WRIGHT.DOCX (DO NOT DELETE)

9/5/2014 10:54 AM

MERCENARY CRIMINAL JUSTICE
Wayne A. Logan*
Ronald F. Wright**

To some degree, money has always figured in criminal justice.
Early on, private enforcers of the criminal law received payments for
their work. Remuneration played a less explicit but still prominent
role in the nineteenth and twentieth centuries as public actors carried
out the work of criminal justice. Today, amid significant budget pressures brought on by the Great Recession and the costs of running the
nation’s massive criminal justice apparatus, courts and other system
actors rely heavily on a growing number of legal financial obligations
(“LFOs”) as revenue sources. When this happens, courts and other
system actors become mercenaries, in effect working on commission.
While a significant body of literature now exists on the adverse
personal consequences of LFOs for offenders, this Article is the first
to offer a comprehensive examination of their legal, policy, and institutional ramifications. To date, courts have provided little principled
basis to regulate the risks associated with LFOs; nor have governments monitored their creation and use on a systematic basis. To mediate these risks, and to create an institutional check on LFOs, the Article proposes the use of LFO commissions. Commissions, because of
their system-wide vantage point, will be able to inventory and assess
the propriety of existing LFOs, and monitor their use going forward.
In so doing, they will lend order and transparency to LFOs, and mitigate the risks they present to individual offenders and the integrity of
the criminal justice system as a whole.
TABLE OF CONTENTS
  INTRODUCTION ............................................................................... 1176 
A BRIEF HISTORY OF CRIMINAL JUSTICE PAYMENTS............... 1179 
A. English Experience ............................................................ 1179 
B. Criminal Justice Payments in the United States .............. 1182 
III. SURVEY OF CURRENT LFO PRACTICES ...................................... 1185 
I. 
II.

* Gary and Sallyn Pajcic Professor of Law, Florida State University.
** Needham Y. Gulley Professor of Criminal Law, Wake Forest University. Thanks to Doug
Berman, Jack Chin, Mary Fan, Carissa Hessick, Jancy Hoeffel, Babe Howell, Michael O’Hear, Jenny
Roberts, Sandra Guerra Thompson, and Sam Wiseman for their very helpful comments. Thanks also
to Shannine Anderson, Chris Edwards, Steven Ferrell, Katie Hughes, Maureen Kane, Tori Kepes,
Amber Stoner, and Tom Watkins for excellent research assistance. Elizabeth Farrell and Elizabeth
Johnson provided invaluable support from our libraries.

1175

Electronic copy available at: http://ssrn.com/abstract=2309093

WRIGHT.DOCX (DO NOT DELETE)

1176

IV.

V.

VI.

9/5/2014 10:54 AM

UNIVERSITY OF ILLINOIS LAW REVIEW

[Vol. 2014

A. Pre-Judgment LFOs ................................................................ 1186 
1. Booking Fees...................................................................... 1186 
2. Prosecutorial Intervention ................................................ 1187 
3. Pre-Trial Abatement.......................................................... 1188 
4. Bail ...................................................................................... 1189 
5. Application Fees for Defense Counsel............................. 1189 
B. Post-Judgment LFOs .............................................................. 1190 
1. Investigation, Prosecution, and Court Costs ................... 1190 
2. “Pay-to-Stay”: Detention LFOs ....................................... 1192 
3. Probation and Parole Fees ............................................... 1192 
4. Fines .................................................................................... 1193 
5. Forfeiture ............................................................................ 1195 
6. Expungement Fees ............................................................. 1196 
JUDICIAL LIMITS ON REVENUE GENERATION ........................... 1196 
A. The Supreme Court Weighs In ............................................... 1197 
B. Supreme Court Themes ........................................................... 1199 
C. State and Lower Federal Courts ............................................. 1200 
1. Elaboration of the Neutrality Theme ............................... 1201 
2. Elaboration of the Individualization Theme................... 1203 
3. A Third Concern: Connectedness .................................... 1205 
D. Summary .................................................................................. 1209 
GUIDING PRINCIPLES AND AN INSTITUTIONAL RESPONSE....... 1210 
A. Risk Assessment ....................................................................... 1210 
1. How Early Does the Payment Appear in the Process? .. 1211 
2. How Prominent is Revenue as a Purpose? ..................... 1212 
B. Risk Reduction from Commissions ....................................... 1215 
1. Commissions—Taking Stock ........................................... 1217 
2. The Transparency Benefit of a Commission ................... 1221 
CONCLUSION ................................................................................... 1226 

I.

INTRODUCTION

It is often said that a criminal offender owes a debt to society.
Lately, though, it seems that a growing number of bill collectors are trying to cash in on that debt. Courts ask for payment of costs, corrections
officials demand recovery of incarceration-related expenses, and legislatures levy surcharges for convictions. Even private, for-profit entities get
a piece of the action, collecting fees for probation supervision and other
services. Some of these collectors knock on the door even before a final
bill is due, such as when prosecutors require suspects to pay diversion
fees before charges are filed. The payment demands have become so

Electronic copy available at: http://ssrn.com/abstract=2309093

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1177

numerous and complex that they have earned their own acronym: LFOs,
or “legal financial obligations.”1
While it might be easy to understand the rationale for each LFO
standing alone, taken together they often have debilitating consequences
for individuals.2 Today, it is not uncommon for costs, fees, surcharges,
and the like to exceed the amount of restitution or fines that a defendant
owes in a given criminal case.3 Recent academic work and advocacy
group studies have condemned LFOs for their economically regressive
impact on poor defendants,4 the barriers they present to reentry,5 and the
racial disparities they reflect.6
In this Article, we consider LFOs from a different vantage point: we
explore the legal and policy ramifications for government institutions
(and private entities acting in tandem with them) when they can generate
revenue for themselves. Today, criminal justice actors increasingly rely
on the income from LFOs to fund ordinary system operations7 and to
expand the system’s reach. When this happens, courts and other criminal
justice actors become mercenaries, in effect working on commission.
1. See, e.g., REBEKAH DILLER, BRENNAN CTR. FOR JUSTICE, THE HIDDEN COSTS OF FLORICRIMINAL JUSTICE FEES 5 (2010), http://www.brennancenter.org/sites/default/files/legacy/
Justice/FloridaF&F.pdf [hereinafter DILLER, HIDDEN COSTS].
2. See, e.g., id. at 10–13; REBEKAH DILLER ET AL., BRENNAN CTR. FOR JUSTICE, MARYLAND’S
PAROLE SUPERVISION FEE: A BARRIER TO REENTRY 7–14 (2009), http://www.brennancenter.org/
publication/marylands-parole-servision-fee-barrier-reentry [hereinafter DILLER ET AL., MARYLAND’S
PAROLE]; John Gibeaut, Get Out of Jail—But Not Free: Courts Scramble to Fill Their Coffers by Sticking Ex-Cons with Fees, 98 A.B.A.J. 51, 54 (2012); R. Barry Ruback, The Imposition of Economic Sanctions in Philadelphia: Costs, Fines, and Restitution, 68 FED. PROBATION 21, 25 (2004); Alan Rosenthal
& Marsha Weissman, Sentencing for Dollars: The Financial Consequences of a Criminal Conviction
16–18 (Feb. 2007) (unpublished manuscript) (on file with Brennan Center for Justice), available at
http://www.brennancenter.org/sites/default/files/legacy/Justice/CCA%20Sentencing%20for%20Dollar
s%20Feb%202007.pdf.
3. See, e.g., ALICIA BANNON ET AL., BRENNAN CTR. FOR JUSTICE, CRIMINAL JUSTICE DEBT: A
BARRIER TO REENTRY 1 (2010), available at http://www.brennancenter.org/sites/default/files/legacy/
Fees%20and%20Fines%20FINAL.pdf [hereinafter BANNON ET AL., CRIMINAL JUSTICE DEBT] (noting that individual in Pennsylvania faced almost $2,500 in costs and fees, roughly three times the
amount imposed for fines and restitution).
4. See AMERICAN CIVIL LIBERTIES UNION, IN FOR A PENNY: THE RISE OF AMERICA’S NEW
DEBTORS’ PRISONS 6–10 (2010), http://www.aclu.org/files/assets/ InForAPenny_web.pdf [hereinafter
ACLU, IN FOR A PENNY]; Katherine Beckett & Alexes Harris, On Cash and Conviction: Monetary
Sanctions as Misguided Policy, 10 CRIMINOLOGY & PUB. POL’Y 509, 516–17 (2011); Alexes Harris, et
al., Drawing Blood from Stones: Legal Debt and Social Inequality in the Contemporary United States,
115 AM. J. SOC. 1753, 1756 (2010) [hereinafter Harris et al., Drawing Blood].
5. See, e.g., ACLU, IN FOR A PENNY, supra note 4, at 69–79; BANNON ET AL., CRIMINAL JUSTICE DEBT, supra note 3, at 27–29.
6. See Research Working Group, Preliminary Report on Race and Washington’s Criminal Justice System, 87 WASH. L. REV. 1, 26–29 (2012).
7. See, e.g., ACLU, IN FOR A PENNY, supra note 4, at 52 (noting that the “mayor’s court” in the
Village of New Rome, Ohio, population 60, collects an average of $400,000 per year); RACHEL L.
MCLEAN & MICHAEL D. THOMPSON, COUNCIL OF STATE GOVERNMENTS, REPAYING DEBTS 8 (2007),
available at http://tools.reentrypolicy.org/repaying_debts/ (noting that administrative assessments on
misdemeanor citations funded nearly all of the budget of the Nevada Administrative Office of the
Courts and that probation fees accounted for forty-six percent of the Travis County, Texas supervision
and corrections budget); Gibeaut, supra note 2, at 54 (noting that the City of Philadelphia collected $2
million and wrote off another $1 million as uncollectible); Steve Thompson, Judges Key to Plan to Fix
City Courts, DALLAS MORNING NEWS, June 19, 2012, at A1 (describing pressure from city council on
local courts to increase collection efforts).
DA’S

Electronic copy available at: http://ssrn.com/abstract=2309093

WRIGHT.DOCX (DO NOT DELETE)

1178

UNIVERSITY OF ILLINOIS LAW REVIEW

9/5/2014 10:54 AM

[Vol. 2014

The incentives surface at various times, including shortly after arrest, when payments from arrestees can short-circuit the criminal justice
process. Demands for payment at a point so early in the process, when
institutional oversight is weak, threaten the presumption of innocence.
They also raise equal justice concerns.
Yet the troubling effects of LFOs extend beyond individual case
outcomes. When the tax-paying public is not asked to fund criminal justice, it gets a distorted message about the real costs of enforcement.
While requiring offenders to internalize the costs associated with their
wrongdoing can be justified in principle (for instance, by promoting an
offender’s acceptance of responsibility), doing so weakens one of the key
moderating influences in public safety politics. As one commentator has
observed, a “government that can fob off costs on criminals has an incentive to find criminals everywhere.”8
This Article proceeds as follows. Part II surveys the historical extraction of payments from suspects and convicts, dating back to the earliest English practices. Part III maps the many ways that this same impulse marks modern-day American criminal justice, through the lens of
LFOs, which have proliferated in form and number since the 1980s.9
Part IV examines the effort by courts, including the U.S. Supreme
Court, to regulate the flow of payments. The case law underscores three
basic concerns. First, that LFOs will corrode the neutrality of government officials and others, who feel the gravitational pull of money as
they resolve cases and process offenders. Second, that LFOs, when
applied uniformly to broad groups of offenders, will undermine the capacity of the criminal justice system to treat those offenders as individuals. Finally, that when there is a disconnect between the nature of the
offense and the entity getting the LFO funds, a risk arises that defendants will pay amounts driven more by the needs of government in a given
moment than by the nature and consequences of their crimes.
Despite several decades of effort, case law has developed little in
the way of principled limits on the use of LFOs. Part V, however, builds
on the common law foundation and offers an institutional alternative to
regulate and rationalize modern LFOs. In particular, we explore the possible use of a LFO Commission to assess, monitor, and control the everexpanding, pell-mell collection of LFOs.

8. See Kevin Baker, Cruel and Unusual Punishment: Why Prisoners Shouldn’t Pay Their Debt,
AMER. HERITAGE MAG., at 22, 22 (July 2006), www.americanheritage.com/content/cruel-and-usual.
In this sense, the rent-seeking dynamic resembles government behavior outside the criminal justice
context. See. e.g., Michael D. Frakes & Melissa F. Wasserman, Does Agency Funding Affect Decisionmaking?: An Empirical Assessment of the PTO’s Granting Patterns, 66 VAND. L. REV. 67 (2013)
(discussing the self-interested actions of the U.S. Patent and Trademark Office in collecting fees).
9. See Harris, et al., Drawing Blood, supra note 4, at 1769; Paul Peterson, Supervision Fees:
State Policies and Practice, 76 FED. PROBATION 40, 40 (2012) (noting mere handful of states in 1980s,
aligned with privatization movement taking root during the time).

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

9/5/2014 10:54 AM

MERCENARY CRIMINAL JUSTICE

1179

The task we undertake here comes at an important time, as the
nation rethinks its decades-long resort to mass imprisonment.10 It remains to be seen whether correctional options that are less expensive
than prison will satisfy the nation’s punitive appetite.11 If governments
do resort to less expensive (non-brick and-mortar) community corrections strategies, LFOs will very likely grow in tandem. This is because
they actually produce revenue for cash-starved criminal justice systems.
LFOs also benefit profit-seeking private vendors, who can wield political
influence. In the absence of principled limits on LFOs and a way to
monitor their creation and use, the nation’s criminal justice systems are
vulnerable to mercenary market forces. Treating this risk as a systemic
problem with incentives rather than simply a form of injustice in particular cases will allow us to find a way forward.
II. A BRIEF HISTORY OF CRIMINAL JUSTICE PAYMENTS
The recent surge in LFOs might appear to be an outgrowth of a
modern cost-benefit mindset or perhaps an example of privatization
trends. In actuality, however, criminal justice payments have a long pedigree. Until the late nineteenth century, private actors dominated criminal justice, with government playing a secondary role in crime investigation and in the prosecution and punishment of criminal offenders. It was
the aggrieved private party and private counsel, not the publicly paid
constable and prosecutor, who held wrongdoers accountable. These private criminal justice actors—including “thief takers,” such as prosecutors
and judges—mainly earned their income by collecting from defendants
and offenders. We summarize this history to show how the American
justice system addressed, with varying degrees of success, the problem
atic incentives influencing private fee-based actors.
A. English Experience
Over a millennium ago in England, parties to disputes of all kinds
resolved their disagreements without government intermediaries, whether by violence or through transfer of goods among themselves.12 Until
the tenth century, criminal wrongs met with private prosecutions, and
offenders were forced to pay, rather than being killed. In non-homicide
cases, compensation went to the victim (“bot”); in homicide cases, to the
10. See NICOLE D. PORTER, THE SENTENCING PROJECT, ON THE CHOPPING BLOCK 2012: STATE
PRISON CLOSINGS 1 (Dec. 2012), available at http://sentencingproject.org/detail/publication.cfm?
publication_id.=421 (discussing the decline in prison population due to policy changes and practices).
11. See WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 55–56 (2011)
(tracing the nation’s evolution from a predisposition for punishment parsimony to the view that “a
healthy criminal justice system should punish all the criminals that it can”); David Cole, Turning the
Corner on Mass Incarceration?, 9 OHIO ST. J. CRIM. L. 27, 44–49 (2011) (lauding recent decreases in
imprisonment rates but questioning whether they will be sustained when budgetary conditions improve).
12. See Daniel R. Coquillette, The Lessons of Anglo-Saxon “Justice”, 2 GREEN BAG 251, 252–54
(1999).

WRIGHT.DOCX (DO NOT DELETE)

1180

UNIVERSITY OF ILLINOIS LAW REVIEW

9/5/2014 10:54 AM

[Vol. 2014

victim’s survivors (“wergild”), based on the victim’s social status.13 Under the reign of Anglo-Saxon kings in the late tenth century, the government increased its role in criminal prosecutions, requiring local noblemen to accuse and arrest suspected criminals in their districts.14
Alongside this shift, compensation (“amercement”) became payable to
the church, king, or community, rather than the injured party.15
The 1300s witnessed major changes in the government actors who
enforced the criminal laws. Most significant was the creation of the office of the justice of the peace (“JP”), who assumed responsibility for
local law enforcement. JPs typically were local landowners without formal legal training, serving under a royal commission.16 They served on a
part-time basis, and presided over petit and grand juries.17 Constables,
who replaced the ancient system of sheriffs,18 were also employed parttime, and apprehended suspects upon orders from a JP, who decided
what further action to take.19
The JPs and constables benefited financially from their criminal justice work. While corruption had been a constant threat in the past,20 the
office of the JP heightened concerns about self-dealing. As England became more urbanized, and crime became more visible, the Crown was
obliged to expand the pool of JPs, deploying men who treated the position less as a social responsibility and more as a source of income. The
JP came to be known as the “trading justice,” who sustained himself on
the basis of fees.21
Judicial officials worked in tandem with part-time police officers,
assuming most prominent form in the mid-1700s with the “Bow Street
runners,” who served the London court situated on Bow Street.22 The
runners were compensated by direct government payment, reward mon13. See 2 FREDERICK POLLACK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH
LAW BEFORE THE TIME OF EDWARD I 450–51 (2d ed. 1923).
14. See Patrick Wormald, Frederic William Maitland and the Earliest English Law, 16 LAW &
HIST. REV. 1, 11 (1998).
15. Id. at 17. English law further commanded that all convicted felons forfeit their chattel to the
king and their land to their lords. See K.J. Kesserling, Felons’ Effects and the Effects of Felony in Nineteenth-Century England, 28 LAW & HIST. REV. 111, 115 (2010). In the 1200s, the Crown grew more
sophisticated and comprehensive in its revenue collection, including in criminal matters. See generally
David Crook, The Later Eyres, 97 ENG. HIST. REV. 241 (1982); J.B. Post, Local Jurisdictions and
Judgment of Death in Later Medieval England, 4 CRIM. JUST. HIST. 1, 12 (1983).
16. See JOHN H. LANGBEIN ET AL., HISTORY OF THE COMMON LAW: THE DEVELOPMENT OF
ANGLO-AMERICAN LEGAL INSTITUTIONS 230 (2009).
17. Id.
18. See R. P. MEAGHER ET AL., EQUITY: DOCTRINES AND REMEDIES § 1-1005, at 3 (1975); see
also LANGBEIN ET AL., supra note 16, at 233.
19. See S.F.C. MILSOM, HISTORICAL FOUNDATIONS OF THE COMMON LAW 415 (2d ed. 1981).
20. This was especially true with respect to the forfeiture of chattel. Kesserling, supra note 15, at
115 (“Medieval petitioners cited abuses by rapacious officials who skimmed profits or even indicted
the innocent in hopes of personal gain.”). Forfeiture thefts remained endemic through the nineteenth
century, with constables and gaolers (jailers) inspiring particular suspicion. Id. at 122–24.
21. See Norma Landau, The Trading Justice’s Trade, in LAW, CRIME AND ENGLISH SOCIETY,
1660–1830 46, 46 (Norma Landau ed., 2002).
22. See generally John Beattie, Garrow and the Detectives: Lawyers and Policemen at the Old
Bailey in the Late Eighteenth Century, 11 CRIM., HIST. & SOCIETIES 2 (2007) (discussing the Bow
Street men and the magistrates on Bow Street during the 1700s).

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1181

ey, and preferment to other offices.23 Around this same time, in an effort
to boost incentives for private prosecution, the Crown instituted a reward system for successful prosecutions of particular serious felonies,
such as highway robbery.24 Rounding out this incentive-based investigative system were the “thief-takers,” entrepreneurs—often with close
connection to the criminal underworld—who gathered evidence and contraband and received rewards.25
The threat to integrity created by such a system of reward was obvious from the outset. With the promise of private gain, individuals were
tempted to accuse falsely; the history of eighteenth-century London contains vivid stories of individuals meeting the hangman as their accusers
profited.26 Indeed, as John Langbein and his co-authors note, concern
over official deceit inspired the English in the 1730s to allow the accused
to employ defense counsel, who could probe the validity of evidence and
cross-examine witnesses.27
The reward system also tainted street-level police behavior, motivating officers to act when rewards were large and dampening their interest when “profits were slight.”28 Sometimes an officer would even ignore a theft as it was about to happen, in the hope of later catching the
thief and securing a reward.29
The last actor on the English enforcement landscape, the public
prosecutor, did not materialize until later. While public officials took
charge of prosecutions in some non-felony offenses starting in 1790
(crowding out private victims as prosecutors), the office of public prosecutor was not created until 1870.30 Before then, prosecutors were compensated like private attorneys for the victims of alleged crimes; they
shared an “entrepreneurial outlook,” and the primary prosecutorial goal
was extraction of payment rather than punishment of defendants.31

23.

See ELAINE A. REYNOLDS, BEFORE THE BOBBIES: THE NIGHT WATCH AND POLICE REMETROPOLITAN LONDON, 1720–1830 46–48 (1998) (discussing the Runners on Bow Street
being retained by the magistrates); J.M. Beattie, Early Detection: The Bow Street Runners in Late
Eighteenth-Century London, in POLICE DETECTIVES IN HISTORY, 1750–1950 15–32 (Clive Emsley &
Haia Shpayer-Makov eds., 2006).
24. See LANGBEIN ET AL., supra note 16, at 674, 676–77.
25. Id. at 677–78; see also GERALD HOWSON, THIEF-TAKER GENERAL: THE RISE AND FALL OF
JONATHAN WILD (1970) (discussing the life of thief-taker Jonathan Wild); Ruth Paley, Thief-Takers in
London in the Age of the McDaniel Gang, c. 1745-1754, in POLICING AND PROSECUTION IN BRITAIN
1750–1850 301 (Douglas Hay & Francis Snyder eds., 1989) (discussing thief-takers during the 18th
century).
26. See LANGBEIN ET AL., supra note 16, at 678–81.
27. Id. at 686.
28. See WILBUR R. MILLER, COPS AND BOBBIES: POLICE AUTHORITY IN NEW YORK AND
LONDON, 1830-1870 28 (1977).
29. Id.
30. See LANGBEIN ET AL., supra note 16, at 712.
31. See Norma Landau, Indictment for Fun and Profit: A Prosecutor’s Reward at EighteenthCentury Quarter Sessions, 17 LAW & HIST. REV. 507, 536 (1999).
FORM IN

WRIGHT.DOCX (DO NOT DELETE)

1182

9/5/2014 10:54 AM

UNIVERSITY OF ILLINOIS LAW REVIEW

B.

