justice program, calls criminal courts’ imposition of fines and fees on those who can’t pay them a process of “wealth extraction.”

“It further entangles people who are already overburdened and overpoliced in the criminal justice system, since the criminal justice system in effect is a system that on the whole criminalizes poverty,” Greene said. “Often who we’re talking about is Black and Brown folks, who are overrepresented in the criminal justice system. It further enshrines that system and all the injustices that come with it.”

Before Kopp, there was Dueñas

Rebecca Jones didn’t expect to be arguing over her client’s fines and fees before the highest court in California. As a lawyer who represents people accused and convicted of very serious crimes, her primary focus is usually the length of their prison sentences. The financial penalties her clients may receive aren’t out of her mind completely, but they’re a less pressing issue.

In 2014, Jason Hernandez was convicted of assault with a deadly weapon, conspiracy to dissuade a witness, and conspiracy to commit murder, among other counts, alongside his codefendant Christi Kopp in a gang-related drug case in San Diego County. When Jones took over Hernandez’s representation on appeal, the financial obligations the trial court imposed on him at first took a back seat to his prison sentence of 81 years to life.

But after Hernandez lost his appeal in the Fourth District — and the panel decided to publish the opinion — Jones “got a lot more amped up” about those fines and fees, she said.

The trial court had imposed seven financial obligations on Hernandez: a $10,000 restitution fine; a $120 court security fee; a $90 fee for an “immediate critical needs account”; a $154 criminal justice administrative fee; a $615 drug program fee; a $205 lab analysis fee; and a $10,000 parole revocation restitution fee (which was stayed as required by Penal Code section 1202.45).

On appeal, Jones argued that the court should have made a determination as to Hernandez’s ability to pay those fines and fees before it imposed them. In doing so, Jones invoked a Second District ruling from 2019 that has been the crowbar for a subsequent appellate split in California on ability to pay hearings: People v. Dueñas (2019) 30 Cal.App.5th 1157.

The facts presented in Dueñas were extreme. Velia Dueñas, an unemployed and unhoused woman with cerebral palsy and two young children, received three misdemeanor convictions for driving with a suspended license — and one for a failure to appear — over a period of several years. Dueñas’s license had been suspended in the first place because she couldn’t afford the $1000 fine for three juvenile citations she got as a teenager.

With each of her misdemeanor convictions, Dueñas could either pay a fine or serve jail time in lieu of payment. Never able to pay the fines, she spent a total of 51 days in jail. Even after serving that time, she was still liable for the court fees that came with each of her convictions.

The charge that finally made it up to the Second District came in 2015 (again for driving with a suspended license). Explaining that she was unhoused and receiving public assistance, Dueñas asked the court to set a hearing to determine her ability to pay the attorney fees she’d previously been assessed and other court fees.

The court waived the attorney fees on the basis of Dueñas’s indigence, but concluded that a $30 court facilities assessment, a $40 court operations assessment, and a $150 restitution fine were all mandatory regardless of her inability to pay them. The judge ordered Dueñas to pay the $220 total by Feb. 21, 2019.

In its ruling reversing the order imposing those assessments, the Second District held that imposing unpayable fines on indigent criminal defendants “is not only unfair, it serves no rational purpose, fails to further legislative intent, and may be counterproductive.” “Poor people must face collection efforts solely because of their financial status, an unfair and unnecessary burden that does not accomplish the goal of collecting money,” the court held.

Because “the only reason Dueñas cannot pay the fine and fees is her poverty, using the criminal process to collect a fine she cannot pay is unconstitutional,” the court ruled, concluding that the fines violated Dueñas’s due process and equal protection rights.

Since that landmark ruling, more than 1,400 California cases have cited Dueñas as of this writing. And because the state’s Attorney General didn’t ask the California Supreme Court to review the case (Dueñas’s lawyers, of course, had no reason to appeal the favorable ruling), California case law on ability to pay hearings is currently a scatterplot of appellate authority.

That’s why Jones thinks the California Supreme Court granted review in Kopp.

“I think what happened is I was the one who framed the issue in a way that caught their attention,” she said. “I made it very clear that there were splits of authority. There are all these different burdens of proof that are scattered throughout the statutes, and there’s no rhyme or reason. And they picked my case.”

