Glenn Harlan Reynolds

Opinion columnist

Are you a proud citizen, served by a government that works for you? Or are you a sheep to be shorn?

It’s pretty clear what a lot of people in the government think. In a minor but typical example, a friend of mine got a $50 ticket in Sevier County, Tennessee (home of Dollywood). She thought she had a good case that the ticket was undeserved, so instead of just mailing in her 50 bucks, she went to court — where the judge was uninterested in hearing her side and where she was hit not only with the $50 fine but with several times the fine in “court costs,” essentially a tax on her for daring to exercise her right to a trial.

This sort of thing is standard, and it’s all about funneling citizens’ cash into government coffers, for the benefit of government workers. And the example above is a mild one.

The effort to combat these unfair practices

Now, some courts are beginning to provide adult supervision, and other people are starting to fight back. In two recent cases, the U.S. Court of Appeals for the 5th Circuit struck down schemes that steered money from those before the judicial system to judges, on the grounds that they are a conflict of interest. And elsewhere, people are suing municipalities that seem to fund too many of their activities from the proceeds of their criminal justice system, treating law enforcement as a source of profit.

There are real harms implicated:The cost of criminalizing poverty

In Cain v. White, the 5th Circuit struck down the imprisonment of people who owed small fines (a few hundred dollars). The problem is that the fines were to be deposited in a “Judicial Expense Fund,” which went to pay for things like judicial travel, conferences, additional staff, etc. Likewise, in Caliste v. Cantrell, the 5th Circuit also struck down a provision in which 1.8% of a commercial bail bond’s face value (set by judges) went to the same fund.

In both cases, although the money didn’t go directly into the pockets of the judges setting fines and bail, the 5th Circuit held that the institutional interest of the judiciary in this income was sufficient to call judges’ neutrality into question. (Nick Sibilla in Forbes and law professor Ilya Somin in the legal blog The Volokh Conspiracy have discussions of the case.) But the problem goes much further.

Many municipalities rely on traffic and criminal fines as a major source of revenue. This practice is sometimes defended on the basis that taxpayers won’t support enough revenues to fully fund the government, but my own belief is that the size of government should be limited by what taxpayers are willing to spend.

As a recent study by Governing magazine found: “Fines and forfeitures account for more than 10% of general fund revenues for nearly 600 jurisdictions. In at least 284 of those, the share exceeded 20%, the threshold set by Missouri in its post-Ferguson reforms. Another 80 governments reported even higher fines accounting for more than half of general revenues.”

The Ferguson reference is significant, as a scathing Justice Department report faulted Ferguson, Missouri, for essentially running its municipal government off of fines levied on its poorest citizens.

No one sector is solely responsible. It's an institutional issue.

The problem is not just judges, either. Courts have generally given law enforcement and prosecutors more leeway, on the theory that they are ultimately supervised by neutral judges. But given that most cases are resolved via plea bargains with minimal judicial supervision, that’s a dubious basis. If I offered $10,000 to a prosecutor’s office or a police department to have it go after someone I didn’t like, that would be a crime. If it goes after someone because it can forfeit a car worth $10,000 and keep the proceeds, that’s business as usual.

Treating citizens like sheep to be shorn is not only a conflict of interest, it also fosters a predator/prey (or maybe parasite/host) relationship between the judicial system and citizens that is very bad for public morale. I would say such officials are acting like an occupying army, but the Army, at least, is far more generous to those it occupies. Maybe pirates.

Something should be done:Eliminate court fines and fees that penalize poverty

The libertarian public interest firm Institute for Justice is suing Doraville, Georgia, “a 10,000 person suburb of Atlanta that has become notorious for its revenue-generating speed traps and housing code enforcement cases.”

Lawsuits are nice, but there’s a role for legislatures here too. At the very least, money from fines and forfeitures should have to go into the state’s general fund, not to the entities that collect it. That would remove the financial incentive to engage in policing for profit.

In America, the government is supposed to ask the citizenry for money in the form of taxes and manage to get by on whatever the citizens think is enough. Anything else is a species of piracy. It’s time to put a stop to it.

Glenn Harlan Reynolds, a University of Tennessee law professor and the author of "The New School: How the Information Age Will Save American Education from Itself," is a member of USA TODAY's Board of Contributors.