[Vol. 2014

Criminal Justice Payments in the United States

Britain’s colonies in North America created a similar for-profit environment. The amateurs who comprised the early constabulary were
paid through a combination of government and private rewards.32 Sheriffs, for instance, received fees when they issued subpoenas.33 JPs also
earned fees for their work.34 Forfeiture proceeds were split between the
government and the enforcement officials involved.35
Post-colonial criminal justice systems left these financial incentives
in place. Prior to the advent of full-time, professional police forces—
which took root in places such as Boston in the mid-nineteenth century36—the fee and reward system held complete sway. State and local
governments developed fee schedules, specifying the monetary benefit
tied to solving different crimes. Naturally, law enforcement focused on
better-paying crimes at the expense of less remunerative ones.37 Private
party rewards, tied to the value of the property allegedly stolen, also
shaped enforcement priorities.38 In such a system, murders received less
attention than robberies and theft, because the latter offered more financial benefit.39
Systemically, the fee and reward system also had other independent
negative effects. Direct monetary payments encouraged collusion between law enforcement and the criminal element, in the form of pay-offs
and kickbacks for orchestrated crimes, with outlaws being set free.40 The
system also discouraged cooperation, as law enforcement officers became
disinclined to work with one another for fear of a diminished take.41
The advent of full-time salaried police changed this landscape.42
These enforcers began to think of themselves as professionals, subject to
professional norms; they wore indicia of government authority, such as
uniforms and badges. Police officers (as they came to be known) measured their success on the job through something other than personal
32. See LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 28, 68
(1993); SAMUEL WALKER, POPULAR JUSTICE: A HISTORY OF AMERICAN CRIMINAL JUSTICE 19–21
(1980).
33. See WALKER, supra note 32, at 19.
34. Elizabeth Dale, Criminal Justice in the United States, 1790-1820: A Government of Laws
or Men?, in 2 THE CAMBRIDGE HISTORY OF LAW IN AMERICA 133, 161 (Michael Grossberg &
Christopher Tomlins eds., 2008).
35. See Jerry Mashaw, Recovering American Administrative Law: Federalist Foundations, 17871801, 115 YALE L.J. 1256, 1314–15 (2006) (noting that percentage of bounty was accorded customs
officers, postmen, tax collectors and naval officers).
36. FRIEDMAN, supra note 32, at 69.
37. See JAMES F. RICHARDSON, THE NEW YORK POLICE: COLONIAL TIMES TO 1901 19 (1970).
38. See MILLER, supra note 28, at 28; RICHARDSON, supra note 37, at 30–32.
39. See RICHARDSON, supra note 37, at 37–49.
40. Id. at 30–32. The arrangement was similar to that characterizing English “thief-takers.” See
supra notes 23–25 and accompanying text.
41. It was even possible that fees and rewards induced criminal activity, because criminal opportunities would increase the enforcers’ monetary intake. See RICHARDSON, supra note 37, at 30–32.
42. See FRIEDMAN, supra note 32, at 70 (“[T]he rise of the police was . . . an event of huge significance. The police interposed a constant, serious, full-time presence into the social spaces of the cities.”).

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1183

profit.43 They ramped up the investigation of “victimless” crimes such
as gambling, drunkenness, and prostitution, even though no reward typically attached to those crimes.44
Private monetary incentive, however, did not disappear.45 Because
the fee and reward system remained in place, strategically minded officers benefited when they were detailed to the most lucrative areas for patrol.46 In addition to direct compensation from fees and rewards, officers
benefited indirectly from the favorable treatment of politically connected
businesses and individuals, allowing them to retain their jobs and advance in departments.47 Officers also benefited from graft and bribes,
based on their power to selectively enforce less serious offenses, such as
those concerning Sabbath observance and operation of brothels.48
Monetary influence also continued to be an issue in the courts. Although victims remained prime instigators of criminal cases,49 more public prosecutors began work in the late nineteenth century. While paid on
a salary basis in some jurisdictions, fee-based systems for prosecutors
continued to predominate, often supplementing the meager public salaries of the day. In New Jersey, for instance, prosecutors received $10 for
a guilty plea, $15 for a jury-determined guilty outcome, and nothing at all
if the jury acquitted the defendant.50 In Philadelphia, prosecutors were
paid for filing charges but not for evaluating or dismissing them.51

43. See Wesley MacNeil Oliver, Magistrates’ Examinations, Police Interrogations, and MirandaLike Warnings in the Nineteenth Century, 81 TUL. L. REV. 777, 797–98 (2007).
44. See FRIEDMAN, supra note 32, at 70.
45. Fee and reward inducements remained available to police officers, and a new actor
emerged—the detective—who proved susceptible to influence. Detective squads were established in
Boston (1846), New York (1857), Philadelphia (1859), and Chicago (1861). This distinct unit in the
police force was prone to private reward or collusion with members of the underworld. See id. at 203–
06; ROGER LANE, POLICING THE CITY: BOSTON 1822-1885 148–52 (1967); ERIC H. MONKKONEN,
POLICE IN URBAN AMERICA: 1860-1920 35–36 (1981). Again, in this sense the detectives resembled
the “thief-takers” of late eighteenth century London.
46. See RICHARDSON, supra note 37, at 62–63.
47. See id. at 57.
48. See FRIEDMAN, supra note 32, at 154–55; RICHARDSON, supra note 37, at 182–210; WALKER,
supra note 32, at 64–65.
49. See Robert M. Ireland, Privately Funded Prosecution of Crime in the Nineteenth-Century
United States, 39 AM. J. LEGAL HIST. 43, 43 (1995).
50. See WALKER, supra note 32, at 71. In early twentieth-century Chicago, the unsalaried office
of the state’s attorney received $20 for each felony conviction and $5 for each misdemeanor conviction, along with ten percent of all forfeited bonds. MICHAEL WILLRICH, CITY OF COURTS: SOCIALIZING JUSTICE IN PROGRESSIVE ERA CHICAGO 15 (2003). In late nineteenth century Kentucky, prosecutors received a percentage of fines recovered, and because fines were imposed only in misdemeanor
and minor felony cases, more serious felonies got short shrift. See Robert M. Ireland, Law and Disorder in Nineteenth-Century Kentucky, 32 VAND. L. REV. 281, 283 (1979).
51. See ALLEN STEINBERG, THE TRANSFORMATION OF CRIMINAL JUSTICE: PHILADELPHIA,
1800-1880 82 (1989). The Fugitive Slave Act of 1850 provides an earlier illustration; the
Act authorized federal commissioners to adjudicate claims that a person was a runaway slave, paying
commissioners $10 per case in which the accuser won and only $5 per case in which the alleged slave
won; ninety percent of the accusations were upheld. See PAUL BREST ET AL., PROCESSES OF CONSTITUTIONAL DECISIONMAKING 226 (5th ed. 2006). Thanks to Michael O’Hear for pointing this out to
us.

WRIGHT.DOCX (DO NOT DELETE)

1184

UNIVERSITY OF ILLINOIS LAW REVIEW

9/5/2014 10:54 AM

[Vol. 2014

Judges personally benefitted from payments to an even greater extent.52 JPs and aldermen, who presided over high-volume, low-level offense courts, secured private money in cases from start to finish.53 At
times, the flow of money triggered concern about conspiracies between
police officers and judicial officials to arrest large numbers of poor people for vagrancy and drunkenness without legal justification.54 It was
even difficult to get a sense of how much money flowed to judges. In
1842, Pennsylvania adopted a law that required judge-aldermen to post a
quarterly statement with the county treasurer specifying all payments
The law, however, was met with widespread underreceived.55
reporting.56 What Allen Steinberg has referred to as “pay-as-you-go”
justice predominated until the early part of the twentieth century.57 In
Chicago, JP tribunals were maligned as “justice shops,” a phrase coined
by historian Michael Willrich, which captured “the unapologetically entrepreneurial spirit”58 and where justice was quite literally for sale.
Finally, no discussion of criminal justice payments would be complete without mention of the corrections system. Dating back to precolonial times, jailers could recover for themselves the costs of incarceration.59 The financial benefits of prison labor, in particular, were also
quite readily apparent to governments. While states contracted out convicts to private business owners prior to the Civil War,60 the practice
came into its heyday in the Reconstruction Era South. During that time,
emancipated African-Americans were frequent targets of police sweeps
for minor offenses such as vagrancy or “suspicious behavior.”61 Upon
52. See James E. Pfander, Judicial Compensation and the Definition of Judicial Power in the
Early Republic, 107 MICH. L. REV. 1, 8–14 (2008).
53. See STEINBERG, supra note 51, at 38–44, 121–25.
54. Id. at 173–76.
55. Id. at 107.
56. Id. at 174, 190.
57. Id. at 106.
58. WILLRICH, supra note 50, at 3–4; see also id. at 10 (noting that “JPs grabbed any business,
civil or criminal, that came their way”); see also STEINBERG, supra note 51, at 192 (“The fee system
negated the magistrates’ ability to properly dispense justice. Selling justice was their living, and their
need to secure that living forced them to modify the product in order to suit those who could pay the
most. One need not be dishonest at all. . . . What was obviously necessary was a new relationship that
placed more distance between the alderman and his ‘customers.’”). The JP system operated until 1905
in Chicago when the city implemented the nation’s first modern municipal court. WILLRICH, supra
note 50, at 40.
59. See, e.g., MARION L. STARKEY, THE DEVIL IN MASSACHUSETTS: A MODERN INQUIRY INTO
THE SALEM WITCH TRIALS 238 (1949) (noting that, in Salem witchcraft era, “[e]ven if you were wholly
innocent . . . you still could not leave unless you had reimbursed the jailer for his expenses in your
behalf, the food he had fed you, the shackles he had placed on your wrists and ankles”). Prisons and
jails, first taking root in Jacksonian America, replaced more physical carceral punishments such as
whippings and the pillory. FRIEDMAN, supra note 32, at 155.
60. See JEREMY TRAVIS, BUT THEY ALL COME BACK: FACING THE CHALLENGES OF PRISONER
REENTRY 153–54 (2005) (noting that Massachusetts contracted out prison labor in 1807 and that in the
following decades New York, Ohio, and other states followed suit); see also Dale, supra note 34, at
161.
61. See DOUGLAS A. BLACKMON, SLAVERY BY ANOTHER NAME: THE RE-ENSLAVEMENT OF
BLACK AMERICANS FROM THE CIVIL WAR TO WORLD WAR II 39–57 (2008); Martha A. Myers, Inequality and the Punishment of Minor Offenders in the Early 20th Century, 27 LAW & SOC’Y REV. 313,
320–23 (1993); see generally MATTHEW J. MANCINI, ONE DIES, GET ANOTHER: CONVICT LEASING IN
THE AMERICAN SOUTH, 1866-1928 (1996).

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1185

conviction, states would “lease” the individuals to businesses operators
operating coal and phosphate mines, pine tree forests (to collect turpentine), and plantation farms.62 Proceeds from the arrangements were far
from insignificant, with one-third of the annual budgets of Alabama and
Tennessee at the time derived from convict leases.63 Leasing continued
well into the twentieth century, with New Hampshire not abandoning the
practice until 1932.64 Also, then as now, state and local governments used
convict labor to perform public work, such as street sweeping and landscape maintenance.65
*****
The foregoing account does not paint a complete historic picture of
criminal justice revenue-generation in the United States. The story continues to the present day. As we discuss later, payments to criminal justice actors, and the potential problems they present, were the subject of
several Supreme Court cases, in the 1920s, 1970s and 1980s. What
changed over time was the precise mix of revenue-generating methods
available to the system. The past three decades have been remarkably
creative times when it comes to devices that financially benefit criminal
justice institutions and actors.66 Part III surveys this expanding menu of
options.
III. SURVEY OF CURRENT LFO PRACTICES
The LFOs that interest us most are typically connected to low-level
offenses, such as misdemeanors and infractions, which dominate the
criminal justice diet.67 Such LFOs thrive in dimly lit institutional environments, attracting less attention than felonies, and typically are imposed by local governments that attract less public scrutiny.68
The LFOs that suspects, defendants, convicts, and prisoners pay
during their modern journeys through the criminal justice system accrue
at different times. Some are extracted before the formal start of any proceedings, such as upon arrest or as a payment to a prosecutor’s office as
62.

See Dale, supra note 34, at 162; FRIEDMAN, supra note 32, at 157; TRAVIS, supra note 60, at

154.
63. See Dale, supra note 34, at 162. Governments profited from the operation of their payment
systems more generally. Oakland, California, for instance, put judges on salary in 1880 and did away
with its system, allowing all monies to go to the city treasury, accounting for a “tidy profit.” LAWRENCE M. FRIEDMAN & ROBERT V. PERCIVAL, THE ROOTS OF JUSTICE: CRIME AND PUNISHMENT IN
ALAMEDA COUNTY, CALIFORNIA 1870-1910 45 (1981).
64. Dale, supra note 34, at 162. Prison labor also netted benefits for states as a result of the
building of furniture and the like, a practice that met its demise as a result of pushback from free labor. TRAVIS, supra note 60, at 155.
65. Dale, supra note 34, at 162–63 (noting that practice was first evidenced in 1790 Philadelphia);
Robbie Brown & Kim Severson, Enlisting Prison Labor to Close Budget Gaps, N.Y. TIMES,
Feb. 24, 2011, http://www.nytimes.com/2011/02/25/us/25inmates.html?pagewanted=all&_r=1& (discussing contemporary use of convict labor in public spaces).
66. See supra notes 1–7 and accompanying text.
67. See Alexandra Natapoff, Misdemeanors, 85 S. CAL. L. REV. 1313, 1320–27 (2012).
68. See Ethan J. Lieb, Localist Statutory Interpretation, 161 U. PA. L. REV. 897, 907–08 (2013)
(noting same and discussing reasons for lack of public salience).

WRIGHT.DOCX (DO NOT DELETE)

1186

9/5/2014 10:54 AM

UNIVERSITY OF ILLINOIS LAW REVIEW

[Vol. 2014

part of an agreement to defer prosecution. Some arise after the filing of
charges but before any entry of judgment, such as the up-front fees that
some jurisdictions charge for access to public defense attorneys. Others
take hold after the entry of judgment, such as the fee an offender pays to
participate in a probation program.
Criminal justice LFOs also vary in the incentives they create for
full-time system insiders: the public and private actors who operate the
criminal justice system. In some situations, the actor who assesses the
LFO is different from the one who collects the LFO and the one who
receives the financial benefit from it. In other cases, the assessor, collector, and recipient of the LFO might all be the same person or entity; and
in other cases still, the funds might go to a cause unrelated to criminal
justice.
A.

Pre-Judgment LFOs

The presumption of innocence does not slow the onset of LFOs.
Criminal suspects and defendants incur these obligations—sometimes by
consent and sometimes not—before a court ever enters judgment or imposes sentence. The obligations are not a consequence of a criminal
conviction; rather, they are the practical result that flows from a criminal
charge, or sometimes from a potential charge.
1.

Booking Fees

Individuals ensnared in the criminal justice system feel the financial
consequences at the very outset of the process when they are booked at a
police station. At least six states authorize local governments to assess
69
fees and several local governments in other states impose fees on their
70
71
own. The fee amounts range from twelve dollars (Michigan) to several
72
hundred dollars (California). The state provisions apply only to booked
individuals who are actually convicted of a crime; local laws are less clear
73
on the issue. Some of these booking fees are justified as an effort to
recover the government’s enforcement costs. In Colorado, for instance,
sixty percent of fees generated go to a county’s general fund, twenty percent go to deputy sheriff training, and twenty percent to mental health
74
programs.

69. See CAL. GOV’T. CODE § 29950.1 (West 2014); COLO. REV. STAT. § 30-1-104 (2014); MICH.
COMP. LAWS. § 801.4b (2014); MINN. STAT. § 641.12 (2014); OHIO REV. CODE ANN. § 341.12 (West
2014); WASH. REV. CODE § 70.48.390 (West 2014).
70. See, e.g., City of Hammond, Indiana, available at http://www.hammondpolice.com/Jail.htm.
71. MICH. COMP. LAWS. § 801.4b.
72. See People v. Almanza, 142 Cal. Rptr. 926, 929 (Cal. App. 2013) (noting Riverside County
fee of $414.45).
73. See, e.g., Markadonatos v. Village of Woodridge, 739 F.3d 984 (7th Cir. 2014) (discussing
Village of Woodridge, Illinois law).
74. Manny Gonzales, County Jails’ Booking Fees Cause Clamor, DENV. POST, July 12, 2005, at
A1.

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

2.

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1187

Prosecutorial Intervention

Prosecutors decide whether or not to file charges and thus wield
major gate-keeping authority over the system. While in some cases prosecutors decline to file charges because the evidence is not sufficient, in
others they defer prosecution by agreement with the defendant. Under
these “deferred prosecution agreements,” the potential defendant agrees
to perform community service, to obtain drug treatment, or to take other
actions that are commonly associated with criminal sentences.75 If the
suspect successfully completes the agreed-upon program, the prosecutor
declines prosecution. If the individual fails to complete the program, the
criminal case goes forward, often on the basis of an admission of guilt
built into the initial agreement.
A variation on this theme is known as “pre-trial diversion.”76 In
such circumstances, a prosecutor can suspend criminal proceedings for a
defendant, after filing initial charges, based on the defendant’s willingness to complete probation-like conditions.77 Again, if the defendant
completes the preconditions, the prosecutor dismisses the pending
charges. A similar type of program allows the prosecutor to supervise
the defendant after a criminal conviction but before the court imposes
sentence; if the offender successfully completes the conditions, the court
does not enter judgment on the conviction.78
Some prosecutors have the power to collect fees from suspects during the period that they monitor the suspect’s progress. About twothirds of the states that authorize deferred prosecution programs by statute also allow prosecutors to collect LFOs.79 For example, Oklahoma
allows for local creation of a “supervision” program, which empowers
the district attorney to enter into a pre-charge agreement with a criminal
suspect for up to three years.80 Individuals who enter this program pay a
75. While such agreements are best known in the white collar criminal cases, they are enjoying
increasing use in more traditional criminal justice contexts. See Matthew J. Parlow, The Great Recession and Its Implications for Community Policing, 28 GA. ST. U. L. REV. 1193, 1233–35 (2012).
76. See NAT’L ASS’N OF PRETRIAL SERVS. AGENCIES, PROMISING PRACTICES IN PRETRIAL
DIVERSION 5 (2009), available at www.napsa.org./publications.htm.
77. See BEN KEMPINEN, DIVERSION PROGRAMS: A SURVEY OF WISCONSIN PRACTICES 8–10
(2010), available at https://media.law.wisc.edu/m/xmzdm/diversion-report-2010.pdf.
78. See NAT’L ASS’NO OF PRETRIAL SERVS. AGENCIES, supra note 76, at 5; Tom Humphrey,
House Votes to Abolish Pre-Trial Diversion Program, KNOX NEWS (May 15, 2011), http://blogs.knox
news.com/humphrey/2011/05/house-votes-to-abolish-pre-tri.html.
79. See NAT’L ASS’N OF PRETRIAL SERVS AGENCIES, PRETRIAL DIVERSION IN THE 21ST CENTURY 8 (2009) [hereinafter IN THE 21ST CENTURY], available at http://www.napsa.org/publications/
NAPSAPretrialPracticeSurvey.pdf. In Texas, a court may impose a $60 per month supervision fee for
a defendant who participates in a pre-trial intervention program. TEX. CODE CRIM. PROC. ANN. art.
102.012(a) (West 2014). The court also has the discretion to order the defendant to reimburse the
corrections department for additional expenses related to the supervision. Id. 102.012(b). As of 2007,
the district attorney may also impose an additional fee of up to $500 to reimburse the county for the
defendant’s participation in the program. Acts 2007, 80th Leg., ch. 1226, § 2.
80. OKLA. STAT. tit. 22, § 305.1 (West 2014). Oklahoma has authorized such programs since
1979. 1979 Okla. Sess. Law ch. 226, § 1. When the accused enters into the agreement, he or she agrees
to “waive any rights to a speedy accusation, a speedy trial, and any statute of limitations, and agrees to
fulfill such conditions to which the accused and the State . . . may agree including, but not limited to,
restitution and community services.” OKLA. STAT. tit. 22, § 305.2(A)

WRIGHT.DOCX (DO NOT DELETE)

1188

UNIVERSITY OF ILLINOIS LAW REVIEW

9/5/2014 10:54 AM

[Vol. 2014

$40 monthly supervision fee, and the proceeds support the operation of
prosecutor offices.81 In 2009, hoping that program proceeds would offset
a twenty-three percent decrease in prosecutor funding,82 the Oklahoma
Legislature increased the length of the supervision period and the
monthly fee amount from $20 to $40.83 Prosecutor supervision in
Oklahoma ballooned during the period, from 16,000 offenders in 2008 to
38,000 in 2010.84 Similarly, a pretrial diversion program in Alabama supports major portions of the travel budget and other functions for state
prosecutors.85
3.

