States impose a variety of "user fees" on offenders to fund the criminal injustice system.

The Brennan Center for Justice issued a report in 2010 on the Criminal Justice Debt: A Barrier to Reentry. Fifteen states (California, Texas, Florida, New York, Georgia, Ohio, Pennsylvania, Michigan, Illinois, Arizona, North Carolina, Louisiana, Virginia, Alabama and Missouri) with the highest prison populations impose "user fees" on people with criminal convictions that may result in sending the ex-prisoners back to prison for not paying these "debts" because criminal defendants are "overwhelmingly poor":



It is estimated that 80-90 percent of those charged with criminal offenses qualify for indigent defense. Nearly 65 percent of those incarcerated in the U.S. did not receive a high school diploma; 70 percent of prisoners function at the lowest literacy levels. African-Americans face a particularly severe burden: Nationally, African-Americans comprise 13 percent of the population but 28 percent of those arrested and 40 percent of those incarcerated, and African-Americans are almost five times more likely than white defendants to rely on indigent defense counsel.

Court and Prosecution Fees

Since the 1990s, the amount and number of additional fees and costs have increased and the total universe of fees imposed may vary by state. User fees kick in at every stage of the criminal injustice system:

There are court costs for prosecution ($50 misdemeanor, $100 for felonies), surcharges ranging from $20-70 imposed for various driving offenses, fines, restitution, and court administrative costs.

Public Defender Reimbursement and Fees

States may charge an application fee to obtain a public defender and then later reimbursement costs for using a public defender. Public defender fees can range from mandatory recoupment fees of $50 for misdemeanors and $100 for felonies in Florida to "sometimes in the thousands of dollars."



Defender fees can include charges to “apply” for representation before an attorney is appointed, charges during the course of a criminal proceeding to offset the costs of representation, and charges at the termination of a criminal proceeding to reimburse the state for all or a portion of the costs of representation. In Florida and Ohio, individuals are required to pay defender fees even if they are acquitted or have charges dropped. Of the fifteen states, only Pennsylvania and New York do not utilize some form of defender fee.

In North Carolina, the court must order convicted defendants to pay a $50 fee and must direct a judgment to be entered for the full value of the defense services provided, currently valued at $75/hour for non-capital cases, plus additional fees and expenses. In Virginia, poor defendants may be charged as much as $1,235 per count for certain felonies.

In Arizona, where state law mandates that courts take into account and make factual findings regarding a defendant’s financial resources, interviews indicate that courts order defendants to reimburse public defense costs in the vast majority of cases, and that many courts have uniform fee schedules that fail to take into account ability to pay.

In practice, defender fees often discourage individuals from exercising their constitutional right to an attorney – leading to wrongful convictions, over-incarceration, and significant burdens on the operation of courts. In Michigan, for example, the National Legal Aid and Defender Association found that the threat of paying the full cost of assigned counsel resulted in misdemeanor defendants systematically waiving their right to counsel – at a rate of 95 percent in one county, according to a judge’s estimate.

The Supreme Court has indicated that defender fees should have safeguards to ensure that they do not create a “manifest hardship” for poor defendants, and numerous state and federal courts have concluded that to be constitutional, defender fees must to take into account defendants’ ability to pay and provide for a waiver if payment would impose a hardship.

Prison Fees

Some states have mandatory public defender fees and thus the courts cannot waive the fee if the defendant can not afford the payment.Even when hardship waivers are statutorily authorized, some states do not offer waivers in practice:Imposition of fees based on exercise of constitutional right to legal counsel can alone act as a deterrent to exercising right to counsel, exacerbating our already tiered system of rights based on money, class, race and gender and resulting in more convictions, and thus more prisoners, and thus more people to pay user fees:The Supreme Court has stated that defender fees with safeguards is ok:

States impose a jail fee for pretrial incarceration, fees that attach upon conviction, prison fees to defray the costs of incarceration and impose monthly fees for parole or probation supervision. Some even charge $15 to see a visitor while in prison.

"Poverty Penalty" of Late Fees

Fees also include "poverty penalties" of late fees, payment plan fees and interest when the person is unable to pay their newly created debts all at once. North Carolina has $25 late fee for failure to pay a fine or court cost on time, $20 surcharge to establish an installment payment plan, $200 for failure to appear in court and up to $600 fee for lab costs.



And fourteen of the fifteen examined states utilize at least one form of “poverty penalty,” where individuals face additional debt because they are unable to pay off criminal justice debt immediately. The result is a system effectively designed to turn individuals with criminal convictions into permanent debtors.

Debt Collection and Probation/Parol Revocation

While debtors' prison is illegal in all states, there is now a new form of debtors' prison created by these fees. As stated in the Brennan Report:



Although “debtors’ prison” is illegal in all states, reincarcerating individuals for failure to pay debt is, in fact, common in some – and in all states new paths back to prison are emerging for those who owe criminal justice debt. All fifteen of the states examined in this report have jurisdictions that arrest people for failing to pay debt or appear at debt-related hearings. Many states also use the threat of probation or parole revocation or incarceration for contempt as a debt-collection tool, and in some jurisdictions, individuals may also “choose” to go to jail as a way to reduce their debt burdens. Some of these practices violate the Constitution or state law. All of them undercut former offenders’ efforts to reintegrate into their communities. Yet even though over-incarceration harms individuals and communities and pushes state budgets to the brink, states continue to send people back to prison or jail for debt-related reasons.

There are four paths to debtors' prison based on these criminal injustice fees:

1. States make criminal injustice debt a condition of probation or parole and individuals can face arrest and re-incarceration upon failure to pay that results in revocation of probation or parole. Some states also extend the term of probation for failure to pay debt.

2. Some states "authorize incarceration as a penalty for a willful failure to pay criminal justice debt, often under the guise of civil contempt."

3. Two states have programs "where defendents can request to spend time in jail as a way of paying down court-imposed debt."

4. "All fifteen states have jurisdictions that arrest people for failing to pay criminal justice debt or appear at debt-related hearings, leading in many cases to multi-day jail terms pending an ability to pay hearing."

Driving Privileges and Constitutional Right to Vote

In eight of the fifteen states, driving privileges are suspended by the state for missed debt payments, creating additional problems of how to work, while also damaging credit, which can then make it harder to find a job or housing.

These criminal injustice debts function as a poll tax. Seven states require these debts to be paid off before the people can regain their eligibility to vote after a conviction. "This modern day poll tax is particularly harmful to the African-American community – nationwide, 13 percent of African American men have lost the right to vote, seven times the national average."

The user fees are not imposed for traditional criminal justice purposes of punishment, deterrence, or rehabilitation but to fund state budgets by imposing fees on criminal defendants and to provide bodies for the privatized system. User fees objectify people into a product that is needed to keep privatized prisons making a profit, similar to canned goods that need to be restocked when supplies decrease at your local store. Poor people as a commodity: When the prison population decreases, the privatized prison industry can push legislators for more criminalization and longer sentences, or maybe just expand on user fees to carry private prisons over any slump in profits.