‘Fines’ vs. ‘fees’

When Jones handled Hernandez’s appeal in the Fourth District, the California Attorney General made the same argument it’s making to the Supreme Court in Kopp. It conceded that the court facilities and operations fees imposed on Kopp and Hernandez should have been subject to an ability to pay hearing, as set forth in Dueñas. But the “punitive fines,” the Attorney General argued, should instead be analyzed under the Eighth Amendment’s excessive fines clause. The prosecutors argue that an inability to pay those fines could be a sign to the court that they violate that clause.

The Fourth District favored the Attorney General’s approach, writing that although “there is no indication that either Hernandez or Kopp are anything like the defendant in Dueñas,” the trial court should have held an ability to pay hearing for the administrative fees imposed on them because those fees weren’t “punitive in nature.” Emphasizing that “we are not wholly endorsing Dueñas,” the court added that it’s not the prosecution’s burden to prove a defendant can pay a fee — it’s the defendant’s burden to prove that they can’t.

And as for punitive fines like restitution fines, the Fourth District held, defendants can challenge them only under the excessive fines clause of the Eighth Amendment and article I, section 17 of the California Constitution. “[T]here is no due process requirement that the court hold an ability to pay hearing before imposing a punitive fine and only impose the fine if it determines the defendant can afford to pay it,” the court concluded.

In the answer brief it filed with the Supreme Court in Kopp, the Attorney General elaborates on the difference between “punitive fines” and “user fees” that it argued in the Fourth District appeal. The prosecutors write that restitution fines and the lab analysis and drug program fees imposed on Hernandez were part of the punishment for his crimes, while the operations and administrative fees were “user fees” designed to raise money for judicial processes.

“Pushing low-income criminal defendants into debt just to go through the court system does not further the cause of justice,” former California Attorney General Xavier Becerra said in a statement in December. “Our criminal justice system cannot be blind to the economic realities of our people and society. Bottom line: Nobody deserves to be punished more harshly because they are poor.”

California’s system of imposing unaffordable “user fees” is unconstitutional under the equal protection clause, the Attorney General argues in the brief. But for “fines that punish,” equal protection and due process rights don’t pose a bar against imposing the assessments beyond the excessive fines clause.

“Not just monetary punishment, but all punishment, affects some defendants more harshly than others,” the prosecutors wrote in the brief. “It is hard to imagine how sentencing courts could implement a command to equalize punishment across such varied circumstances.”

But for Greene, of the ACLU, “this distinction between fines and fees, conceptually, doesn’t mean anything to the person for whom they’re being levied.”

“It’s a distinction without a difference,” Greene said. “You don’t experience a difference in the way it impacts you economically. If someone is indigent — which the vast majority of people in the criminal justice system are — and they can’t afford to pay, it doesn’t make a difference what you call it.”

And for the clients the Kopp appellate attorney Jones represents — whose cases involve very serious crimes that come with long sentences — “you’re going to have real problems” if defendants can only litigate their fines and fees under the excessive fines clause, Jones said.

“If you’re serving 200 or 300 years to life, how are you going to tell me that a $10,000 fine is excessive?” she said.

She noted that while Dueñas involved a defendant who was out of custody, fines and fees can still have severe economic consequences on people like Hernandez who will likely be in prison for the rest of their lives.

“When these folks owe $10,000, they have to pay that out of their prison wages,” Jones said. “It interferes with their family’s ability to put money on their books so they can get cleaning supplies, hygiene supplies, extra food. Once you start digging into how these fines and fees affect everybody who has contact with the criminal justice system, you realize how deeply they can affect somebody in all these different ways.”

Waite-Jones, of the EBCLC, added that “what the Attorney General really fails to grapple with” is that for someone who’s poor, “a $10,000 fine is not a deterrent.”

“Nobody’s reading the statute books and saying, Oh, I might get a $10,000 fine, I guess I won’t do whatever,” Waite-Jones said. “What you are doing by assessing a $10,000 fine, or a $5,000 fine, or even in some ways for people a $100 fine, is ensuring that that person is trapped even more in a cycle of poverty that they will never get out from under.”

Social costs

The imposition of high fines and fees on defendants to fund court operations hasn’t always been a feature of California’s criminal justice system. Another amicus brief filed in Kopp, on behalf of a group of poverty law scholars, suggests that the rise in those financial assessments “can be traced directly back” to the passage of Proposition 13, the 1978 ballot measure that dramatically reduced what California could assess in property taxes.