Pre-Trial Abatement

In some instances, local law or practice allows defendants in minor
cases to pay an amount to the police or the courts that stops the prosecution from going forward. The payment, which takes various names, results in a dismissal of the charges or a “stay of adjudication,” blocking
any conviction from appearing on the defendant’s criminal record.
Minnesota, for instance, empowers localities to impose a “prosecution
cost,” permitting defendants in traffic and lesser misdemeanor cases to
pay an amount above and beyond the face amount of a traffic ticket to
resolve the case without a conviction.86 Similarly, under the District of
Columbia’s “post-and-forfeit” statute, the police can offer minor offense
arrestees the chance to “post” and immediately “forfeit” a relatively
small amount of money (typically on the order of $50 to $150) that flows
to the Metropolitan Police Department, in exchange for waiving any
right to an adjudication on the merits.87 The law treats the payment as
bail to secure the defendant’s release, and the “forfeiture” of the bail
leads to a dismissal rather than a conviction.88

81. OKLA. STAT. tit. 22, § 991d(A)(2). The Oklahoma District Attorneys Council receives the
fees and disburses all funds to individual prosecutorial districts. OKLA. STAT. tit. § 215.30(D).
82. See Nathan Koppel, Probation Pays Bills for Prosecutors, WALL ST. J., Jan. 20, 2012, http://
online.wsj.com/news/articles/SB10001424052970203750404577171031387548446.
83. Compare OKLA. STAT. tit. 22, § 991d(B) (2003 & Supp. 2011) (effective July 1, 2009) with
OKLA. STAT. tit. 22, § 991d(B) (2003).
84. Id. This 38,000 includes 27,600 individuals with potential misdemeanor charges and 10,500
people with potential felony charges. Jaclyn Cosgrove, Supervision Program Earns Millions, OKLAHOMA WATCH, Dec. 12, 2011, http://oklahomawatch.org/2011/12/12/supervision-program-earnsmillions/.
85. See Debbie Ingram, DA Oversees Spending of Pretrial Diversion Receipts Totaling $310,000,
DOTHAN EAGLE, May 5, 2009, http://www.dothaneagle.com/news/article_4a4d89ea-095e-5eb4-89a3-46
fdf09f877d.html.
86. See Pam Louwagie & Glenn Howatt, Some Drivers Find That Cash Can Make the Ticket Go
Away, STAR TRIBUNE (Minneapolis), Apr. 16, 2012, http://www.startribune.com/local/144099386.html.
87. See Zoe Tillman, D.C. Judge Weighs Constitutional Challenge to “Post and Forfeit,” THE
BLT: THE BLOG OF LEGAL TIMES (Mar. 20, 2012), http://legaltimes.typepad.com/blt/2012/03/dc-judgeweighs-constitutional-challenge-to-post-and-forfeit.html.
88. Although the charges remain on the person’s arrest record, for most offenses a request can
be made to seal the record, either immediately upon an assertion of actual innocence or within two
years after dismissal of the charges. See Jamison Koehler, Constitutionality of D.C.’s “Post-andForfeit” Statute Upheld, KOEHLER LAW (Apr. 3, 2012), http://koehlerlaw.net/2012/04/constitutionalityof-d-c-s-post-and-forfeit-statute-upheld/.

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

4.

9/5/2014 10:54 AM

MERCENARY CRIMINAL JUSTICE

1189

Bail

Bail also asks that defendants open their wallets. Criminal courts in
most states release some defendants before trial based on a payment,
either present or future. In all but a few states, commercial bail bond
dealers promise the courts to pay the bail amount if the defendant fails to
appear for a later hearing; they make this promise after receiving payment (typically ten percent of the total bail amount) from the defendant.89 When bailees abscond, it is common for courts to waive their right
to collect the full bond amount, resulting in economic windfalls for dealers.90 Moreover, states sometimes tack on “administrative” LFOs to bail
amounts and collect them from bond dealers or defendants, even after
acquittals.91 Finally, bailees can incur added expense when they are required to pay the public or private entities overseeing their pretrial supervision in the community.92
5.

Application Fees for Defense Counsel

While the state must provide a defense attorney without charge to
an indigent defendant who faces charges that could end in the deprivation of physical liberty,93 that lawyer is often not cost-free. Even if an
individual qualifies as indigent, many jurisdictions require the defendant
to pay an up-front “application” fee or “co-payment” for appointed
counsel, in an amount tied to the severity of the seriousness of the
charge.94 Some, but not all, of these jurisdictions allow judges to waive
the fees in cases of extreme poverty.95
89. See generally MARC L. MILLER & RONALD
TION AND ADJUDICATION 105–14 (4th ed. 2011).

F. WRIGHT, CRIMINAL PROCEDURES: PROSECU-

90. See Yamil Berard, Defendants, Bondsmen Sometimes Get Off the Hook in Tarrant County,
STAR-TELEGRAM (Dallas), Apr. 1, 2012, http://www.star-telegram.com/2012/04/01/3852095/defendants
-bondsmen-sometimes.html; Yamil Berard, Millions of Dollars Go Uncollected in Tarrant County Bail
Bond System, STAR-TELEGRAM (Dallas), Apr. 1, 2012, http://www.star-telegram.com/2012/04/01/385
0904/millions-of-dollars-go-uncollected.html; Yamil Berard, Bail Bond System Rife with Controversy
About Preferential Treatment, STAR-TELEGRAM Dallas, Apr. 2, 2012, http://www.star-telegram.com/
2012/04/02/3855175/bail-bond-system-rife-with-controversy.html.
91. See, e.g., LA. REV. STAT. ANN. § 22:822 (2014) (imposing two percent “fee on premium for
all commercial surety underwriters who write criminal bail bonds in the State of Louisiana”); see also
Larry Flowers, State Law Allows Sheriffs to Collect Bail Bond Fee, WSMV.COM (July 25, 2011),
http://www.wsmv.com/story/14985604/state-law-authorities-tn-sheriffs-to-collect-500-bail-bond-fee
(describing bail bond fee in Tennessee).
92. See, e.g., Pretrial Services, ALACHUA COUNTY, FLORIDA, http://www.alachuacounty.us/
Depts/CourtServices/Pages/PretrialServices.aspx (noting that “defendants supervised on electronic
monitoring pay nominal fees to defray program costs”); THE FL. LEGISLATURE OFFICE OF PROGRAM
POLICY ANALYSIS & GOVT. ACCOUNTABILITY, Pretrial Release Programs Generally Comply with
Statutory Data Collection Requirements (Dec. 2011), http://www.oppaga.state.fl.us/MonitorDocs/
Reports/pdf/.pdf (noting that programs most commonly charged fees for electronic monitoring).
93. See Alabama v. Shelton, 535 U.S. 654, 662 (2002) (reaffirming the “actual imprisonment”
standard).
94. See Ronald F. Wright & Wayne A. Logan, The Political Economy of Application Fees for
Indigent Criminal Defense, 47 WM. & MARY L. REV. 2045, 2051–54 (2006).
95. In two states, Florida and Ohio, the fee must be paid even if the defendant is acquitted or the
charges are dropped. See FLA. STAT. § 27.52(1)(b) (2014); OHIO REV. CODE ANN. § 120.36(A)(1)
(West 2014).

WRIGHT.DOCX (DO NOT DELETE)

1190

9/5/2014 10:54 AM

UNIVERSITY OF ILLINOIS LAW REVIEW

B.

[Vol. 2014

Post-Judgment LFOs

Once the justice system evaluates the evidence and adjudicates the
charges, LFOs really come into their own. Post-judgment LFOs go by
many different names, many different actors assess and collect them, and
they serve many different avowed purposes.
1.

Investigation, Prosecution, and Court Costs

Criminal courts in all but a few states have the power to assess costs
against convicted offenders, and the majority of states have legislation
mandating assessments after conviction.96 A smaller number of states
permit assessment of costs as a discretionary matter.97 Local governments in some states have the express authority to impose assessments
on their own.98 The variety of costs and the amounts they entail have
increased significantly over time, often serving as a major fiscal benefit
for governments.99
Consider first the LFOs that apply across the board to all offenders.
In Florida, such assessments include a mandatory court cost ranging from
$60 (traffic offenses) to $225 (felonies),100 and a mandatory minimum $50
assessment for the “cost of prosecution” payable to the “State Attorneys
Revenue Trust Fund.”101 This is in addition to a non-waivable $50 cost
payable to the “Crimes Compensation Trust Fund,”102 a $20 court cost for
“crime stoppers” programs,103 and a $3 cost directed to the “Additional
Court Cost Clearing Trust Fund” (required even when prosecution is
withheld).104 Defendants might also be required to pay for investigative
costs incurred by law enforcement agencies, including the salaries of
permanent employees and prosecutors105 and $100 allocated to the “Operating Trust Fund of the Department of Law Enforcement” to help fi-

96. See, e.g., ALA. CODE § 12-19-182 (2014); GA. CODE. ANN. § 17-11-1 (West 2014); KY. REV.
STAT. ANN. § 23A.205 (West 2014); NEB. REV. STAT. ANN. § 29-2207 (West 2014); N.C. GEN. STAT.
ANN. § 7A-304 (West 2014); OHIO REV. CODE ANN. § 2947.23 (West 2014); VA. CODE ANN. § 17.1275 (West 2014); WASH. REV. CODE ANN. § 36.18.020 (West 2014); WASH. REV. CODE ANN. §
10.46.190 (West 2014).
97. See, e.g., CAL. PENAL CODE § 1203.1m (2014); IOWA CODE ANN. § 356.7 (West 2014); MONT.
CODE ANN. § 46-18-232 (West 2014); NEV. REV. STAT. ANN. § 207.410 (West 2014); N.J. STAT. ANN. §
22A:3-4 (West 2014); N.M. Stat. Ann. § 31-12-6 (West 2014); N.D. CENT. CODE ANN. § 27-01-10 (West
2014); WYO. STAT. ANN. § 7-11-505 (West 2014). Three states do not assess costs against defendants
after conviction. HAW. REV. STAT. § 706-640 (West 2014); ME. REV. STAT. ANN. tit. 15, § 1901 (2014);
UTAH CODE ANN. § 77-18-7 (West 2014).
98. See BANNON ET AL., CRIMINAL JUSTICE DEBT, supra note 3, at 36–37 n.26 (noting such authority in seven of fifteen states surveyed).
99. See generally CARL REYNOLDS & JEFF HALL, CONFERENCE OF STATE COURT ADMIN’RS,
2011-2012 Policy Paper: Courts Are Not Revenue Centers (2012), available at http://cosca.ncsc.org/~/
media/Microsites/Files/COSCA/Policy%20Papers/CourtsAreNotRevenueCenters-Final.ashx.
100. FLA. STAT. ANN. § 938.05 (West 2014).
101. Id. § 938.27(8).
102. Id. § 938.03.
103. Id. § 938.06(1).
104. Id. § 938.01(1).
105. Id. § 938.27(1).

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1191

nance state crime laboratories.106 The state also allows counties with
“teen courts” to require anyone convicted of any nontraffic offense to
pay $3 to help fund the court.107
Other states have similar laws. In Illinois, for instance, a $10 medical assessment is levied on persons convicted of crimes, regardless of
whether the individual receives any medical treatment in the corrections
system.108 The California legislature, to “maintain adequate funding for
court facilities,” assesses $30 for misdemeanor and felony convictions
and $35 for each infraction,109 and extracts a $20 “court security fee” for
every conviction.110 In Alabama, increased court fees allow the judiciary
to hire additional courtroom personnel.111
Second, consider the cost assessments that are tied to particular
kinds of cases. Colorado, for instance, targets convicted sex offenders
with “surcharges,” ranging from $150 for a class three misdemeanor to
$3000 for a class two felony.112 States also extract fees when they require
convicted sex offenders to register.113 With drug cases, jurisdictions
commonly seek payment for laboratory services.114 State pension funds
for police officers and court clerks in Georgia receive state contributions
based on the number of police officer traffic tickets that result in convictions.115

106. Id. § 938.055; see also Laurie Mason Schroeder, Cost of Crime Going Up in Bucks County, BUCKS COUNTY COURIER TIMES, Mar. 22, 2011, http://www.buckscountycouriertimes.com/news/
local/cost-of-crime-going-up-in-bucks-count/article_53130385-0d57-5342-86c9-d409d4dd6319.html
(describing new policy of the Bucks County DA's office to bill some discovery and investigatory fees,
such as DNA and forensic tests, to the defendant).
107. FLA. STAT. ANN. § 938.19(1)–(3).
108. People v. Coleman, 936 N.E.2d 789, 793 (Ill. App. Ct. 2010) (interpreting 730 ILL. COMP.
STAT. ANN. § 125/17 (West 2008), known as the County Jail Act, which provides for an “Arrestee’s
Medical Costs Fund”).
109. CAL. GOV. CODE § 70373(a)(1) (West 2014).
110. CAL. PENAL CODE § 1465.8(a)(1) (West 2014); see also Duane D. Stanford, Audit Urges End
to Court Fees: Agencies Would be Funded Directly, ATLANTA J. CONST., Dec. 3, 2001, at B1 (stating
that police officers and prosecutors receive money from court fees for training programs; police officers, court clerks, and sheriffs receive money from court fees for retirement).
111. See Elane Jones, Rise in Court Fees May Help Some Offices at Courthouse, DAILY MOUNTAIN EAGLE (Jasper, Ala.), July 6, 2012, http://www.mountaineagle.com/view/full_story/19215963/
article-Rise-in-court-fees-may-help-some-offices-at-courthouse?instance=yourstories (describing how
a new law that raises court costs and creates a new fee for posting bonds will increase the budget for
the Walker County, Alabama courthouse and allow the courthouse to hire more employees).
112. COLO. REV. STAT. § 18-21-103(1)(a)-(h) (2014); see also Thomas Content, Proposal Pulls
Plug on Utility Surcharge: Proceeds Are Used to Pay District Attorneys, MILWAUKEE J. SENTINEL, Apr.
6, 2011, at D1 (describing “justice information system surcharge” assessed as part of speeding tickets
and other violations that goes to retain experienced DAs).
113. See, e.g., ARIZ. REV. STAT. § 13-3821(Q) (2014) ($250 fee); COLO. REV. STAT. § 16-22108(7)(a) (West 2014) ($75 fee); GA. CODE ANN. § 42-1-12 (West 2014) ($250 fee).
114. See, e.g., People v. Taylor, 12 Cal. Rptr. 3d 923, 925 (Cal. Ct. App. 2004) (discussing various
surcharges imposed as a result of assessing mandatory “drug laboratory analysis fee”).
115. See Wesley Brown, Police Retirement Fund, County Programs Benefit From Traffic Ticket
Fines, AUGUSTA CHRONICLE, June 12, 2013, http://chronicle.augusta.com/news/crime-courts/2013-0612/police-retirement-fund-county-programs-benefit-traffic-ticket-fines (describing a program where
police officers' retirement funds and pensions are directly increased by how many traffic tickets the
individual officer and entire police force writes. A portion of the traffic tickets also goes to the retirement funds for Superior Court clerks).

WRIGHT.DOCX (DO NOT DELETE)

1192

UNIVERSITY OF ILLINOIS LAW REVIEW

9/5/2014 10:54 AM

[Vol. 2014

If an offender is late in paying a LFO, a penalty can be imposed,
based on a flat rate or a percentage of the amount owed.116 Late payment
can also get private collection agencies involved, who themselves impose
charges.117 Separate charges for extended payment plans can also ratchet
up payments, with penalties again attaching to late payments.118
2.

“Pay-to-Stay”: Detention LFOs

Assessments are also very commonly imposed upon offenders sentenced to prison or jail terms. Despite the typically limited financial
means of inmates, state and local governments usually charge offenders
for the costs of incarceration.119 Michigan, for instance, allows counties to
recover up to $60 per day from inmates,120 and Arizona authorizes a $2
monthly electric utility fee.121 The total amounts collected can be substantial: New York State, for example, collected $22 million between
1995 and 2003.122
Charges for telephone calls are also a significant moneymaker. The
charges—paid by recipients of “collect” calls from inmates, based on
rates far above the prevailing market—generate millions of dollars annually, with most of the money going to contractors.123
3.

Probation and Parole Fees

Jurisdictions also increasingly impose fees for community corrections services, with amounts tied to the duration of supervision.124 In
Maryland, the parole supervision fee is $40 per month, which can amount
to several hundred dollars during a parole term.125 In Pennsylvania, pris116. BANNON ET AL., CRIMINAL JUSTICE DEBT, supra note 3, at 17 (twenty percent rate in
Michigan, thirty percent rate in Illinois, and $300 flat rate in California).
117. Id. (noting thirty percent rate in Alabama and forty percent rate in Florida).
118. Id. at 41 n.65 (noting inter alia $135 fee in one Florida county and $100 fee in New Orleans).
119. Id. at 7 (noting that all fifteen sates surveyed authorize recovery of jail and prison costs); Fox
Butterfield, Many Local Officials Now Make Inmates Pay Their Own Way, N.Y. TIMES, Aug. 13, 2004,
at A1; Nate Rawlings, Welcome to Prison. Will You Be Paying Cash or Credit?, TIME, Aug. 21, 2013,
http://nation.time.com/2013/08/21/welcome-to-prison-will-you-be-paying-cash-or-credit/.
120. MICH. COMP. LAWS ANN. § 801.83(1)(a)(3) (West 2014).
121. ARIZ. REV. STAT. ANN. § 31-239(A) (2014).
122. BRENNAN CENTER FOR JUSTICE, THE NEW YORK BAR RE-ENTRY REPORT CHAPTER ON
FEES AND FINES 178 (2006) [hereinafter NEW YORK BAR RE-ENTRY REPORT], available at
http://www.brennancenter.org/sites/default/files/legacy/Justice/F&F%20CollateralConsequencesRepor
-section3.pdf.
123. See Peter R. Shults, Note, Calling the Supreme Court: Prisoners’ Constitutional Right to Telephone Use, 92 B.U.L. REV. 369, 371 (2012) (noting that state prison systems receive over $152 million
annually from the commissions and that the market itself yields more than $362 million in annual gross
revenue).
124. David E. Olson & Gerard F. Ramker, Crime Does Not Pay, But Criminals May: Factors
Influencing the Imposition and Collection of Probation Fees, 22 JUST. SYS. J. 29, 30 (2001); Laura
Maggi, “Pay or Stay” Jail Terms Decried: System is Unfair to Poor, Reports Say, NEW ORLEANS TIMES
PICAYUNE, Oct. 4, 2010, http://www.nola.com/saintsbeat/weblog/index.ssf?/printer/printer.ssf?/base/
news-15/1286173220306110.xml&coll=1&style=print; Cristeta Boarini, State Law Allows Sheriffs to
Collect Bail Bond Fee, WSMV.COM (Jul. 25, 2011), http://www.wsmv.com/story/14985604/state-lawauthorities-tn-sheriffs-to-collect-500-bail-bond-fee.
125. DILLER ET AL., MARYLAND’S PAROLE, supra note 2, at 5.

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1193

oners are ineligible for probation, parole, or accelerated disposition unless they pay a $60 fee, not subject to waiver for indigents.126 In many
states supervision periods can be extended for failure or inability to
pay.127
It is also common for profit-oriented private firms to contract with
the government to provide probation services.128 A court, for example,
might place an offender on probation for public drunkenness and assess
a fine of $270. The private probation company will then add a $15 enrollment fee and $39 per month for supervision and services.129 Use of
Global Positioning System devices to track probationers, parolees, and
others (typically convicted sex offenders “off-paper”),130 and operation of
halfway houses131 are other ways for private contractors to get involved.
When individuals are sentenced to community service, they can be required to buy an insurance policy from a private provider.132 Finally, as
with costs, governments frequently outsource the collection of supervision-related fees and allow private firms to levy significant additional
surcharges.133
4.

Fines

Fines are intended to punish individuals for misconduct and are typically set by statute. They can be mandatory or discretionary, and the
court can make individualized findings about the offender’s ability to pay
before setting the amount of the fine.134 While U.S. courts have traditionally relied less on fines than their western European counterparts,135
today, fines are imposed on thirty-three percent of convicted felons136 and
enjoy even greater use in lower-level courts of limited jurisdiction.137
While the law often specifies a fine amount, tied to the severity of the
126. BANNON ET AL., CRIMINAL JUSTICE DEBT, supra note 3, at 22.
127. Id. at 35 n.19, 54–55 nn.170–176.
128. See, e.g., FLA. STAT. ANN. §§ 948.15, 948.09 (West 2014); GA. CODE ANN. § 42-8-100 (2014).
129. See Ethan Bronner, Poor Land in Jail as Companies Add Huge Fees for Probation, N.Y.
TIMES, July 2, 2012, http://www.nytimes.com/2012/07/03/us/probation-fees-multiply-as-companiesprofit.html?pagewanted=all&_r=0.
130. See Adam Liptak, Debt to Society Is Least of Costs for Ex-Convicts, N.Y. TIMES, Feb. 23,
2006, http://www.nytimes.com/2006/02/23/national/23fees.html?_r=1&oref=slogin.
131. See, e.g., FLA. STAT. ANN. § 944.026 (West 2014) (authorizing contracts for community-based
facilities to provide services for probationers).
132. Liptak, supra note 130.
133. See BANNON ET AL., CRIMINAL JUSTICE DEBT, supra note 3, at 6 (noting that Florida law
allows private collection agencies to charge up to a forty percent surcharge on amounts collected); id.
at 45 n.94 (noting that Maricopa County, Arizona allows private agencies to collect an eighteen percent surcharge); id. at 45–46 n.94 (twenty percent private surcharge in Missouri); Pay to Stay: Jails
Raise Revenue by Charging Inmates, WASHINGTON POST TV (Sept. 5, 2013), http://www.washington
post.com/posttv/video/onbackground/payi-to-stay-jails-raise-revenue-by-charging-inmates/2013/09/06/
8398a526-164f-11e3-be6e-dc6ae8a5b3a8_video.html.
134. See, e.g., State v. Cooper, 760 N.E.2d 34, 36–37 (Ohio Ct. App. 2001).
135. Martin H. Pritikin, Fine-Labor: The Symbiosis between Monetary and Work Sanctions, 81 U.
COLO. L. REV. 343, 353–55 (2010).
136. R. Barry Ruback & Valerie Clark, Economic Sanctions in Pennsylvania: Complex and Inconsistent, 49 DUQ. L. REV. 751, 753 (2011).
137. One study reported that fines are used in eighty-six percent of such courts. Id. at 754.

WRIGHT.DOCX (DO NOT DELETE)

1194

UNIVERSITY OF ILLINOIS LAW REVIEW

9/5/2014 10:54 AM

[Vol. 2014

offense, sometimes only a statutory range applies. In such instances,
courts impose a “going rate” for a fine, assessing amounts based on local
norms.138
Fines can also trigger “surcharges.” In California, a surcharge allocated to the “State Court Facilities Construction Fund” can amount to
fifty percent of any fine imposed,139 and fines require six additional payments, based on state or local law.140
Experience suggests that fines often figure centrally in budgets, especially for local governments.141 For instance, there is empirical support
for the common anecdotal observation that police departments use traffic fines to generate revenue for local government coffers.142 Recent controversy has swirled around aggressive towing for parking violations143
and traffic light cameras that generate automatic citations and large
amounts of revenue.144
Some statutes also direct portions of a criminal fine or restitution to
the prosecutor’s office. For instance, a Louisiana statute awards a twenty
percent fee to the District Attorney for successful collection of a worthless check.145 The law led to the potential collection of $300,000 for the
prosecutors in one case involving gambling debts.146
138. Id. at 755.
139. See People v. Taylor, 12 Cal. Rptr. 3d 923, 925–26 (Cal. Ct. App. 2004) (discussing CAL.
GOV. CODE § 70272 (West 2003)). Arizona adds a surcharge of forty-seven percent to the fine. ARIZ.
REV. STAT. ANN. § 12-116.01(A)-(C) (2014); see also, e.g., CAL. PENAL CODE § 1464(a) (West 2014)
(imposing additional $10 penalty every fine, penalty, or forfeiture imposed); GA. CODE ANN. § 15-2173(a)–(b) (2014) (ten percent of fine amount plus lesser of $50 or ten percent of fine).
140. People v. Castellanos, 98 Cal. Rptr. 3d 1, 7–8 (Cal. Ct. App. 2009).
141. See Todd C. Elliott, Taking Jail Time Over Fines Affecting City Revenues, EUNICETODAY.COM (Sept. 20, 2013), http://www.eunicetoday.com/taking-jail-time-over-fines-affecting-cityrevenues (describing impact on city operations in small Louisiana city when fine revenues decrease).
142. See Thomas A. Garrett & Gary A. Wagner, Red Ink in the Rearview Mirror: Local Fiscal
Conditions and the Issuance of Traffic Tickets, 52 J.L. & ECON. 71, 71 (2010) (noting, based on 19902003 data, that tickets increase in volume in tandem with budgetary stress).
143. See, e.g., Ashley Halsey III, District Rakes in $92 Million from Parking Tickets, WASH. POST
(Mar. 11, 2013), http://www.washingtonpost.com/local/trafficandcommuting/district-rakes-in-92-million
-from-parking-tickets/2013/03/10/10270022-8835-11e2-9d71-f0feafdd1394_story.html; Victor Zapana,
Angry About Towing? If You’re in Montgomery, Join the Club, WASH. POST (June 14, 2012), http://
www.washingtonpost.com/local/dc-politics/angry-about-towing-if-youre-in-montgomery-join-the-club/
2012/06/14/gJQAwwVodV_story.html.
144. See William D. Mercer, At the Intersection of Sovereignty and Contract: Traffic Cameras and
the Privatization of Law Enforcement Power, 45 U. MEM. L. REV. 379 (2013); Larry Copeland, Questions Cloud Red-Light Camera Issue, USA TODAY, Apr. 9, 2012, http://usatoday30.usatoday.com/
news/nation/story/2012-04-08/red-light-cameras-debate/54117382/1; Jason Noble, States Split Over
Traffic Cameras, USA TODAY, Feb. 2, 2012, http://usatoday30.usatoday.com/news/nation/story/201202-02/traffic-cameras/52931270/1. In a recent brazen (or refreshing, depending on one’s perspective)
reflection of the profit motive at work, a Tampa, Florida, city council member, in reaction to concerns
raised over a shabby area of town negatively affecting reaction of attendees at the 2012 Republican
National Convention in Tampa, urged that the city pay for improvements with “fines [from the cameras], which are currently on a pace to generate almost triple the originally projected revenue . . . .”
Richard Danielson, Tampa’s Bayshore Boulevard Criticized as Too Shabby for Republican National
Convention, TAMPA BAY TIMES (Jan. 7, 2012), http://www.tampabay.com/news/localgovernment/
tampas-bayshore-boulevard-criticized-as-too-shabby-for-republican-national/1209582.
145. LA. REV. STAT. ANN. § 16:15(C)(5) (2014).
146. See John Simerman, DA May Get Windfall From Collecting Gambling Debt: Car Dealer's
Lawyer Says Game is Rigged, TIMES PICAYUNE (New Orleans), Nov. 11, 2011; D.A. Doubles Restitution Collection, CLOVIS NEWS J. (Jan. 3, 2013), http://cnjonline.com/2013/01/03/d-a-doubles-restitution-

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

5.

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1195

Forfeiture

Asset forfeiture laws allow governments to seize money and property from individuals or entities after proving some connection to commission of an offense.147 Such laws are commonly deployed in drug cases,
with proceeds often going directly to police148 and prosecutors,149 presenting obvious enforcement incentives. At the same time, forfeiture proceeds are known to influence fiscal appropriations, with state and local
budgets relying on seizure amounts in place of tax revenue.150
Some forfeitures only occur after a criminal conviction and are a
component of the sentence. Others, however, go forward regardless of
the outcome in criminal proceedings, and the government proves its case
under specialized procedural rules drawn from the world of civil litigation. Lately, news reports have surfaced of troubling instances of
“cash-for-freedom deals,” involving police vehicle stops that result in no
charges being brought, although individuals are allowed to leave only if
they forfeit property.151 In some cases, the government dismisses criminal
proceedings in exchange for a defendant’s agreement not to contest civil
forfeiture claims.152 For example, in Shelby County, Texas a woman
caught with $620,000 cash was allowed to go forward without criminal
charges after forfeiting the money to the DA’s office.153
An extensive scholarly body of literature examines the distorting influence of asset forfeiture laws.154 We note the laws here simply to call

collection/ (noting that in 2012, $7000 of $77,152 collected by the local DA’s office in restitution fees
were pre-prosecution fees paid to a state fund to pay for training for law enforcement and prosecutors).
147. See Asset Forfeiture, FBI, http://www.fbi.gov/about-us/investigate/white_collar/assetforfeiture (last visited Jan. 26, 2014).
148. See, e.g., Michael Sallah & Daniel Chang, Feds Probe Bal Harbour Police Department over
Seized Millions, MIAMI HERALD, Oct. 28, 2012, http://www.miamiherald.com/2012/10/27/3070784/fedsprobe-bal-harbour-police.html; Radley Balko, Under Asset Forfeiture Law, Wisconsin Cops Confiscate
Families’ Bail Money, HUFFINGTON POST (May 21, 2012), http://www.huffingtonpost.com/2012/05/20/
asset-forfeiture-wisconsin-bail-confiscated_n_1522328.html.
149. See, e.g., David B. Smith, New Jersey’s Statute Held Unconstitutional: Prosecutors May Not
Benefit from Forfeiture Cases, 27 CHAMPION 12 (2003).
150. See Katherine Baicker & Mireille Jacobsen, Finders Keepers: Forfeiture Laws, Policing Incentives, and Local Budgets, 91 J. PUB. ECON. 2113, 2135 (2007).
151. See, e.g., Sarah Stillman, Taken, NEW YORKER, Aug. 12, 2013, http://www.newyorker.com/
reporting/2013/08/12/130812fa_fact_stillman?currentpage=all (recounting widespread resort to practice in remote areas of eastern Texas); Isaiah Thompson, The Cash Machine, PHIL. CITY PAPER, Nov.
28, 2012, http://citypaper.net/article.php?The-Cash-Machine-19189 (describing forfeiture practices in
Philadelphia, Pennsylvania).
152. See Catherine E. McCaw, Asset Forfeiture as a Form of Punishment: A Case for Integrating
Asset Forfeiture into Criminal Sentencing, 38 AM. J. CRIM. L. 181, 207 (2011).
153. Danny Robbins, Texas DA Reportedly Offered Leniency for Cash, HOUSTON CHRONICLE,
Oct. 25, 2011, http://www.chron.com/news/article/Texas-DA-reportedly-offered-leniency-for-cash-223
5636.php.
154. See, e.g., Eric Blumenson & Eva Nilsen, Policing for Profit: The Drug War’s Hidden Economic Agenda, 65 U. CHI. L. REV. 35 (1998); John L. Worrall, Addicted to the Drug War: The Role of
Civil Asset Forfeiture as a Budgeted Necessity in Contemporary Law Enforcement, 29 J. CRIM. JUST.
171 (2001).

WRIGHT.DOCX (DO NOT DELETE)

1196

9/5/2014 10:54 AM

UNIVERSITY OF ILLINOIS LAW REVIEW

[Vol. 2014

attention to the connection between them and various LFOs that create
similar incentives for government agents who enforce the criminal laws.155
6.

Expungement Fees

The opportunities to collect revenue even extend beyond the end of
the criminal sentence. Every state allows some offenders convicted of
certain crimes (typically minor ones) to expunge their conviction or arrest record after completing a designated community service program or
probation condition. After expungement, searches of public documents
by most users will produce no record of the arrest or conviction. But this
expungement comes with a financial string attached: many states charge
an “expungement fee” to complete the transaction. Maryland, for example, charges $30 to expunge an offender’s record.156
*****
As the preceding survey makes clear, LFOs assume a broad variety
of forms and emerge at just about every juncture of the criminal justice
process. Public interest groups and commentators have discussed the
negative consequences of LFOs for individuals, as well as concerns over
their racially disparate impact.157 As we noted at the outset, our goal
here is complementary to this work on individual impact, focusing on the
institutional effects of LFOs. We begin this effort by examining the reactions of courts to LFOs. That judicial doctrine provides the foundation
for a broader institutional solution to the challenges of LFOs.
IV. JUDICIAL LIMITS ON REVENUE GENERATION
Judges find themselves in the middle of this thicket of criminal justice LFOs. The judicial branch administers many of the collection systems and judicial budgets benefit from the funds generated. At the same
time, defendants regularly ask judges to exempt them from payments on
an individual basis or to invalidate or limit the entire payment system. In
response, state and lower federal courts, building on Supreme Court
precedent, have articulated principles that set some outer boundaries for
revenue generation.
In this Part, we review a complex and at times contradictory body of
case law. For every theme that appears in the opinions, there often is a
crosscurrent; the cases point to no single outcome. However, in the spirit

155. Restitution payments go directly from convicted and sentenced offenders to victims of the
crime, not to government agencies or cooperating private firms that support criminal justice functions.
For that reason, we do not include these payments in our survey.
156. See Expungements, MARYLAND DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL
SERVICES, http://www.dpscs.state.md.us/publicservs/expung.shtml (last visited Feb. 7, 2014); see also
TENN. CODE ANN. § 40-32-101(g)(10) (2014); Basics on Criminal Expungement, MINN. JUDICIAL
BRANCH, http://www.mncourts.gov/selfhelp/?page=328 (last visited Jan. 28, 2014).
157. See supra notes 4–6 and accompanying text.

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

9/5/2014 10:54 AM

MERCENARY CRIMINAL JUSTICE

1197

of Restatement reporters or drafters of the Model Penal Code,158 we highlight some basic principles that can guide the creation of a fair and coherent system of LFOs. We begin with a discussion of the handful of Supreme Court decisions on revenue generation in criminal justice. Discerning several themes in the cases, we then examine how the principles
have played out in decisions of state and lower federal courts over the
years.
A.

The Supreme Court Weighs In

In the 1920s, money flowing into the coffers of criminal justice actors caught the attention of the Supreme Court. The Court first addressed the matter in the context of judicial payments, in Tumey v.
Ohio.159 The general principles formulated in that context later shaped
the judicial response to monetary benefits flowing to other criminal justice actors.
In Tumey, the Court unanimously condemned a local government
arrangement involving a mayor, who also functioned as a judicial officer,
receiving a salary that was paid in part by fees imposed on convicted defendants (but not those who were acquitted).160 The Tumey Court condemned the practice on due process grounds, finding that the fee structure cast doubt on the impartiality of the judge-mayor, who had a personal pecuniary interest in each conviction ($12).161 Writing for the
Court, Chief Justice Taft stated that “the prospect of receipt or loss of
such an emolument in each case” cannot be regarded as a “minute, remote, trifling, or insignificant interest.”162 It is not fair to a defendant
“that the prospect of such a prospective loss [of money] by the Mayor
should weigh against his acquittal.”163 And while there were “doubtless”
mayors whose judgment would not be affected, the “possible temptation
to the average man”164 raised constitutional concern. Due process is violated, the Court held, when a judge “has a direct, personal, substantial,
pecuniary interest in reaching a conclusion against” a defendant.165
The Tumey Court, however, was troubled by more than the judge’s
personal financial interests. Tumey also addressed the incentives for
judges whose decisions could affect the money flowing to local governments.166 In an effort to encourage localities to prosecute liquor violators
more aggressively, Ohio’s Prohibition law gave local governments a
share of any fines imposed after conviction,167 and instructed judge158. See generally Herbert Wechsler, The Challenge of a Model Penal Code, 65 HARV. L. REV.
1097 (1953) (describing the proposal to create a model penal code).
159. 273 U.S. 510 (1927).
160. Id. at 523.
161. Id. at 535.
162. Id. at 532.
163. Id.
164. Id.
165. Id. at 523.
166. Id. at 533.
167. Id. The fines provided revenue sufficient to obviate the need to raise taxes. Id.

WRIGHT.DOCX (DO NOT DELETE)

1198

UNIVERSITY OF ILLINOIS LAW REVIEW

9/5/2014 10:54 AM

[Vol. 2014

mayors not only to determine guilt, but also to set appropriate fine
amounts.168 The problem with this arrangement, according to the Court,
was not the mingling of executive and judicial function.169 Instead, problem was the financial benefit to local government: the “official motive to
convict and to graduate the fine to help the financial needs of the village.”170
One year later, in Dugan v. Ohio,171 the Court qualified its views on
the corrosive effects of money. In Dugan, the judge-mayor presided over
criminal liquor law violations and received a salary that was fixed, regardless of the number of convictions. While case outcomes could have
affected the financial health of the city, the judge-mayor lacked “general
responsibility” for the city’s fiscal balance, as he shared executive powers
with others, including control over prosecutions.172 Because of those
shared powers, the Court held that the judge-mayor’s relationship to the
city’s general fund was too “remote” to trigger constitutional concern.173
The Court did not return to the issue for over forty years. In Ward
v. Village of Monroeville,174 the Court continued to treat the issue of judicial financial motives as a matter of degree, but this time the incentives
were strong enough to constitute a due process violation.175 In Ward, a
judge-mayor oversaw a court that generated fines, fees, and costs accounting for a substantial portion of local government funds.176 Two facts
distinguished Ward from Dugan. First, the judge-mayor in Ward held
greater executive duties alongside his judicial duties, making him more
responsible for the overall fiscal health of local government.177 Second,
the fees from convictions in Ward added up to a larger portion of the local government’s budget, increasing the incentive for the judge-mayor to
consider government finances when deciding cases.178 This arrangement
violated due process even though the Village judge-mayors had no personal financial stake in the cases before them.179
Five years later, in 1977, the Court addressed the propriety of
judges receiving compensation for issuing search warrants in Connally v.
Georgia.180 In a unanimous opinion,181 the Court applied the Tumey
“possible temptation” test to invalidate a state regime that paid JPs a fee

168. Id. The statutory amounts ranged from $100 to $2000. Id.
169. Id. at 534. The Court allowed that “the legislature of a State may, and often ought to, stimulate prosecutions for crime by offering to those who shall initiate and carry on such prosecutions rewards for thus acting in the interest of the State and the people.” Id. at 535.
170. Id.
171. 277 U.S. 61 (1928).
172. Id. at 63.
173. Id. at 65.
174. 409 U.S. 57 (1972).
175. Id. at 60.
176. Id. at 58.
177. Id. at 60.
178. Id. at 58.
179. Id. at 60.
180. 429 U.S. 245 (1977).
181. See id.

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

9/5/2014 10:54 AM

MERCENARY CRIMINAL JUSTICE

1199

($5) only when they issued a warrant.182 Despite the small size of any
single fee, what mattered was that the judge’s “financial welfare” was
enhanced by “positive action,” not by denials of warrants.183
In 1980, in Marshall v. Jerrico, Inc.,184 the Court turned its attention
to potential pecuniary bias within the executive branch, in particular the
collection of civil penalties by the U.S. Department of Labor for violations of the federal child labor laws. The Court found the Tumey neutrality principle to be inapplicable, reasoning that the Secretary of Labor
was engaged solely in a prosecutorial or enforcement function, not a judicial one.185 However, the Court also emphasized that principles formed
in the judicial context might be relevant, noting that a “scheme injecting
a personal interest, financial or otherwise, into the enforcement process
may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions.”186 Just
the same, the Marshall Court found it unnecessary to “say with precision
what limits there may be on a financial or personal interest of one who
performs a prosecutorial function,” finding in the case at bar that no
government official stood to benefit financially from vigorous enforcement of the Act.187 Moreover, the Court found no “realistic possibility”
of a broader institutional incentive to take enforcement action because
penalties collected under the Act represented less than one percent of
the budget for the agency charged with enforcement.188 The likelihood of
institutional self-dealing was further undercut because agency headquarters, not a regional administrator, decided how to allocate penalties,
meaning that local administrators had no assurance that any penalties
they assessed would be remitted to their offices.189 Finally, the penalties
allocated to regional offices were proportional to the Department’s expenses for investigating and prosecuting child labor violations. For this
combination of reasons, the possibility of bias was “too remote to violate
the constraints applicable to the financial or personal interest of officials
charged with prosecutorial or plaintiff-like functions.”190
B.

Supreme Court Themes

Viewed as a whole, the Court’s episodic opinions can be said to center on two basic concerns: neutrality and individualization.
182. Id. at 250; see also id. at 246 (“The fee so charged apparently goes into county funds and
from there to the issuing justice as compensation.”). At a pretrial hearing in the case, when litigated
below, the justice of the peace testified that he served mainly because he was “interested in a livelihood,” that he received no salary, and that his compensation was “directly dependent on how many
warrants” he issued. Id.
183. Id. at 250.
184. 446 U.S. 238 (1980).
185. Id. at 247–48.
186. Id. at 249–50.
187. Id. at 250.
188. Id. at 250.
189. Id. at 251.
190. Id. at 239.

WRIGHT.DOCX (DO NOT DELETE)

1200

9/5/2014 10:54 AM

UNIVERSITY OF ILLINOIS LAW REVIEW

[Vol. 2014

Concern over the neutrality of government actors is readily apparent in Tumey, Ward, and Connally. If a judge could benefit personally
from a LFO, that judge cannot make the “neutral decision” that due process requires. Furthermore, some LFOs that benefit a government agency can create structural incentives just as troubling as those that personally benefit judges. If the LFO directly and substantially supports a government unit—for example, by providing a significant portion of the
overall budget—it poses a threat to neutrality. Similarly, if the government actor who imposes the LFO also holds responsibility for the overall
fiscal health of the agency that receives its benefit, the arrangement creates a neutrality problem.
On the other hand, it is plain that these neutrality principles do not
categorically prevent the government from benefiting from an LFO, as
Dugan and Marshall attest. Over time, the Court’s failure to object categorically to financial benefit for government bodies has been manifest in
other contexts, for instance in its holding that convicted defendants can
be required to pay a “surcharge” tied to the posting of bail.191 The Court
has also long tolerated forfeiture actions,192 despite acknowledging their
possibly corrupting influence.193
Alongside the traditional due process concern for neutrality, a second theme has emerged. That theme is individualization: an LFO should
reflect the nature of the particular offender’s crime and the impact payment will have on the offender. The Supreme Court held in Bearden v.
Georgia, for example, that a defendant who is unable to pay the amount
that a court imposes as a probation term cannot be incarcerated for failure to pay.194 Only after finding that a particular defendant has the financial ability to pay, and willfully disobeys the judicial order to pay, is incarceration permitted.195 Similarly, an LFO must distinguish between
acquitted and convicted defendants. A government cannot allow a jury
to impose court costs on an acquitted defendant.196
C.

State and Lower Federal Courts

These Supreme Court themes surface in the opinions of state courts
and lower federal courts that have addressed LFO challenges. Faced
with new and varied LFOs, courts have given deeper meaning to the Su191. Schilb v. Kuebel, 404 U.S. 357, 370–72 (1971) (upholding Illinois statutory “bail surcharge” of
one percent, designed to offset costs of operating bail system).
192. See, e.g., United States v. Ursery, 518 U.S. 267 (1996).
193. See United States v. James Daniel Good Real Prop., 510 U.S. 43, 55–56 (1993) (stating that
procedural protections are especially important in forfeiture actions “where the Government has a
direct pecuniary interest in the outcome of the proceeding”). Cf. United States v. Funds Held ex rel.
Wetterer, 210 F.3d 96, 110 (2d Cir. 2000).
194. 461 U.S. 660, 672 (1983).
195. Id at 670; see also Williams v. Illinois, 399 U.S. 235, 243 (1970) (holding that a convicted
defendant cannot be incarcerated beyond the statutory maximum time due to inability to pay courtimposed fines and court costs). As discussed later, however, the Bearden standard today is very often
violated. See infra note 369 and accompanying text.
196. Giaccio v. Pennsylvania, 382 U.S. 399, 403 (1966).

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1201

preme Court’s core themes of neutrality and individualization. State
courts and lower federal courts also have developed an additional theme
of connectedness. They insist, on occasion, that state and local governments show some connection between the offender’s crime and the proposed governmental use for the revenue from the LFO. Such a connection ensures that the defendant’s conduct, rather than the budgetary
needs of government, drive the decisions about the type and amount of
LFOs that an offender must pay.
1.