“The skyrocketing growth of fines and fees, which falls so heavily on those without means, is especially striking when compared to the decline or lack of growth in other sources of state revenue which are often more equitable or are graduated to the resources of the payor, such as property taxes,” the brief notes.

And while those fines and fees have “soared,” according to the brief, wages in California and nationally have remained stagnant, making the obligations “ever more onerous” for those least able to pay them.

Clare Pastore, the brief’s author, is a professor at the University of Southern California’s Gould School of Law and was previously a litigator at the Western Center on Law and Poverty. Increased public scrutiny of the often unpayable financial obligations California imposes on criminal defendants, she says, is part of a shift of national attention to the issue.

“The cost of running a court system is a social cost,” Pastore said. “That’s not something that we should be billing to individuals.”

Moreover, Pastore adds, these fines and fees aren’t even effective as a fundraising mechanism when people can’t afford them — the cost of imposing them often exceeds the recovery. In Dueñas’s case, for example, what it cost the state to jail her for 51 days almost certainly exceeded the amount of her unpaid assessments. “It is a bitter irony that while fines and fees are often justified as a way to raise revenue for necessary public services such as courts, they resoundingly fail to do so when imposed on those too poor to pay,” Pastore’s brief states.

Meanwhile, those debts can become inescapable burdens for the people who hold them, leaving no aspect of their financial lives untouched. Waite-Jones said that many of his clients at the EBCLC seriously consider pulling all of their money out of their bank accounts so it won’t be levied for unpaid fines and fees and leave them without funds to cover daily necessities.

“They rack up these fees, they’re never able to pay them, and they’re in a position — because they’re in constant fear of having their bank accounts levied, their wages garnished — that they’re actually forced to enter underground economies, work under the table, and not have a bank account in order to protect whatever little money they have coming in,” Waite-Jones said.

And even with case law like Dueñas on the books, Waite-Jones said, that doesn’t mean every defendant who deserves an ability to pay determination under that ruling gets one.

“In practice there are judges who follow Dueñas, and there are judges who do not,” he said. “In practice sometimes fees are waived entirely, sometimes they’re just lowered. It matters far more who you get as a judicial officer in practice than it does what the law is.”

For that reason and others, while Waite-Jones sees the ability to pay question presented in Kopp as an important first step, he hopes to see California ultimately abolish fines and fees for criminal defendants altogether.

On the heels of its successful advocacy of AB 1869, which takes effect on July 1, the coalition Debt Free Justice California — composed of organizations including the EBCLC, the ACLU of Northern California and Southern California, and the Western Center on Law and Poverty — is supporting another bill that would eliminate most of the state’s remaining criminal fines and fees. SB 586, introduced by State Sen. Steven Bradford (D-Gardena), would also make uncollectible the unpaid balances of most court-imposed costs and would vacate any portion of a judgment imposing them.

Greene, who also supports that legislation, adds that it’s taken an enormous amount of work just to get the ability to pay issue in front of the Supreme Court, especially given the stigma that remains in many people’s minds about those who go through the criminal justice system.

“People see folks who are entangled in the criminal justice system as bad people, or people who are deserving of these punitive measures, in a way that they don’t see the same thing apply to civil cases,” Greene said. “It took years for us to get to this point in time where even the idea that you shouldn’t be assessing fines and fees on someone without their ability to pay was part of the discourse.”

And where Kopp could bring a very important change in law, Greene thinks, is on who bears the burden of proof in ability to pay hearings. A 2019 article he wrote for the Berkeley Journal of Criminal Law covered what he calls the “hypocrisy” of California courts’ indigency determinations, which he believes comes into play on that burden-shifting question.

“If you’re represented by the public defender’s office, there’s already an understanding that you’re indigent,” he said. “But now we have to intellectualize why it would make more sense for the burden to be on the DA’s office to prove that you’re not than for you to prove that you are.”

Kopp presents an opportunity to interrogate not only the economic consequences of California’s criminal fines and fees, Greene said, but also the court and bureaucratic infrastructure that determines how they’re imposed.

“For me, it is always this question of why we push so hard to intellectualize systems that we know are disenfranchising folks on the margins, the people who are already economically deprived,” he said. “Why we create the barriers for them to have to go through the indignity of proving just how indigent they are.”

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