Elaboration of the Neutrality Theme

The neutrality theme makes frequent appearances in state and
lower federal court decisions. Courts usually197 but not always198 condemn arrangements that provide direct financial benefits to judicial officers, or tempt them with personal wealth. Similarly, courts have invalidated systems when the job description for judges, as in Ward v. Village
of Monroeville, gives them concomitant executive responsibility over
budgets,199 even when the percentage in question is quite small.200 On the
other hand, courts tend to condone payments when the benefits to the
judiciary are deemed speculative or attenuated.201 Courts are especially
likely to view matters this way when funds are directed to the state general revenue fund.202 One Louisiana court termed “particularly trou197. See e.g., DePiero v. City of Macedonia, 180 F.3d 770, 772 (6th Cir. 1999) (“The Supreme
Court’s test does not call for proof of actual temptation. The mere possibility of temptation . . . is all
that is required.”); Rollo v. Wiggins, 5 So. 2d 458, 463 (Fla. 1942) (invalidating law allowing judge
payment of $1, but only in the event of conviction, stating that “[t]he question is not what the effect
may be on the conduct of any particular judge, but what the effect may be upon one who may easily
yield to the temptation to feather his pocket even with a few extra dollars”); In re Dender, 571 S.W.2d
491, 492 (Tenn. 1978) (holding that a non-salaried judge who received a $3 fee for the issuance of a
warrant does not satisfy the requirement for a “neutral and detached magistrate”); see also Brown v.
Vance, 637 F.2d 272, 274–76 (5th Cir. 1981) (finding that a Mississippi law violated due process when
local judges were paid a fee per case, and their compensation would increase depending on the number of cases filed in their court); Doss v. Long, 629 F. Supp. 127, 130 (N.D. Ga. 1985) (holding same
with respect to similar Georgia system).
198. In Allen v. State, for instance, the Georgia Supreme Court held that the possibility that a
judge might receive additional compensation by holding a committal hearing did not render the system
unconstitutional because “the disposition of the case ha[d] no relationship to the fee.” 242 S.E.2d 61,
63 (Ga. 1978); see also, e.g., Bailey v. City of Broadview Heights, 674 F.3d 499, 504 (6th Cir. 2012) (“A
mayor presiding over a Mayor’s court does not violate due process when he acts in a purely ministerial
capacity.”).
199. See, e.g., Rose v. Village of Peninsula, 875 F. Supp. 442, 452–53 (N.D. Ohio 1995).
200. See, e.g., DePiero, 160 F.3d at 777–82 (invalidating on due process grounds a system in which
a judge-mayor presided over cases and imposed fines and money generated amounted to less than ten
percent of government budget); Rose, 875 F. Supp. at 448, 452 (holding that a mayor who “wears two
hats” as the executive responsible for the village’s finances and the judge of contested traffic tickets
lacks impartiality when revenues were “substantial”); Augustus v. Roemer, 771 F. Supp. 1458, 1473
(E.D. La. 1991) (invalidating, under Ward, statute that vested judges with complete control over revenue generated by two percent bail bond fee).
201. See, e.g., Northern Mariana Islands v. Kaipat, 94 F.3d 574, 582 (9th Cir. 1996) (rejecting due
process challenge to law earmarking fines to support construction of new courthouse on the rationale
that judiciary’s interest was too speculative given its sole responsibility was to adjudicate cases and
fines went to general treasury, itself controlled by Governor).
202. See, e.g., Allen v. Cuomo, 100 F.3d 253, 260 (2d Cir. 1996) (holding that an inmate disciplinary surcharge did not violate due process because it was allocated to state’s general revenue fund).
For examples of state statutes specifying allocation to general revenue funds, see ALA. CODE § 12-19-

WRIGHT.DOCX (DO NOT DELETE)

1202

UNIVERSITY OF ILLINOIS LAW REVIEW

9/5/2014 10:54 AM

[Vol. 2014

bling” a state law that directed fines and forfeitures to the city treasury,
yet allowed the trial court and district attorney to channel the funds back
to the Criminal Court Fund.203
Nonetheless, courts often (too often, in our minds) take comfort in
a nominal separation between the enforcer of an LFO and the beneficiary of the revenue. Such formalism controls, for instance, when judges
allow private entities to benefit from LFOs when public agencies could
not. In Jadeja v. Redflex Traffic Systems, Inc.,204 a federal court rebuffed
a claim against private companies that provided red-light enforcement
cameras in various California towns. The plaintiff, who had received a
$346 fine for running a red light caught on the defendants’ camera,
claimed that the local governments’ contracts with the companies violated his freedom from “incentivized prosecution.”205 In particular, the
plaintiff alleged that the contracts contained a “cost neutral” provision
leading the companies to produce a sufficiently high volume of infractions to cover their operating costs.206 Refusing to recognize the plaintiff’s “alleged interest in freedom from incentivized prosecution,” the
court rejected any analogy to Tumey, finding that the private firm sending the plaintiff the ticket did not act as a “prosecutor for the state,” and
that there was no allegation of partiality on the part of any judge or prosecutor.207
When the recipient of money is a governmental actor other than a
judge, courts often take comfort in the judiciary’s role as a hedge against
government self-dealing. For example, in Brown v. Edwards,208 the Fifth
Circuit was not troubled by the fact that local police received a $10 payment for each arrest resulting in conviction.209 To the court, what mattered was that any arrest was supported by probable cause, not the “officer’s motives in making the arrest.”210 Similarly, the Mississippi Supreme Court has held that court clerks can be paid more for cases resulting in conviction than an acquittal, reasoning that clerks played no direct
role in the resolution of cases.211 Confidence in structural separation also
152 (2014); GA. CODE ANN. § 42-8-34(d)(1)-(2) (West 2014). In North Carolina, the state constitution
requires that “penalties” and “fines” shall “belong to and remain in the several counties, and shall be
faithfully appropriated and used for maintaining free public schools.” N.C. CONST. art IX, § 7 (West
2014).
203. State v. Rideau, 943 So. 2d 559, 576, 577 (La. Ct. App. 2006).
204. 764 F. Supp. 2d 1192 (N.D. Cal. 2011).
205. Id. at 1196.
206. Id. at 1194-95; see also id. at 1194 (quoting complaint: “if the fixed monthly fees charged by
Defendants were to exceed the total revenue brought in by the cameras, Defendants would refund,
credit, or otherwise repay the [government] for the difference”).
207. Id. at 1196. For a similar judicial treatment of the issue in the automated red light camera
context, involving a third-party, non-governmental contractor, see Agomo v. Fenty, 916 A.2d 181, 196–
97 (D.C. 2007).
208. 721 F.2d 1442 (5th Cir. 1984).
209. Id. at 1455–56.
210. Id. at 1452–53.
211. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 751 (Miss. 1996). Cf. Buritica v. United
States, 8 F. Supp. 2d 1188, 1994–95 (N.D. Cal. 1998); State ex rel. Cnty. of Cumberland v. One 1990
Ford Thunderbird, 852 A.2d 1114, 1124–25 (N.J. Super. Ct. App. Div. 2004), cert. denied, 899 A.2d 305
(N.J. 2006).

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1203

drove the outcome in Broussard v. Parish of Orleans,212 where the Fifth
Circuit approved a Louisiana law allowing sheriffs to collect a two percent fee on all bail amounts, reasoning that the sheriffs, unlike the officials in Ward and Tumey, did not exercise a judicial function.213
In short, case law on enforcer neutrality is framed expansively
and applied inconsistently. At times, judges intervene to insist on impartiality, especially when the LFO enforcer is also the recipient of revenue.
Yet, as we have seen, courts can often remain indifferent to indirect and
systemic conflicts of interest. Placing weight on the designation of an
enforcer as “judicial” or “non-judicial,” however, may not reflect practical realities on the ground. In the local courthouse culture of “working
groups,” the full-time professionals are aware of what their co-workers
need, even if they carry different titles and perform different phases of
the work. Such an environment creates powerful reasons for one set of
officials (say, judges) to make choices that protect the entire courthouse
staff.214
2.

Elaboration of the Individualization Theme

Another major decisional seam in the case law asks whether the
LFO is sufficiently tied to the individual circumstances of the case or the
offender. The precise doctrinal framing of the question differs, depending on whether the courts treat a given LFO as a fine, a cost, or a fee. A
fine can serve as a mandatory part of the punishment for a conviction,
and is usually tied to the nature of conviction.215 On the other hand, a
cost is meant to compensate government for expenses incurred during
investigation, prosecution, conviction, and punishment,216 and a fee is tied
to the expense of providing a specific program or service.217 Fines, in
212. 318 F.3d 644 (5th Cir. 2003).
213. Id. at 662.
214. See STEPHANOS BIBAS, THE MACHINERY OF CRIMINAL JUSTICE (2012) (discussing historical
trends that entrench interests of courthouse professionals); JAMES EISENSTEIN & HERBERT JACOB,
FELONY JUSTICE: AN ORGANIZATIONAL ANALYSIS OF CRIMINAL COURTS (1977) (developing theory
of criminal courts working groups, based on field observations).
215. People v. Jones, 861 N.E.2d 967, 975 (Ill. 2006) (“A ‘fine’ is a pecuniary punishment imposed
as part of a sentence on a person convicted of a criminal offense . . . . A ‘cost’ is a charge or fee taxed
by a court such as a filing fee, jury fee, courthouse fee, or reporter fee . . . . Unlike a fine, which is
punitive in nature, a cost does not punish a defendant in addition to the sentence he received, but
instead is a collateral consequence of the defendant’s conviction that is compensatory in nature . . . . A
‘fee’ is a charge for labor or services, especially professional services.”)
216. People v. Sulton, 916 N.E.2d 642, 646 (Ill. App. Ct. 2009). Therefore, credits to fines for time
spent incarcerated did not apply to a $200 DNA analysis LFO, as it was not a fine, but was a fee.
People v. Johnson, 959 N.E.2d 1150, 1155 (Ill. 2011); see also State v. VanWinkle, 186 P.3d 1258, 1260
(Mont. 2008) (stating that credit for pre-conviction incarceration against a fine is allowed but not allowed against a fee).
217. See, e.g., People v. Pacheco, 115 Cal. Rptr. 3d 220, 227–28 (Cal. Ct. App. 2010) (stating that
the purpose of a court security fee is to finance the criminal justice system by funding the courts and is
thus not rehabilitative or restitutionary in nature, and so cannot be made a condition of probation);
Roehl v. City of Naperville, 857 F. Supp. 2d 707, 713–15 (N.D. Ill. 2012) (discussing the strength of the
government’s interest in imposing a booking fee on all arrestees, since all arrestees are not similarly
situated); see also R. Barry Ruback & Mark H. Bergstrom, Economic Sanctions in Criminal Justice:
Purposes, Effects, and Implications, 33 CRIM. JUST. & BEHAV. 242, 253 (2006).

WRIGHT.DOCX (DO NOT DELETE)

1204

UNIVERSITY OF ILLINOIS LAW REVIEW

9/5/2014 10:54 AM

[Vol. 2014

short, are tied to the offender’s crime, while costs and fees are linked to
the government’s expenditures in prosecuting a crime.
The categorization of a LFO can make all the difference in how a
court evaluates the payment.218 Fine amounts, for instance, ostensibly
reflect the nature of the defendant’s wrongdoing rather than the budgetary needs of criminal justice agencies. Fines imposed as pecuniary punishment are subject to the constitutional safeguards of the Excessive
Fines Clause219 and the right to a jury trial.220 The Supreme Court invigorated the Excessive Fines Clause jurisprudence in United States v.
Bajakajian,221 holding for the first time that a civil forfeiture payment was
invalid because it amounted to an excessive fine.222 The relevant question
is whether the forfeiture is grossly disproportionate to the defendant’s
crime, without looking to the individual defendant’s ability to pay.223 A
few courts, however, also consider whether the forfeiture would destroy
the defendant’s livelihood.224
The Equal Protection Clause of the Fourteenth Amendment serves
as another doctrinal basis for testing the ability of a defendant to pay various LFOs. When it comes to fines and restitution, the Supreme Court
has determined that the Fourteenth Amendment requires an individualized assessment of an offender, the nature of his crime, and the amount
of the fine imposed.225 State and federal courts have declared that the
Equal Protection Clause requires an individualized determination of
whether a defendant can afford to pay a fee. The most active area of litigation involves fees for transcripts needed to prepare for a second trial
after an initial mistrial, or to file an appeal.226 Courts also require an individualized finding that each defendant has enough money to pay vari218. See, e.g., VanWinkle, 186 P.3d at 1260 (“[D]enominating a monetary obligation imposed on a
criminal defendant as a fee, rather than a fine, can ‘affect the substantial rights of the defendant.’”).
219. U.S. CONST. amend. VIII; see, e.g., Hudson v. United States, 522 U.S. 93, 103 (1997) (“The
Eighth Amendment protects against excessive civil fines, including forfeitures.”); Austin v. United
States, 509 U.S. 602, 621 (1993); State v. Izzolena, 609 N.W.2d 541 (Iowa 2000).
220. U.S. CONST. amend. VI; see So. Union Co. v. United States, 132 S. Ct. 2344 (2012) (extending the Apprendi rule to the imposition of criminal fines).
221. 524 U.S. 321 (1998).
222. See Nicholas M. McLean, Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause, 40 HASTINGS CONST. L.Q. 833, 834 (2013).
223. See, e.g., United States v. 817 N.E. 29th Drive, 175 F.3d 1304, 1311 (11th Cir. 1999)
(“[E]xcessiveness is determined in relation to the characteristics of the offense, not in relation to the
characteristics of the offender.”); United States v. Dubose, 146 F.3d 1141, 1146 (9th Cir. 1998) (“[A]n
Eighth Amendment gross disproportionality analysis does not require an inquiry into the hardship the
sanction may work on the offender.”); see also United States v. Smith, 656 F.3d 821, 828–29 (8th Cir.
2011); United States v. Castello, 611 F.3d 116, 120 (2d Cir. 2010).
224. See United States v. Levesque, 546 F.3d 78, 83–85 (1st Cir. 2008); United States v. Jose, 499
F.3d 105, 113 (1st Cir. 2007).
225. See Bearden v. Georgia, 461 U.S. 660, 670 (1983); Tate v. Short, 401 U.S. 395, 397–99 (1971);
see also, e.g., People v. Pacheco, 115 Cal. Rptr. 3d 220, 223–28 (Cal. Ct. App. 2010) (applying California statute which expressly states that the imposition of fines and fees are subject to the defendant’s
ability to pay); Del Valle v. State, 80 So. 3d 999, 1015 (Fla. 2011) (“[B]efore a probationer can be imprisoned for failure to pay a monetary obligation such as restitution, the trial court must inquire into a
probationer's ability to pay and make an explicit finding of willfulness based on the greater weight of
the evidence.”).
226. See, e.g., Trinkle v. Hand, 337 P.2d 665 (Kan. 1959); State v. Gill, 342 A.2d 256 (R.I. 1975);
State v. England, 363 S.E.2d 725 (W. Va. 1987).

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1205

ous fees for pre-trial and pre-sentence programs to avoid a jail or prison
term.227 Nevertheless, courts sometimes declare that it is not necessary
for a judge to ask whether a defendant is able to pay if there is no viable
alternative that meets the state’s penological interests.228 Furthermore,
appellate courts are normally willing to defer to the trial judge’s individual determination of an offender’s ability to pay.229
3.

A Third Concern: Connectedness

Faced with myriad forms of LFOs, imposed in many contexts, state
and lower federal courts have also insisted upon connectedness: they
look for an appropriate connection between an offender’s crime and the
government’s planned use for the revenue a LFO generates. If the government spends the money on a program that is not closely enough connected to the defendant’s conduct, some courts will block operation of
the LFO, either as a matter of constitutional doctrine or statutory interpretation.
The connectedness consideration is less at issue in the context of
fines than fees and costs. For instance, in People v. Graves, the Illinois
Supreme Court upheld a $15 LFO used to fund mental health and youth
diversion courts that the judiciary imposed on a defendant convicted of
possession of a stolen motor vehicle.230 The authorizing statute denominated the payment as a “fee,” but the Graves court characterized the
LFO as a “fine” because it was punitive in nature, imposed after conviction, and the proceeds were not used to compensate the state for expenses related to the defendant’s crime.231 As a result of this categorization,
the government was not required to demonstrate any specific connection
between the details of the crime and the purpose of the LFO.232 The
court put it this way: “the fact that the proceeds of the fine are earmarked for a specific purpose, unrelated to the offense upon which defendant was convicted, is irrelevant to their constitutionality . . . .”233
Other states adopt a similarly relaxed approach, granting broad latitude for the use of funds generated by fines. Florida, for example, au227. See, e.g., People v. Trask, 191 Cal. App. 4th 387 (Cal. Ct. App. 2010) (deferred entry of
judgment fee); Mueller v. State, 837 N.E.2d 198 (Ind. 2005) (pretrial diversion program fee); Moody v.
State, 716 So. 2d 562 (Miss. 1998) (fee to drop prosecution); Guy v. City of Okla. City, 760 P.2d 1312
(Okla. 1988) (fee for continuance of sentence by court); Gray v. State, 650 P.2d 880 (Okla. Crim. App.
1982) (donation to Community Relations Fund as precondition to consideration for plea bargain);
State v. Anderson, 677 P.2d 39 (Or. Ct. App. 1983) (pre-trial rehabilitation program fee); State ex rel.
Hawkins v. Luttrell, 424 S.W.2d 189 (Tenn. 1968) (jail fees while awaiting trial); State v. Shelton, 512
S.E.2d 568 (W. Va. 1998) (home confinement fee).
228. See, e.g., State v. Bulu, 560 A.2d 1250 (N.J. Super. Ct. App. Div. 1989) (entry and lab fees for
pre-trial intervention in drug cases); State v. Jimenez, 810 P.2d 801 (N.M. 1991) (restitution as part of
pretrial diversion program); People v. Brown, 481 N.Y.S.2d 771 (N.Y. App. Div. 1984) (controlled
substance surcharge).
229. See, e.g., United States v. Johnson, 347 F.3d 412 (2d Cir. 2003).
230. 919 N.E.2d 906, 911 (Ill. 2009).
231. Id. at 910–11.
232. Id. at 910.
233. Id.

WRIGHT.DOCX (DO NOT DELETE)

1206

UNIVERSITY OF ILLINOIS LAW REVIEW

9/5/2014 10:54 AM

[Vol. 2014

thorizes the use of proceeds from fines to fund legal aid programs, public
law libraries, and teen courts.234 In Arizona, a ten percent surcharge collected on all fines is directed to a “clean elections” fund in an effort to
diminish the influence of “special-interest money” in political campaigns.235 Illinois requires payment of a five dollar fine by defendants
convicted of drug possession, payable to the state “Spinal Cord Injury
Paralysis Cure Research Fund.”236 In Virginia, fine proceeds are directed
to the state “Literary Fund.”237
While fines typically survive constitutional challenges based on their
weak connection to the purposes that the state hopes to pursue with the
revenue, statutory challenges offer courts more of a basis to intervene.
Fines are a creature of statute. Courts that impose fines without explicit
statutory authority, no matter how commendable the beneficiary, are
subject to reversal.238
Courts treat the imposition of costs and fees differently than fines.239
As noted by the First Circuit, the “American legal tradition does not,
absent specific statutory authority, require defendants to reimburse the
government for the costs of their criminal investigations or their criminal prosecutions.”240 When reviewing challenged costs and fees, courts
usually require some logical connection between a particular prosecution
and its cost to the government.241
When it is clear that costs or fees being charged are reasonably related to the investigation or prosecution of a certain defendant, courts
will uphold them as a valid reimbursement of the government’s expenses.
In State v. Claborn, the Oklahoma Court of Criminal Appeals validated
statutes that mandated assessments for a law enforcement training program as well as a victims’ compensation fund.242 In doing so, the court
reasoned that the “various assessments are reasonably related to the
costs of administering the criminal justice system . . . .”243
Even under this relaxed standard, courts have invalidated various
costs and fees when the connection between the assessment and its par234. FLA. STAT. ANN. § 939.185(1)(a) (West 2014).
235. ARIZ. REV. STAT. ANN. §§ 16-940(A), 16-954(A) (2014).
236. 730 ILL. COMP. STAT. ANN. 5/5-9-1.1(c) (2014); see, e.g., People v. Jones, 861 N.E.2d 967, 98789 (Ill. 2006) (construing LFO as a fine and upholding its imposition).
237. VA. CONST. art. VIII, § 8; VA. CODE ANN. § 19.2-353 (West 2014).
238. See, e.g., State v. Harwell, 515 N.W.2d 105, 110 (Minn. Ct. App. 1994) (invalidating trial court
decision to impose $14 monthly fine payable to a “Missing Children’s Fund”); State v. Cooper, 760
N.E.2d 34, 38 (Ohio Ct. App. 2001) (invalidating trial court decision to direct fines to American Cancer Society because the statute required payment to the county treasury); Camacho v. Samaniego, 831
S.W.2d 804, 815 (Tex. 1992) (finding that bond approval fees imposed on bondsmen are not authorized by statute). Cf. MINN. STAT. ANN. § 574.34(1) (West 2014) (“Fines and forfeitures not specially
granted or appropriated by law shall be paid into the treasury of the county where they are incurred . . . .”).
239. See United States v. Bevilacqua, 447 F.3d 124, 127 (1st Cir. 2006).
240. Id.
241. See, e.g., Broyles v. State, 688 S.W.2d 290, 291–92 (Ark. 1985); State v. Young, 238 So. 2d
589, 590 (Fla. 1970); State v. Ballard, 868 P.2d 738, 741 (Okla. Crim. App. 1994); State v. Claborn, 870
P.2d 169, 174 (Okla. Crim. App. 1994); Carter v. City of Norfolk, 147 S.E.2d 139, 144 (Va. 1966).
242. Claborn, 870 P.2d at 174.
243. Id. at 171.

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1207

ticular use is too attenuated. In Ex Parte Carson, the Texas Court of
Criminal Appeals disapproved of the use of court costs to fund the creation and maintenance of a law library.244 Likewise, at least for some
courts, charging a defendant for a pro rata share of system “overhead”—
that is, costs imposed to maintain basic institutions of the justice system—does not pass muster.245 Courts, for instance, have disallowed costs
tied to the number of hours prosecutors worked on a defendant’s case.246
The Oregon Court of Appeals recently rebuffed a government effort to
recover overtime payments associated with guarding a defendant in a
hospital, saying that the public “either must make an expenditure in order to maintain and operate a government agency, or not.”247
On the whole, challengers lose more often than they win because
courts defer to legislative judgments in enacting statutes that require the
payment of specific costs248 or fees.249 For example, courts often find costs
and fees associated with DNA collection and analysis to be appropriate.250 Costs may also be assessed to cover prosecution expert witness
expenditures.251 Courts will usually reject challenges to the payment of
incarceration-related costs so long as they are based on valid statutory
authority.252 Yet when an assessment is imposed on an individual who
does not fall within the express terms of an authorizing statute, appellate
courts can be quick to intervene.253 Courts have also overturned assess-

244. 159 S.W.2d 126, 127 (Tex. Crim. App. 1942). The court reasoned that
[i]f something so remote as a law library may be properly charged to the litigant on the theory
that it better prepares the courts and the attorneys for the performance of their duties . . . [then]
we might as logically tax an item of cost for the education of such attorneys and judges and even
the endowments of the schools which they attend.
Id.
245. See, e.g., State v. Ayala, 623 P.2d 584, 586 (N.M. Ct. App. 1981) (stating that jury and bailiff
costs cannot be imposed); Arnold v. State, 306 P.2d 368, 376 (Wyo. 1957) (stating that expenses paid
for bailiff services are not a part of the costs of prosecution).
246. See, e.g., Commonwealth v. Garzone, 34 A.3d 67, 80 (Pa. 2012).
247. State v. Kuehner, 288 P.3d 578, 581 (Or. Ct. App. 2012).
248. See, e.g., State v. Myers, 602 S.E.2d 796, 800-03 (W. Va. 2004) (giving effect to legislative
intent to allow assessments for jury costs).
249. See, e.g., State v. VanWinkle, 186 P.3d 1258, 1262 (Mont. 2008) (holding that trial court was
not statutorily authorized to impose $85 fee used for a community service program).
250. See supra note 212 and accompanying text.
251. See, e.g., United States v. May, 67 F.3d 706, 707–08 (8th Cir. 1995); People v. Brown, 755
N.W.2d 664, 682 (Mich. Ct. App. 2008); Commonwealth v. Hernandez, 917 A.2d 332, 336 (Pa. Super.
Ct. 2007). However, some courts have concluded this does not include pre-indictment investigation
expenses. See, e.g., United States v. Hiland, 909 F.2d 1114, 1142 (8th Cir. 1990).
252. See, e.g., Slade v. Hampton Roads Reg'l Jail, 407 F.3d 243, 246 (4th Cir. 2005) (upholding a
$1 per day housing fee for pre-trial detainee); Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410,
417–24 (3d Cir. 2000) (discussing a $10 per day inmate housing fee); Christensen v. Clarke, 147 F.3d
655, 657 (8th Cir. 1998) (upholding the deduction of room and board from a prisoner’s work release
salary); Goad v. Fla. Dep’t of Corr., 845 So. 2d 880, 885-86 (Fla. 2003) (upholding a $50 per day inmate
housing fee). But see, e.g., Bouza v. Sheriff of Bristol Cnty., 918 N.E.2d 823, 831–34 (Mass. 2010) (stating that the sheriff lacks authority to impose fees for haircuts, GED tests, and medical care).
253. See, e.g., People v. Molidor, 970 N.E.2d 58, 62 (Ill. App. Ct. 2012) (rejecting assessment of
DNA analysis fee because the statute authorizes payment of the fee “only where that defendant is not
currently registered in the DNA database[]”); State v. Moreno, 294 P.3d 812, 823 (Wash. Ct. App.
2013) (rejecting assessment of a domestic violence fee where assault was not “committed by one family
or household member against another” (citation omitted)).

WRIGHT.DOCX (DO NOT DELETE)

1208

UNIVERSITY OF ILLINOIS LAW REVIEW

9/5/2014 10:54 AM

[Vol. 2014

ments after construing statutes as disallowing certain costs or fees.254
Moreover, costs are typically not available in the event of an acquittal or
dismissal.255
Courts sometimes examine LFOs under the specific provisions of a
state constitution, especially regarding separation of powers.256 In State v.
Lanclos, for instance, the Louisiana Supreme Court invalidated a statute
that mandated that all traffic offenders pay a $5 LFO used to supplement
police salaries and equipment expenses.257 The court found that the assessment violated separation of powers because it amounted to a “‘tax’
funded through the judiciary.”258 In an earlier decision, the same court
invalidated a $3 filing fee that funded domestic violence programs, finding that it violated the Louisiana Constitution’s access to courts provision.259 The Florida Supreme Court ruled that a five percent bond surcharge allocated to the Crimes Compensation Trust Fund infringed the
state’s constitutional right to reasonable bail because it was unrelated to
bail’s purpose to assure the accused’s attendance at trial and did not benefit the operation of the bonding system.260
LFOs also surface with the appointment of defense counsel to indigents. The state is allowed to recoup costs associated with providing an
indigent with defense counsel,261 on the rationale that doing so does not
chill exercise of the right to counsel.262 In addition, some jurisdictions
require that individuals qualifying as indigent pay an up-front “application” fee or “co-payment” for appointed counsel.263 In exceptional cases,
254. See, e.g., United States v. Bevilacqua, 447 F.3d 124, 129 (1st Cir. 2006) (finding that costs of
specially appointed prosecutors cannot be charged because they are agents of the United States Attorney and not experts of the court); United States v. Banks-Giombetti, 245 F.3d 949, 953 (7th Cir.
2001) (vacating assessment of jury costs against the defendant where there was no statute or local
practice and the defendant was not put on notice); Gooch v. State, 685 N.E.2d 152, 155 (Ind. Ct. App.
1997) (reversing jury costs in absence of statutory authority).
255. See, e.g., United States v. Palmer, 809 F.2d 1504, 1508–09 (11th Cir. 1987); United States v.
Troiani, 595 F. Supp. 186, 187 (N.D. Ill. 1984); United States v. Miller, 223 F. 183, 184–85 (S.D. Ga.
1915); People v. Palomo, 272 P.3d 1106, 1112 (Colo. App. 2011); Leyritz v. State, 93 So. 3d 1156, 1158
(Fla. Dist. Ct. App. 2012); State v. Faulkner, 292 P.2d 1045, 1051 (Wyo. 1956).
256. See, e.g., State v. Medeiros, 973 P.2d 736, 742 (Haw. 1999) (invoking state separation of powers and taxing clauses provisions to invalidate costs not used to defray actual expenses).
257. 980 So. 2d 643, 654 (La. 2008).
258. Id. at 654 (construing LA. CONST. art. II, § 1). The court also reasoned that “[a]lthough . . .
there is some logical connection between a police department and the criminal justice system, . . .
police salaries and uniform equipment and maintenance is too far attenuated from the ‘administration
of justice,’ to be considered a legitimate court cost.” Id.
259. Safety Net for Abused Persons v. Segura, 692 So. 2d 1038, 1042 (La. 1997) (construing LA.
CONST. art. I, § 22). The court stated that the court system “should not be made tax collectors . . ., nor
should the threshold to our justice system be used as a toll booth to collect money for random programs created by the legislature.” Id.
260. LaRue v. State, 397 So. 2d 1136, 1138 (Fla. 1981) (construing FLA. CONST. art. I, § 14).
261. See, e.g., OR. REV. STAT. ANN. § 161.665(2) (West 2014).
262. See Fuller v. Oregon, 417 U.S. 40, 53 (1974) (“The fact that an indigent who accepts stateappointed legal representation knows that he might someday be required to repay the costs of these
services in no way affects his eligibility to obtain counsel.”).
263. See, e.g., KAN. STAT. ANN. § 22-4529 (West 2014); State v. Casady, 210 P.3d 113, 120 (Kan.
2009) (upholding statute requiring application fee for appointed counsel); State v. Albert, 899 P.2d
103, 109, 112–13 (Alaska 1995); Opinion of Justices, 431 A.2d 144, 147 (N.H. 1981); Wicks v.
Charlottesville, 208 S.E.2d 752, 757 (Va. 1974); see generally Wright & Logan, Application Fees, supra
note 94 (discussing application fees).

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

9/5/2014 10:54 AM

MERCENARY CRIMINAL JUSTICE

1209

however, courts have limited or wholly invalidated the use of such fees.
These courts conclude that the fees unduly restrict the constitutional
right to counsel of indigent defendants.264
D.

Summary

As the preceding discussion suggests, state and lower federal courts,
building on Supreme Court precedent, have issued a hodgepodge of rulings on LFOs. On the whole, the courts defer to the legislature and enforce fines, fees, and costs that the legislature has clearly authorized.
Such deference is especially evident with fines. With costs and fees, on
the other hand, one sees more critical scrutiny. Courts from time to time
rely on statutory interpretation to declare that LFOs stray beyond their
authorized terms. Less commonly, they use federal or state constitutional doctrine, including separation of powers, to find fault with
LFOs.
Ultimately, however, case law is only modestly helpful in lending
principled order to the profusion of LFOs. As the Arizona Court of Appeals recently observed when assessing whether a “prosecution fee” imposed by a county was punitive in nature and essentially a fine,265 LFO
categories and the analytic tests employed are not “black and white . . .
but, rather, include many shades of gray.”266 Much as courts have unsuccessfully grappled in the constitutional arena with determining whether a
sanction is punitive in nature, and hence subject to double jeopardy, ex
post facto, or other limits,267 they have failed to draw functionally meaningful distinctions among LFOs.268
Caselaw also fails to account for the cumulative effect of LFOs.
Challenges typically evaluate LFOs in isolation. As one California judge
put it, “[h]owever laudable these charges may be, the patchwork nature
of the ever-growing financial penalties in criminal actions has created a
system that begins to match the complexity of the federal income tax.”269

264. See, e.g., Burns v. Ohio, 360 U.S. 252, 258 (1959); Griffin v. Illinois, 351 U.S. 12, 16–19 (1956);
State v. Dudley, 766 N.W.2d 606, 617 (Iowa 2009); State v. Tennin, 674 N.W.2d 403, 410–11 (Minn.
2004); State v. Webb, 591 S.E.2d 505, 509–10 (N.C. 2004).
265. See State v. Payne, 225 P.3d 1131 (Ariz. Ct. App. 2009).
266. Id. at 1141. Emblematic of this ambiguity even restitution can have a surcharge, in New
York State, with an additional five percent of the restitution amount going to the collecting agent.
NEW YORK BAR RE-ENTRY REPORT, supra note 122, at 171. California allows a “restitution fine” to
be assessed, which is tied to the seriousness of the offense. CAL. PENAL CODE § 1202.4 (West 2014).
267. See generally Wayne A. Logan, The Ex Post Facto Clause and the Jurisprudence of Punishment, 35 AM. CRIM. L. REV. 1261 (1998) (discussing the Supreme Court’s Ex Post Facto Clause case
law).
268. A basis for optimism, and possible light for the path toward much-needed more critical constitutional regulation that could be undertaken, is found in the evolving judicial treatment of restitution, as possibly qualifying as punishment for constitutional purposes under certain circumstances. See
William M. Acker, Jr., The Mandatory Victims Restitution Act Is Unconstitutional. Will the Courts Say
So After Southern Union v. United States?, 64 ALA. L. REV. 803, 822–29 (2013).
269. People v. Castellanos, 98 Cal. Rptr. 3d 1, 8 (Cal. Ct. App. 2009) (Kriegler, J., concurring).

WRIGHT.DOCX (DO NOT DELETE)

1210

9/5/2014 10:54 AM

UNIVERSITY OF ILLINOIS LAW REVIEW

[Vol. 2014

V. GUIDING PRINCIPLES AND AN INSTITUTIONAL RESPONSE
Judicial doctrine starts with the recognition that benefits flow to the
government from LFOs.270 Such benefits present the risk of self-dealing,
whether in structuring the payment system or in setting the payments in a
particular case. As the Supreme Court put it in Harmelin v. Michigan, “it
makes sense to scrutinize governmental action more closely when the
State stands to benefit.”271
Given the systemic risk that criminal justice LFOs present, general
principles to guide their creation and operation could shield government
actors from the suspicion that they are feathering their own nests.272 As
Part IV made clear, however, the available judicial doctrine is not up to
the job. Courts have sketched only broad analytic parameters; they talk
about neutrality, individualization, and connectedness but apply those
values inconsistently. Judicial regulation has not imposed any meaningful order on LFOs or set the sort of credible limits that would be necessary to legitimize this mushrooming practice. This Part shores up the
rickety judicial foundation with more complete guiding principles, dividing the task into two components: risk assessment and risk reduction.
For each of these two components, we imagine how legislatures, commissions, and other institutions can supplement the incomplete work of the
judiciary.
A.

Risk Assessment

LFOs operate in a charged environment. Legislators can improve
their re-election odds when they “stick it” to criminal offenders and give
taxpayers more criminal enforcement for less public expense, while judicial and executive actors (including their agents in the private sector) can
restore the finances of their programs through the collection of LFOs.
Two rules of thumb, derived from the major themes in the case law surveyed earlier, can help policy makers understand when the risk of distortion through self-dealing is highest.

270. See, e.g., People v. Guerrero, 904 N.E.2d 823, 825 (N.Y. 2009) (quoting legislative memorandum and noting that mandatory surcharges arose out of “a massive revenue-raising bill meant to ‘avert
the loss of an estimated $100 million in State tax revenues’”).
271. 501 U.S. 957, 979 n.9 (1991). For an interesting examination of this recognition in the context of government prosecutions resulting in large financial recoveries, see Margaret H. Lemos & Max
Minzner, For-Profit Public Enforcement, 127 HARV. L. REV. 853 (2014). Like the LFO context, incentives in large recovery actions are strongest when the entity or agency is permitted to retain some or all
of the enforcement proceeds. Id. at 854. Of course, big dollar public enforcement actions, which do
not always attend criminal cases, and which often target monied and high profile individuals or entities, differ in important respects from LFO collections. The latter are staples of the criminal justice
system today and are experienced by legions of mostly poor and functionally anonymous individuals.
One outgrowth of the difference is that big dollar enforcement actions can be motivated by reputational incentives, for individuals and agencies, at play even when money does not go to the enforcer.
See id. at 875–86. With LFOs, such a reputational incentive is typically absent.
272. Cf. TOM R. TYLER, WHY PEOPLE OBEY THE LAW 170 (2006).

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

1.

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1211

How Early Does the Payment Appear in the Process?

The first risk factor is the extent to which actors impose and collect
payments early in the process. This risk factor is grounded in the common law insight discussed above, that an LFO deserves more deference
when it is individualized for the offender and offense. That individualization takes place most reliably when there is time to gather facts about
each case, and time to involve more system actors in the evaluation. A
criminal fine, which takes place after an adjudication on the merits and
input from prosecution, defense, the judiciary, and theoretically the
community, offers the best hope to avoid the systemic risk of inaccurate
and non-individualized LFOs.
This risk factor points to a guiding principle: the earlier the payment, the more problematic it is. For instance, pre-adjudication payments of “diversion supervision” fees to prosecutors should prompt serious concern. These LFOs happen without the institutional checks and
balances—that is, input from other players—that can make a governmental decision legitimate, reliable, and tailored to the merits of an individual case. There is no judge to convince about the propriety of a diversion fee, and often no defense attorney to counterbalance prosecutorial
prerogative.
Consider, for example, the practices of prosecutors in Tallahassee,
Florida, where the office collected fees directly from defendants as a
condition of entering plea bargains, and then kept the funds for itself.273
The strategy allowed the office to circumvent a state law requiring the
court clerk to collect and distribute payments in accord with legislative
priorities.274
The absence of checks and balances increases the risk that an LFO
will be based on inaccurate facts, self-dealing, and even bias. In this setting, defendants are vulnerable to coercion and unequal justice, with
richer suspects better able to “buy” a favorable outcome and avoid the
adverse personal consequences of a criminal charge.275 Booking fees,
based solely on a probable cause finding by police, and not a finding of
276
guilt, are similarly problematic. When the government is permitted to
generate revenue without investing much in the way of its own resources,
273. DILLER, HIDDEN COSTS, supra note 1, at 10.
274. Id. at 10–11 (discussing law requiring that clerk assign the first $50 of any fees or costs paid
by an indigent person as payment of the public defender application fee, which funds indigent defense). Moreover, when the office was unable to collect the monies at the outset, prosecutors would
request that the court order the fee be paid within a specified time “regardless of the defendant’s
ability to pay.” Id. at 10.
275. Equal justice concern has led some courts to reject such practices. See, e.g., Moody v. State,
716 So. 2d 562, 565 (Miss. 1998) (“[O]ne who is unable to pay will always be in a position of facing a
felony conviction and jail time, while those with adequate resources will not.”).
276. To date, due process challenges against local laws permitting the practice have been rebuffed
by appellate courts on standing grounds. See Markadonatos v. Village of Woodridge, 739 F.3d 984,
991 (7th Cir. 2014); Sickles v. Campbell Cty., Ky., 501 F.3d 726, 732 (6th Cir. 2007). At least one trial
court, however, has granted due process relief in a challenge against a booking fee assessed prior to
conviction. See Allen v. Lei, 213 F. Supp. 2d 819, 834 (S.D. Ohio 2002).

WRIGHT.DOCX (DO NOT DELETE)

1212

UNIVERSITY OF ILLINOIS LAW REVIEW

9/5/2014 10:54 AM

[Vol. 2014

net-widening also becomes a very real concern, as every potential arrestee becomes a potential source of revenue.
Just as LFOs become more suspect when they attach early with less
input from other checking institutions, they should prompt concern when
they apply automatically without regard to an individual’s ability to pay.
Judicial doctrine recognizes this problem; judges do intervene in extreme
cases. They declare, both on constitutional and statutory grounds, that
the LFO schemes must include some safety valve for indigent defendants.277 Other actors, however, can give life to this expectation, by monitoring the number of waivers and reviewing the work of enforcers when
indigency waivers become too scarce in a system dominated by poor defendants. When actors complain that LFO collections are not bringing in
enough funds, it is a warning sign that they are not taking seriously the
need for individual assessment.
2.

How Prominent is Revenue as a Purpose?

Another risk factor turns on the popular phrase, “follow the
money.”278 If the money that a LFO yields was an important reason for
authorizing it, the risk increases that revenue considerations will distort
that LFO in operation. For instance, if a legislature creates or modifies a
fee structure at the same time that it reduces the operating budgets for
prosecutors or other criminal justice actors, that founding purpose is
likely to dominate later applications. This point builds on the neutrality
requirement reflected in case law.
One red flag about the importance of revenue in the design of a
LFO arises when the same actor or government both imposes the
amount and benefits from the revenues. Tumey recognized this principle
in its most overt form, but the risk also appears in less obvious contexts.279 In New Orleans, for instance, LFOs go to the Judicial Expense
Fund, which is used to pay for courtroom improvements such as carpeting and audio systems.280 Anecdotal evidence suggests that the city’s
judges pressured colleagues to collect LFOs and that judges who secured
less than their “fair share” were allocated less in operating funds.281
Along these same lines, it is often the case that court clerks—typically a

277. See, e.g., Moody, 716 So. 2d at 565 (holding that the system of extracting a $500 fee to avoid
prosecution was “both procedurally and constitutionally flawed”).
278. While public collectors might act strictly to further their reputations in some contexts, such
as big-dollar civil and criminal enforcement actions, in the high-volume, low-dollar world of LFOs it is
all about the money. See Lemos & Minzer, supra note 271, at 875–86.
279. This is the view of ABA and various advocacy groups. See, e.g., BANNON ET AL., CRIMINAL
JUSTICE DEBT, supra note 3, at 30; Frances Kahn Zemans, Court Funding 7 (2003), available at http://
www.americanbar.org/content/dam/aba/administrative/judicial_independence/courtfunding.authcheck.
dam.pdf. But courts have tended to require direct and unqualified pecuniary interest. See supra notes
197–214 and accompanying text.
280. ACLU, IN FOR A PENNY, supra note 4, at 25.
281. Id. at 9.

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1213

potent political force in local government—stand to benefit from court
cost payments.282
The behavior pattern is predictable from a public choice perspective.283 Oklahoma’s “DA Supervision” program shows the power of economic incentives playing out over time. In 2007, the legislature increased
the length of deferred prosecution agreements from two to three years.284
Coupled with the then-current $20 per month fee for supervision, this
amendment increased the “earning potential” by $240 on each agreement.285 Then, in 2009, the legislature doubled the “potential” on each
agreement by increasing the monthly fee from $20 to $40.286 As a result,
each office could use a deferred prosecution agreement to net an increase of $960 more per contract than what it could have before the
amendment.287
The distorted incentives are so predictable and pervasive that we
encourage system actors to apply this rule of thumb: all LFO revenue
should go into the general treasury. Earmarked payments are suspect.
While criminal justice programs might receive through the appropriations process an amount consistent with LFO receipts, any such decision
should be revisited each year and should not rest in the hands of the LFO
collectors.
Risk also spikes when private vendors get involved. Governments,
for instance, sometimes contract with private parties to operate halfway
houses and other community-based treatment programs for offenders.288
When those contractors are politically connected, or when the delegations of the state’s power to punish happen without adequate contractual
standards and monitoring, it is worrisome.289 Contractors have also
282. See, e.g., FLA. STAT. § 938.06(2) (2014) (stating that the clerk shall retain $3 out of $20 assessed on all convictions and allocated to “crime stoppers programs”); FLA. STAT. § 938.19(4)(b)
(2014) (stating that the clerk shall withhold five percent of all assessments imposed for “teen court” as
“fee income” for the office).
283. As the American Probation and Parole Association notes, “[o]f all factors affecting collections, the degree of access to fee payments is the most significant. Organizations which are able to
keep part or all of the supervision fees collected, collect more.” AM. PROBATION AND PAROLE ASS’N,
Issue Paper: Supervision Fees (Jan. 2001), available at http://www.appa-net.org/eweb/Dynamicpage.
aspx?site=APPA_2&webcode=IB_IssuePaper&wps_key=bbe810ce-4464-4519-a1d7-4993574a8d61.
284. OKLA. STAT. tit. 22 § 305.1 (2014).
285. Id. § 991d(B).
286. Id. The program generated $15.3 million for District Attorney’s offices in 2012. Alison
Harris, Inside Oklahoma’s Probation System, FOX TEXOMA (Feb. 21, 2013, 10:33 PM), http://www.
kxii.com/fox/home/headlines/Inside-Oklahomas-Probation-System-192418691.html.
287. See OKLA. STAT. tit. 22 § 991d(A) (2014).
288. See, e.g., Sam Dolnick, A Volatile Mix Fuels a Murder, N.Y. TIMES, June 18 2012, http://
www.nytimes.com/2012/06/19/nyregion/at-a-new-jersey-halfway-house-a-volatile-mix-fuels-a-murder.
html?_r=0 (noting security concern over privately run New Jersey halfway house, used as “dumping
ground,” housing violent and non-violent offenders, with close political ties to governor and county
executive); Sam Dolnick, As Escapees Stream Out, A Penal Business Thrives, N.Y. TIMES, (June
16, 2012), http://www.nytimes.com/2012/06/17/nyregion/in-new-jersey-halfway-houses-escapees-stream
-out-as-a-penal-business-thrives.html?pagewanted=all.
289. See, e.g., Sam Dolnick, Halfway Houses Prove Lucrative to Those at Top, N.Y. TIMES, Dec.
29, 2012, http://www.nytimes.com/2012/12/30/nyregion/operator-of-new-jersey-halfway-houses-paidmillions-to-founder.html?gwh=DFFC8BAF0BD69476F0FC0E96D505FEF6&gwt=pay
[hereinafter
Dolnick, Prove Lucrative] (discussing lax oversight of politically influential, ostensibly non-profit
entities operating halfway houses in New Jersey, which secured over half a billion dollars from the

WRIGHT.DOCX (DO NOT DELETE)

1214

UNIVERSITY OF ILLINOIS LAW REVIEW

9/5/2014 10:54 AM

[Vol. 2014

prompted concern in the context of probation services.290 In Georgia,
three dozen for-profit companies are authorized to operate, tacking on
“enrollment” and other surcharges that can together exceed the fines and
costs imposed on defendants.291 When more time on probation brings
more revenue for the contractors, an obvious moral hazard threat arises,
one borne out in the practice of one provider requesting that defendants
serve their sentences consecutively, not concurrently.292 The incentive
system is reinforced when firms tie their evaluation of individual officer
performance to the amount of money secured from probationers,293 not
to the officer’s provision of service or the behavior of probationers.294
Private enterprise has also become a force in the debt collection
business, with over three hundred prosecutors’ offices now allowing private companies to use their letterhead to contact debtors, demanding
payment on bounced checks.295 The companies collect the debt, which
goes to the creditor, along with LFOs (including payments for a “financial accountability” class), some of which is funneled back to the prosecutors’ offices.296
Just as there are some indicators of high risk, there are also some
contexts that suggest lower risk. In some settings, the entity that authorizes an LFO and its amount has nothing to do with the decision to assess
LFOs in individual cases. It is often the case, for instance, that statutory
terms will predetermine the amount of costs that courts can assess.297
state over the past decade, and two entities in particular that now control eighty-five percent of the
business); Susan Taylor Martin, Felons, Drug Dealers Run Halfway Houses for Addicts, TAMPA BAY
TIMES, Nov. 18, 2012, http://www.tampabay.com/news/publicsafety/felons-drug-dealers-run-halfwayhouses-for-addicts/1261881 (detailing activities of “parasitic” private firms run amok in halfway house
industry, with no regulatory oversight). On the issue of lax regulatory oversight in the privatization
context more generally, see Jon D. Michaels, Privatization’s Pretensions, 77 U. CHI. L. REV. 717
(2010).
290. See, e.g., S. CTR. FOR HUMAN RIGHTS, PROFITING FROM THE POOR: A REPORT ON PREDATORY PROBATION COMPANIES IN GEORGIA 2 (2008), http://www.inthepublicinterest.org/sites/
default/files/Profiting%20from%20the%20Poor.pdf; Bronner, supra note 129 (discussing “moneystarved towns across the country and the for-profit businesses that administer the system”). The use
of global positioning systems for monitoring offenders, a “techno-corrections” strategy that governments often favor as a cheaper alternative to brick-and-mortar incapacitation, is also a major moneymaker for private companies. See Ian Herbert, Where We Are with Location Tracking: A Look at the
Current Technology and the Implications on Fourth Amendment Jurisprudence, 16 BERKELEY J. CRIM.
L. 442 (2011).
291. Bronner, supra note 129.
292. ACLU, IN FOR A PENNY, supra note 4, at 60.
293. Id. at 61.
294. Id. at 63. Adding to concern over the role of private companies is that fact that they are
often exempt from the disclosure requirements imposed on public entities. The lack of routine reporting makes it difficult to determine whether outsourcing, such as for probation supervision, actually
yields cost savings. Id. See also Sara Dolisca Bellacicco, Note, Safe Haven No Longer: The Role of
Georgia Courts and Private Probation Companies in Sustaining a De Facto Debtors’ Prison System, 48
GA. L. REV. 227, 242–43 (2013) (discussing lack of public disclosure).
295. Jessica Silver-Greenberg, In Prosecutors, Debt Collectors Find a Partner, N.Y. TIMES (Sept.
15, 2012), http://www.nytimes.com/2012/09/16/business/in-prosecutors-debt-collectors-find-a-partner.ht
ml?pagewanted=all.
296. Id. In Florida, private debt collection companies can add a forty percent surcharge to unpaid
LFO debt. DILLER, HIDDEN COSTS, supra note 1, at 2.
297. See, e.g., ALASKA STAT. ANN. § 12.55.039 (West 2014); CONN. GEN. STAT. ANN. § 52-143
(West 2014); N.J. STAT. ANN. § 22A:3-4 (West 2014); N.M. STAT. ANN. § 31-12-6 (West 2014); N.C.

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1215

Such role differentiation, however, does not make the risk disappear
completely. While LFO collectors might prove overly zealous when collecting funds that sustain their own operations, they might care too little
if collection adds to their own workload and the benefits flow to some
other entity.298
The importance of financial motivation as a risk factor changes over
time; it is especially pronounced in times of budgetary stress. When government budgets shrink, criminal justice actors predictably look for revenue sources to fill the gap. As the Supreme Court recognized from the
beginning in Tumey, when revenue from LFOs constitutes a significant
portion of the total budget for a criminal justice program, the risk of selfdealing is high.299 Similarly, caution is warranted when revenue consistently exceeds the marginal costs of running a program.
B.

Risk Reduction from Commissions

Many of the risk factors we have discussed become salient only to
those who understand the criminal justice system as a whole. A person
or group benefitting from an LFO, for instance, might not know or care
about its negative effects. As a result, the people or institutions assigned
to reduce the risks of LFOs should have a system-wide perspective, with
the ability to appreciate how different pieces of the system interact. This
takes us beyond the capacity of judges deciding individual challenges to
the imposition of a particular LFO. The constitutional and common law
principles surveyed in Part IV help to identify high-risk areas, but, as
suggested, they fall short of a full, nuanced response to those risks.
For these reasons, we recommend creation of an independent commission. The commission should comprehensively review existing LFOs,
approve newly proposed LFOs, and collect and publish data relevant to
their legal and policy desirability. Sentencing commissions already operate in almost half of the states to develop, monitor, and improve sentencing laws and practices.300 In those jurisdictions, the management of LFOs
should become part of the portfolio for the sentencing commission.
In jurisdictions without a sentencing commission in place, a specialized commission should handle the job. Louisiana, for instance, operates
GEN. STAT. ANN. § 7A-304 (West 2014); R.I. GEN. LAWS. ANN. § 12-18.1-3 (West 2014); VA. CODE
ANN. § 17.1-275 (West 2014); W. VA. CODE ANN. § 50-3-2 (2014). For states with judicial authority
over LFO amounts, see, e.g., ME. REV. STAT. ANN. tit. 15, § 1901 (2014); N.D. CENT. CODE ANN. § 2701-10 (West 2014); OHIO REV. CODE ANN. § 2947.23 (West 2014).
298. For example, in Michigan’s rural areas, fines go to a state library fund, so courts are disinclined to impose them. Court costs and attorney-related LFOs, on the other hand, are set by the local
courts, and they receive the money, leading judges to impose them more often. ACLU, IN FOR A PENNY, supra note 4, at 38; see also REYNOLDS & HALL, supra note 99, at 11 (noting “tendency for locally
funded courts to prioritize local fees over legislative fees” and expressing concern that a judge could
“use the threat of waiving fees to force local entities to conform to practices or fee schedules that the
judge thinks are appropriate”).
299. See supra notes 159–170 and accompanying text.
300. See generally Richard S. Frase, State Sentencing Guidelines: Diversity, Consensus, and Unresolved Policy Issues, 105 COLUM. L. REV. 1190 (2005).

WRIGHT.DOCX (DO NOT DELETE)

1216

UNIVERSITY OF ILLINOIS LAW REVIEW

9/5/2014 10:54 AM

[Vol. 2014

a “Standing Committee to Evaluate Requests for Courts Costs
and Fees,” which works under the auspices of the Judicial Council of
Louisiana.301 The thirteen-member committee evaluates all LFO proposals by Louisiana state agencies and local governments and makes a
recommendation to grant or deny each LFO proposal. The Standing
Committee forwards its report to the Judicial Committee and ultimately
to the legislature for final approval.302
Whether the work ultimately stays in the hands of a pre-existing
unit of government or goes to a new specialized body, the entity should
reflect the lessons learned in the sentencing commission context. Sentencing commissions operate best when their members come from a
broad array of interested groups.303 Although supporters of commissions
often hope for a body insulated from ordinary political pressures,304 the
most effective policy comes from a commission that is well-connected
and able to produce politically feasible information and proposals.305
Commissions are also most effective when they pursue a portfolio of
related objectives. When commissions take on a single hot-button political topic that legislatures are unable to resolve, they usually fail to “take
the politics out” of the question; that was the predictable result when the
U.S. Sentencing Commission considered whether to address capital punishment.306 Commissions do better when sustained attention to a group
of inter-related questions can reveal connections and tradeoffs that actors might not have seen before, as when state sentencing commissions
quantify the long-term fiscal effects of changes to the criminal code.307
In the context of LFOs, a Commission could choose wisely if it is
aware of the overall budgets available to non-prison corrections programs, along with the challenges that offenders face during the re-entry
process. For that reason, the portfolio should include a range of questions relating to re-entry and collateral consequences.

301. See GENERAL GUIDELINES OF THE STANDING COMMITTEE TO EVALUATE REQUESTS FOR
COURT COSTS AND FEES 1, available at http://www.lasc.org/la_judicial_entities/Judicial_Council/
CourtCostGuidelines.pdf [hereinafter STANDING COMMITTEE GUIDELINES]. The Committee’s guidelines provide that the Committee is the
information-gathering and advisory arm of the Judicial Council created to develop and apply
guidelines for evaluating requests for new court costs and fees or increases in existing court costs
and fees prior to the submission of such requests to the legislature, and to report the Committee’s
findings and recommendations to the Judicial Council.
Id.at 1-2.
302. Id. at 4.
303. See Rachel E. Barkow, Administering Crime, 52 UCLA L. REV. 715, 772 (2005).
304. Id. at 813–14.
305. Louisiana’s Standing Committee, for instance, is comprised of members of the private bar,
judges, court administrators, court clerks, and prosecutors. See STANDING COMMITTEE GUIDELINES,
supra note 301.
306. See Sentencing Commission Guidelines: Hearing Before the Committee on the Judiciary, United States Senate, 100th Cong., First Session, on Guidelines Drafted by the U.S. Sentencing Commission, October 22, 1987, Volume 4, at 109, 271; cf. Franklin E. Zimring, The Unexamined Death Penalty:
Capital Punishment and Reform of the Model Penal Code, 105 COLUM. L. REV. 1396 (2005).
307. See RICHARD S. FRASE, JUST SENTENCING: PRINCIPLES AND PROCEDURES FOR A WORKABLE SYSTEM 164 (2013).

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1217

As with any regulatory agency, an LFO Commission would face the
risk of capture by private for-profit entities308 and others with a personal
stake in outcomes.309 Administrative law doctrines normally address this
risk through transparent procedures, limits imposed on the work of lawyers as they pass through the revolving door from government back into
private industry, and other measures.310 Those same policies would be
wise and feasible in the context of an LFO Commission.311
1.

Commissions—Taking Stock

As an initial matter, the work of the commission would require an
inventory of all LFOs authorized or used in a jurisdiction, whether emanating from state or local government. Such an inventory is no trivial
task given their large number and dispersion throughout the statutory,
regulatory, and ordinance codes.312 Effective assessment of LFOs also
requires the Commission to know how often and when they are used.313
With the inventory in place, Commission members, supported by
staff, should evaluate each LFO, mindful of the common law principles
and risk factors noted earlier. The Commission could either have its own
authority to revise current law, or it could recommend changes to the
legislature or any other body empowered to change the law. Yet if the
Commission were simply to publicize its inventory, it would perform a
major service for system actors who currently assess and collect LFOs
without understanding the full range of payments that are possible.
308. Such a concern is especially salient today, a time unlike the past when private business interests pushed back against government revenue generation, such as when businesses successfully curtailed prisoner-related industries that were undercutting their market share. Today, private business
interests directly benefit, courtesy of government policy, and thus cannot reasonably be expected to
exercise countervailing influence.
309. See, e.g., ACLU, IN FOR A PENNY, supra note 4, at 63 (reporting that in 2007 private probation companies pushed a bill that sought to expand their scope of offender coverage and an increase in
supervision fees); Dolnick, Prove Lucrative, supra note 289 (noting concern over political influence
enjoyed by New Jersey halfway house operator).
310. See RICHARD J. PIERCE ET AL., ADMINISTRATIVE LAW AND PROCESS 409–11 (5th ed. 2009);
see also Armstrong v. McAlpin, 625 F.2d 433, 443–54 (2d Cir. 1980) (en banc) (discussing screening
devices used to control conflicts of interest among former government attorneys in private practice),
vacated on other grounds, 449 U.S. 1106 (1981).
311. The guidelines for Louisiana’s Standing Committee, for instance, expressly require recusal of
any member with a “personal, family, or financial interest in the new court cost or fee,” and impose
limits on “[a]dvocacy and [l]obbying.” STANDING COMMITTEE GUIDELINES, supra note 301, at 3.
While advocates or opponents of a proposal can make their position known in writing, they are prohibited from making personal contact with a Committee or Council member and any such contact
must be publicly acknowledged by the member. Id.
312. See, e.g., CAL. PERFORMANCE REVIEW COMM'N, Simplify and Consolidate Court-Ordered
Fines, in THE PUBLIC PERSPECTIVE 133, 133 (2004), available at http://cpr.ca.gov/Commission
_Reports/pdf/Public_Perspective_Full_Report.pdf (noting existence of over 3,100 LFO’s scattered
among twenty-seven different State of California codes); see also People v. Gardner, No. H037574,
2012 WL 5507089, at *7 (Cal. Ct. App. 2012) (noting that ascertainment of LFOs “is consuming considerable time and resources at both the trial and appellate levels”).
313. A kindred inventory effort is now taking place with collateral consequences, under the auspices of the American Bar Association. See AM. BAR ASS’N CRIMINAL JUSTICE SECTION & NAT’L
INST. OF JUSTICE, Choose a Jurisdiction, http://www.abacollateralconsequences.org/map/ (last visited
Feb. 10, 2014).

WRIGHT.DOCX (DO NOT DELETE)

1218

UNIVERSITY OF ILLINOIS LAW REVIEW

9/5/2014 10:54 AM

[Vol. 2014

Consistent with its quasi-legislative design, the Commission’s work
would unavoidably address questions about basic public values. A major
threshold question the Commission might address is whether to repeal all
LFOs that are designed to maintain ordinary criminal justice system operations, and insist that government absorb such costs from general tax
revenue rather than passing them on to individuals that the system targets. This basic issue, implicating the neutrality norm, is contestable and
should be the subject of conscious and transparent deliberation.314
A jurisdiction might or might not favor imposing “costs” on offenders. Under one view, doing so is justified because a guilty (or charged)
individual caused the government to incur an expense it would not otherwise have incurred.315 Doing so might also foster a welcome selfresponsibility among those swept up in the criminal justice system, much
like the payment of restitution.316 On the other hand, there is the view
that the criminal adjudicatory process is irreducibly a government undertaking; the involuntary defendants it targets are not in any sense “users”
of government services.317
Then there is the question of connectedness. The Commission
might ask whether government should be permitted to use criminal
justice revenues to fund causes or functions only weakly or entirely unrelated to criminal justice or in excess of cost recovery.318
Finally, the Commission (or a legislature in the organic statute creating it) should address the possible relationship between LFOs and
over-criminalization. Funds collected from LFOs help criminal justice
systems to sustain themselves, and permit policy makers to avoid critical
scrutiny of the system, entailing budgetary prioritizations and tradeoffs.319
314. Given the vicissitudes of revenue flowing from LFOs, a government might also prefer a more
stable source of revenue. New Orleans, in the wake of Hurricane Katrina, serves as a prime cautionary example. BANNON ET AL., CRIMINAL JUSTICE DEBT, supra note 3, at 20 n.220.
315. See, e.g., State v. Young, 238 So. 2d 589, 590 (Fla. 1970) (“It is not unreasonable that one who
stands convicted . . . should be made to share in the improvement of the agencies that society has had
to employ in defense against the very acts for which he has been convicted.”).
316. See Pritikin, supra note 135, at 351.
317. See, e.g., Beckett & Harris, supra note 4, at 511; see also ROBERT TOBIN, NAT’L CTR. FOR
STATES COURTS, FUNDING THE STATE COURTS: ISSUES AND APPROACHES 50 (1996) (“It is beyond
dispute that [the concept of self-supporting courts] is not consistent with judicial ethics or the demands
of due process . . . .”); OR. REV. STAT. § 161.665(1) (2014) (excluding from payable costs supporting
“expenditures in connection with the maintenance and operation of government agencies that must be
made by the public irrespective of specific violations of law”); cf. C. Morgan Kinghorn, User Fees at the
Environmental Protection Agency, in FEDERAL USER FEES: PROCEEDINGS OF A SYMPOSIUM (Thomas
D. Hopkins ed., 1988) (commending user fee structures for their ability to allow agencies to be sustaining); Nat’l Cable Television Ass’n v. United States, 415 U.S. 336, 340 (1978) (“A fee . . . is incident to a
voluntary act.”).
318. Recent experience in Ohio highlights the decidedly political quality of the issue. The Ohio
Judicial Conference, while opposing use of court costs to fund programs “unrelated to the direct operation and maintenance of the courts,” in late 2012 recommended demurring on any recommendation
to the legislature, noting that “we think it would be difficult to gain the support of the Ohio General
Assembly for such an effort, especially given the economic restraints on the state budget.” COURT
ADMIN. COMM., OHIO JUDICIAL CONFERENCE EXECUTIVE COMMITTEE REPORT (2012), available at
http://test.ohiojudges.org/_cms/tools/act_Download.cfm?FileID=4204&/2012-0912%20Court%20Administration.pdf.
319. See Baker, supra note 8, at 24 (reflecting on practice from pre-colonial times that “[w]ithout
income from the prisoners themselves, the Massachusetts colony never would have been able to keep

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1219

Smoothing the financial path for the criminal justice system carries its
own social costs.320 LFOs underwrite the growth of criminal justice,
which could lead to more enforcement than society might otherwise prefer. Revenue from LFOs might skew a healthy public debate about
whether certain social harms are handled better outside the criminal system. The power of a Commission to put all of the various LFOs into a
single frame can inform this public debate.
At the same time, Commissions should recall that LFO revenues
can be put to constructive use. For instance, requiring a suspect or convict to pay for a GPS tracking device, allowing avoidance of prison or
jail, can be a win-win solution for individuals and the public (at once
achieving savings and public safety).321 However, the option creates the
risk that wealthier individuals can “buy” their freedom, a possibility that
warrants continued data collection and evaluation.
Nor should the involvement of for-profit private companies necessarily lead the Commission to make a categorical objection. Again, such
involvement might be good in a particular case: the private provider
might deliver a service that government cannot. However, the situation
raises obvious concern over undue profit motivation, and the Commission should closely monitor the involvement of such providers to avoid
the experience in Georgia recounted earlier.322 Finally, the fact that
payments may be extracted at an early stage of the criminal justice process, a chief risk factor identified earlier, should not be dispositive. Early
diversion can be quite beneficial for some individuals, so long as system
actors can monitor and check one another early in the process, aware of
the particular risks noted earlier.
Ideally, the LFO Commission (or the legislature) would do its work
based on specified criteria. In Louisiana, for instance, the Standing
Committee’s authorizing legislation directs the committee to ask whether
proposed LFOs are “reasonably related to the operation of the courts or
court system.”323 Committee guidelines specify that the analysis should
turn on whether the revenues from the proposed cost or fee will be used:
•to support a court or the court system or help defray the courtrelated operational costs of other agencies; or
•to support an activity in which there is a reasonable relationship
between the fee or court cost imposed and the costs of the administration of justice.324
its murderous, jerry-built, witch-hunting machine going for so long. Only a people that pay for its own
system of justice can judge the true worth of its laws.”).
320. The Supreme Court recognized this concern in its recent decision concerning warrantless use
of GPS tracking devices. See United States v. Jones, 132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring); id. at 963–64 (Alito, J., concurring)
321. See Samuel Wiseman, Pretrial Detention and the Right to be Monitored, 123 YALE L.J. 1344
(2014).
322. See supra note 291 and accompanying text.
323. LA. REV. STAT. ANN. § 13:62(B) (2014).
324. See STANDING COMMITTEE GUIDELINES, supra note 301, at 3. Based on the standard
set forth in the text, in 2012 the Committee recommended adoption of seven of eight proposals that
came before it (one of the eight was reported without committee action). See SUPREME COURT OF

WRIGHT.DOCX (DO NOT DELETE)

1220

UNIVERSITY OF ILLINOIS LAW REVIEW

9/5/2014 10:54 AM

[Vol. 2014

The Commission should also evaluate the effects of a LFO on the
criminal suspect, defendant, or offender. Again, imposing costs in some
circumstances might have penological or therapeutic value.325 The Commission, by virtue of its institutional distance,326 would also be well situated to assess the combined effects of all LFOs operating on a single offender.327 Numerous studies have chronicled the crushing effect that accumulated LFOs can have on individuals, creating bars to successful
reentry328 and possibly promoting recidivism.329
At the same time, the teachings of procedural justice330 suggest that
defendants—and communities—might view such LFOs as opportunistic
and “piling on” an already poor and disadvantaged subpopulation.331
Pre-trial abatement payments, such as the “post and forfeit” regime used
in the District of Columbia, and the “prosecution cost” strategy in
Minnesota,332 in particular, might be perceived as government extortion.
LFO collection methods should receive scrutiny for similar reasons.
Methods such as revoking drivers’ licenses, extending probation, blocking voter registration, and sending non-payers to jail (even though Supreme Court precedent prohibits this latter technique) could well inspire
ill-will and be counter-productive from a crime control perspective.333
When offenders and their communities believe that they have been
treated unfairly, re-integration into society becomes more difficult.334
Sentencing commissions have developed expertise on such questions.
They collect and analyze data, both quantitative and qualitative, about
LOUISIANA, REPORT OF THE JUDICIAL COUNCIL TO THE LOUISIANA STATE LEGISLATURE REGARDING REQUESTS FOR COURT COSTS AND FEES 4 (Mar. 12, 2012) [hereinafter STANDING COMMITTEE
REPORT, MARCH 2012] (on file with authors).
325. See supra notes 316 and accompanying text.
326. Cf. Brandon L. Garrett, Aggregation in Criminal Law, 95 CALIF. L. REV. 383, 393 (2007)
(noting that criminal courts handling individual cases lack the institutional perspective to address
broader systemic problems).
327. Taking account of the cumulative effect of LFOs would not lack precedent, as the Supreme
Court has acknowledged the propriety of doing so in the “stacking” of non-prison sanctions in determining whether a jury trial is constitutionally required. See Blanton v. City of N. Las Vegas, 489 U.S.
538, 542–43 (1989); cf. United States v. Levesque, 546 F.3d 78, 83–85 (1st Cir. 2008) (engaging in an
Eighth Amendment Excessive Fines Clause analysis and assessing not only whether a fine is grossly
disproportionate in relation to its associated offense, as required by Supreme Court precedent, but
also the defendant’s ability to pay).
328. See supra notes 2–5.
329. See, e.g., DILLER ET AL., MARYLAND’S PAROLE, supra note 2, at 17 (quoting a parole agent
to the effect that computer-generated dunning letters “pose a constant threat” that can promote
reoffending); id. at 18 (quoting a parolee who stated that ex-offenders commit new crimes to get
money to pay their incarceration fees); id. at 20 (“The financial burden can also give the individual a
sense that the system is not interested in having him or her succeed; that punishment just continues in
a new form after time in prison has been served.”).
330. See generally TOM R. TYLER & YUEN J. HUO, TRUST IN THE LAW: ENCOURAGING PUBLIC
COOPERATION WITH THE POLICE AND COURTS (2002).
331. See R. Barry Ruback et al., Perception and Payment of Economic Sanctions: A Survey of
Offenders, 70 FED. PROBATION 26, 28 (2006) (noting that ex-offenders who had difficulty paying fines
were more likely to believe that economic sanctions are a barrier to the successful completion of probation or parole and to ex-offenders being able to provide familial support).
332. See supra notes 86–88 and accompanying text.
333. BANNON ET AL., CRIMINAL JUSTICE DEBT, supra note 3, at 22–24, 27–29.
334. See TYLER & HUO, supra note 330, at 25 (arguing that treating offenders fairly promotes
crime control).

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1221

the impact of criminal punishments on targeted populations.335 That research and evaluative capacity should transfer readily to LFOs.
The Commission could also answer basic practical questions, such as
how much revenue actually flows from existing LFOs. Research suggests
that LFOs often suffer from low collection rates and that collection expenses can exceed the revenue they bring in.336 Perhaps the public benefits of LFOs do not exceed their operating costs.337 When private forprofit vendors are involved, as in Georgia with probation, providers have
strong incentive to rid non-paying defendants from their books, leaving
government to spend more than they would have without the companies’
338
involvement. In a jurisdiction that runs these payment systems without
assigning anybody to audit the books, it is hard to know.
If the LFO Commission endorses an expansive menu of LFOs, it
still should think about ways to set priorities among the different possibilities. Doing so, given the limited financial resources of most defendants, would oblige conscious evaluation of the relative costs and benefits
of particular LFOs. Such a policy is exemplied in state laws that favor
restitution vis-à-vis other payments such as fines.339
2.

The Transparency Benefit of a Commission

Once the LFO Commission completes its inventory and evaluation
of past practices, it will also need to respond to proposals for new and
amended LFOs going forward. Again, it should evaluate every potential
new LFO in light of the judicial principles identified earlier, tempered by
full awareness of the risks identified in the common law and constitutional insights of the courts.
The Commission’s best tool, especially as it resists the gravitational
pull of incentives for self-dealing that are built into so many LFOs, will
be transparency. Payments are more likely to serve the proprietary interests of government actors—and thus violate the judicial neutrality
335. See, e.g., AMY CRADDOCK ET AL., N. C. SENTENCING & POLICY ADVISORY COMM’N, CORRECTIONAL PROGRAM EVALUATION: OFFENDERS PLACED ON PROBATION OR RELEASED FROM
PRISON IN FISCAL YEAR 2008/09 (2012), available at http://www.nccourts.org/Courts/CRS/Councils/
spac/Documents/recidivism_2012.pdf.
336. The timing of an LFO may prove important to its revenue effects: research suggests that
governments recover less with respect to parole fees but higher amounts (based on higher collection
rates) for probation-related LFOs. NEW YORK BAR RE-ENTRY REPORT, supra note 122, at 180. The
LFO amount could also have some bearing on the success of collection efforts: smaller fees increase
chance of collection and removal of reentry barriers will save money in the long-term. Rosenthal &
Weissman, supra note 2, at 20–21, 34.
337. In 1994, Virginia abolished its parole supervision fee for this reason. DILLER ET AL.,
MARYLAND PAROLE, supra note 2, at 22–23.
338. Bellacicco, supra note 294, at 240–42, 259. The commission might also take into account
performance effects on front-line actors. Requiring probation and parole officers, for instance, to
spend their time collecting LFOs might detract from their primary service mission. See American
Probation and Parole Association, supra note 283 (“[T]he quality and direction of community supervision may be adversely affected, particularly in [LFO] dependent organizations. Direct responsibility
for [LFO] collections compromises the primary role of probation and parole officers . . . . [C]ollections
can easily become the measure of officer and offender performance.”).
339. See, e.g., MINN. STAT. ANN. § 609.10(2)(b) (2014); MO. REV. STAT. § 560.026(1) (2012).

WRIGHT.DOCX (DO NOT DELETE)

1222

UNIVERSITY OF ILLINOIS LAW REVIEW

9/5/2014 10:54 AM

[Vol. 2014

principle—when they are set and collected invisibly.340 A Commission,
with its ongoing duty to monitor and improve the system of LFOs, would
routinely collect information about these practices. Importantly, the
Commission would publish this information in a format that facilitates
comparisons across time and across different units of government. A
locality or division of government that appears to use LFOs in a manner
out of line with the rest of the state should be subject to closer scrutiny.
The fact that so many LFOs operate at the local level is important
when it comes to transparency. The late Professor William Stuntz, in his
book, The Collapse of American Criminal Justice, extols the localization
predominant in earlier era American criminal justice systems for greater
democratization, fairness, and lenience.341 But as one of us has pointed
out elsewhere,342 localization carries with it the risk of parochial excess.343
The low visibility practices of local officials, sometimes based on murky
legal authority and proceeding without regular public scrutiny,344 make
this danger a vivid one for LFOs.345
Local actors with the incentive to move aggressively in collecting
funds can do so more easily when nobody is watching closely. By way of
example, for many years the sheriff of Clinch County, Georgia, charged
room and board for jail without any statutory authority to do so.346 Only
judicial intervention ended the practice.347 Similar excesses occur at the
hands of local prosecutors and trial courts,348 and the strong appeal of
added revenue keeps these practices alive.349 The need to monitor locali340. Overtime secured by “over-policing” affords one such example from a related context. See,
e.g., HARRY G. LEVINE & DEBORAH PETERSON SMALL, N.YC.L. UNION, MARIJUANA ARREST CRUSADE: RACIAL BIAS AND POLICE PERJURY IN NEW YORK CITY 1997-2007, at 19–20 (2008) (evidencing
police motivation to execute arrests for low-level, order maintenance crimes to generate easy overtime
pay).
341. STUNTZ, supra note 11, at 311–12.
342. See Wayne A. Logan, The Shadow Criminal Law of Municipal Governance, 62 OHIO ST. L.J.
1409, 1425–28 (2001).
343. See id.; see also Robert Weisberg, Crime and Law: An American Tragedy, 125 HARV. L. REV.
1425 (2012) (reviewing WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE
(2011)).
344. See, e.g., KATHERINE BECKETT ET AL., THE ASSESSMENT AND CONSEQUENCES OF LEGAL
FINANCIAL OBLIGATIONS IN WASHINGTON STATE 22–25 (2008), available at https://www.google.
com/search?q=LFO&rlz=1C1TSNO_enUS468US468&oq=LFO&aqs=chrome..69i57j0l5.1324j0j7&sou
rceid=chrome&espv=210&es_sm=122&ie=UTF-8#q=LFO+court (noting significant inter-county
variation in LFO amounts imposed on similarly situated defendants).
345. Experience in Louisiana again affords an instructive example. As a result of a legislative
change in 2011, the Standing Committee was expressly stripped of purview over proposals by “mayor’s
courts,” which the Committee called “essentially revenue generators for local public safety and other
municipal operations that may not be associated with the administration of justice…[and therefore]
generally not likely to receive a recommendation from the Judicial Council.” STANDING COMMITTEE
REPORT, MARCH 2012, supra note 324, at 2.
346. Rosenthal & Weissman, supra note 2, at 26.
347. See id. In Massachusetts, a county sheriff, functioning as jailer, charged inmates for haircuts
at a rate far above the state-set amount and imposed other statutorily unauthorized costs for services
such as GED testing. Bouza v. Sheriff of Bristol County, 918 N.E.2d 823, 831–34 (Mass. 2010).
348. Olson & Ramker, supra note 124; Peterson, supra note 9, at 40.
349. Experience in New York State highlights this strong pull. There, in the 1990s after the state
allowed localities to impose and keep an administrative fee of $30 a month on each DWI probationer,
localities enacted laws of their own allowing for fees to be collected from non-DWI probationers.
NEW YORK BAR RE-ENTRY REPORT, supra note 122, at 167. In 2003, an Opinion by the State Attor-

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1223

zation will become even more important if other states follow the lead of
California’s “realignment” policy,350 which would usher more of a state’s
criminal offenders into local jails.
The Louisiana Standing Committee, mentioned earlier, offers a sobering case study in the power of government revenue incentives. Under
its original guidelines, the Committee often rejected proposals because
the financial information of the applicant failed to demonstrate “the
need for revenues generated by the imposition of any proposed cost or
fee.”351 Indeed, in its 2010 report, the Committee rejected five of seven
requests because the unit of government making the request had not explained the connection between anticipated LFO proceeds and the government’s averred need for revenue.352 After the legislature amended the
standards to exclude consideration of the match between the government’s stated revenue needs and the likely monetary benefit of a proposed LFO, Committee approval became more routine and its scrutiny
less vigorous.353
Finally, by collecting and rationalizing LFOs, a Commission could
help improve plea-bargaining, by far the most common mechanism used
to resolve criminal cases today.354 The Supreme Court, with Padilla v.
ney General concluded that the local initiatives were unlawful, as they were preempted by state law;
nevertheless, the local practices continued, along with the revenue stream afforded. Id. at 167–68. For
examples of similarly aggressive behaviors by localities see Gibeaut, supra note 2, at 54; BANNON ET
AL., CRIMINAL JUSTICE DEBT, supra note 3, at 10, 36 n.26; REYNOLDS & HALL, supra note 99, at 10–
11; NEW YORK BAR RE-ENTRY REPORT, supra note 122, at 87–89; Ruback & Clark, supra note 136, at
755.
350. See Heather Gilligan, Effects of Change in California Criminal Justice System Difficult to
Discern, SACRAMENTO BEE, Oct. 22, 2012, http://www.sacbee.com/2012/10/22/4927963/effects-ofchange-in-california.html. On the issue of realignment, it is worth noting that the political shift itself
suggests an awareness of local government incentives. State legislators, cognizant of the moral hazard
presented by local authorities convicting individuals and dispatching them to state-run prisons, with
the state (not local) government picking up the tab, required that counties absorb more offenders. See
John F. Pfaff, Waylaid by a Metaphor: A Deeply Problematic Account of Prison Growth, 111 MICH. L.
REV. 1087, 1106 (2013).
351. STANDING COMMITTEE REPORT, March, 2012, supra note 324, at 3.
352. See, e.g., SUPREME COURT OF LOUISIANA, REPORT OF THE JUDICIAL COUNCIL TO THE
LOUISIANA STATE LEGISLATURE REGARDING REQUESTS FOR COURT COSTS AND FEES 1 (Mar. 29,
2010) (rejecting five of seven requests on this basis) (on file with authors). The Committee denied
requests when it had record evidence of improved government budgetary circumstances; projected
revenue generated would far exceed costs being sought to be recovered; explicit need was not established, such as to secure new office space or a raise for a government official; and when costs were
sought to cover a government’s general operating expenditures. Id. at 3, 4, 6, 11.
In 2011, the Committee rejected a proposal from a state representative seeking increased
criminal court costs, by a maximum amount of $5, to fund the state’s Witness Protection Services
Board, which the proposal suggested would eliminate the need for an annual supporting appropriation
from the legislature. In recommending against approval, the Committee noted that the Board in 20102011 had used only a small fraction of its $140,000 appropriation and that the new cost would yield
approximately $4.1 million in the coming fiscal year. See SUPREME COURT OF LOUISIANA, REPORT OF
THE JUDICIAL COUNCIL TO THE LOUISIANA STATE LEGISLATURE REGARDING REQUESTS FOR
COURT COSTS AND FEES 4 (Apr. 12, 2011) (on file with authors).
353. Despite the best efforts of the authors, it remains unclear how and why the 2011 legislative
amendment came about; the Committee’s restricted scrutiny over government’s financial needs and
justifications of proposed costs and fees, however, has had palpable effect. With the more hands-off
review, the success rate of proposals has significantly improved.
354. See STUNTZ, supra note 11, at 7 (noting that over ninety-five percent of all criminal cases
today are resolved by pleas).

WRIGHT.DOCX (DO NOT DELETE)

1224

UNIVERSITY OF ILLINOIS LAW REVIEW

9/5/2014 10:54 AM

[Vol. 2014

Kentucky355 and Missouri v. Frye,356 has begun to specify the duties of defense lawyers to give their clients adequate advice about sentencing and
other consequences of a conviction during plea negotiations.357 While an
attorney’s full and open discussion of LFOs will not likely become a
Sixth Amendment requirement any time soon,358 providing defendants a
forthright explanation of the nature and extent of LFOs aligns with the
ethical duty of defense counsel to ensure that clients fully understand
plea consequences.359 Greater transparency is also consistent with the
ethical duties of prosecutors.360 As Robert Johnson, former head of the
National District Attorneys Association said with respect to collateral
consequences, when prosecutors fail to disclose the full consequences of
a brokered conviction they could “suffer the disrespect and lose the confidence of the very society [they] seek to protect.”361
With LFO information on the table, so to speak, the parties will be
better positioned to negotiate efficient outcomes based on what Padilla
called “informed consideration” of the nature and scope of the consequences of conviction.362 Fuller awareness of the actual consequences of
conviction could shift the balance of negotiating power,363 and possibly
change the nature and number of charges resulting in negotiated conviction.364
355. 130 S. Ct. 1473, 1486 (2010) (holding that defense counsel’s failure to inform client of likely
deportation consequence of conviction constituted ineffective assistance of counsel); see also
Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection, 99 CAL. L. REV. 1117, 1147 (2011) (noting that Padilla requires courts to focus on “the importance of particular consequences rather than their criminal or civil labels”); id. (“The Sixth
Amendment test should be not whether a consequence is labeled civil or collateral, but whether it is
severe enough and certain enough to be a significant factor in criminal defendants’ bargaining calculus.”).
356. 132 S. Ct. 1399, 1408 (2012) (holding that defense counsel’s failure to inform a client of a
favorable plea offer constituted ineffective assistance of counsel).
357. Lower courts, addressing the Sixth Amendment duties of defense counsel to advise their
clients about collateral consequences, are now extending Padilla’s logic beyond the immigration/deportation context in which it arose. See Margaret Colgate Love, Collateral Consequences after
Padilla v. Kentucky: From Punishment to Regulation, 31 ST. LOUIS UNIV. PUB. L. REV. 87, 105–11
(2011).
358. LFOs, however, certainly when statutorily required, have a “close connection to the criminal
process,” as required by Padilla. See Padilla, 130 S. Ct. at 1482.
359. See, e.g., Libretti v. United States, 516 U.S. 29, 50 (1995) (“[I]t is the responsibility of defense
counsel to inform a defendant of the advantages and disadvantages of a plea agreement . . . .”).
360. See MODEL RULES OF PROF’L CONDUCT R. 3.8 cmt. 1 (2010) (stating that prosecutors have
“specific obligations to see that the defendant is accorded procedural justice”); ABA STANDARDS FOR
CRIMINAL JUSTICE: PROSECUTION AND DEF. FUNCTION 3-1.2(c) (1993), available at http://www.
americanbar.org/content/dam/aba/publications/criminal_justice_standards/prosecution_defense_
function.authcheckdam.pdf.
361. Robert M.A. Johnson, Collateral Consequences, 16 CRIM. JUST. 32, 33 (2001); cf. Paul H.
Robinson & John M. Darley, The Utility of Desert, 91 NW. U. L. REV. 453, 454 (1997) (arguing that
aligning criminal liability with community’s shared sense of fairness and proportionality affords consequentialist benefits).
362. See Padilla, 130 S. Ct. at 1486.
363. See Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. REV. 2463,
2470–77 (2004) (discussing the effect of information asymmetries on bargaining positions of parties);
Russell D. Covey, Fixed Justice: Reforming Plea Bargaining with Plea-Based Ceilings, 82 TUL. L. REV.
1237, 1240–41 (2008).
364. See Wayne A. Logan, Informal Collateral Consequences, 88 WASH. L. REV. 1103, 1103–05
(2013).

WRIGHT.DOCX (DO NOT DELETE)

No. 4]

MERCENARY CRIMINAL JUSTICE

9/5/2014 10:54 AM

1225

Greater judicial awareness of the cumulative effects of LFOs could
also affect judges’ conduct during guilty plea hearings. While judges play
a decidedly secondary role in the plea-bargaining process,365 plea colloquies can reinforce to defendants the true consequences of a guilty
plea.366 Such judicial involvement367 is especially important with indigent
defendants charged with minor offenses,368 who typically lack the input of
counsel because they do not face actual imprisonment.369
A Commission, serving as the institutional gatekeeper of LFOs,
could protect against local excesses.370 State policy positions will result
from evidence-based conscious choices, not haphazard reactions to uncoordinated funding requests from system actors under political and financial pressure.371 While judicial challenges to LFOs still can play a role

365. See Ronald Wright & Marc Miller, The Screening/Bargaining Tradeoff, 55 STAN. L. REV. 29,
39 (2002).
366. At least in one jurisdiction, however, the scale of LFOs has become so burdensome that
judges who formerly specified each LFO in court now only indicate the total aggregated amount owed
by defendants. See Mary Fainsod Katzenstein & Mitali Nagrecha, A New Punishment Regime, 10
CRIMINOLOGY & PUB. POL’Y 555, 559 n.7 (2011).
367. See supra notes 360, 362.
368. In Florida, for instance, one study found that seventy percent of minor offense defendants
pled guilty or no contest at arraignment and that most of those entering pleas at arraignment were in
custody. ALISA SMITH & SEAN MADDAN, NAT’L ASS’N OF CRIMINAL DEF. LAWYERS, THREEMINUTE JUSTICE: HASTE AND WASTE IN FLORIDA’S MISDEMEANOR COURTS 15 (2011), available at
http://www.nacdl.org/flmisdemeanor/. On average, the arraignment proceedings took less than three
minutes. Id. For more on the issue, see Jenny Roberts, Why Misdemeanors Matter: Defining Effective
Advocacy in the Lower Criminal Courts, 45 U.C. DAVIS L. REV. 277 (2011).
369. See Alabama v. Shelton, 535 U.S. 654, 662 (2002) (reaffirming the “actual imprisonment”
standard for entitlement of publicly paid counsel under the Sixth Amendment); see also John D. King,
Beyond “Life and Liberty”: The Evolving Right to Counsel, 48 HARV. C.R.-C.L. L. REV. 1, 2 (2013)
(describing deprivations of counsel in lower courts); cf. Justin Marceau & Nathan Rudolph, The Colorado Counsel Conundrum: Plea Bargaining, Misdemeanors, and the Right to Counsel, 89 DENV. U. L.
REV. 327 (2012) (describing Colorado rules and practice allowing for “pre-counsel” pleas in misdemeanor cases).
Such transparency assumes even greater importance given the increasing practical irrelevance of Bearden v. Georgia, which held that a criminal justice debtor can be imprisoned only upon a
finding of “willful” failure to pay. 461 U.S. 660, 668 (1983). Today, the case is often construed narrowly or disregarded altogether. See Ann K. Wagner, The Conflict over Bearden v. Georgia in State
Courts: Plea-Bargained Probation Terms and the Specter of Debtors’ Prison, 2010 U. CHI. LEGAL F.
383, 391–96 (noting tendency of courts to not apply Bearden in instances of plea bargains); Harris et
al., Drawing Blood, supra note 4, at 1784 (surveying instances in which the Bearden rule is ignored
altogether); ACLU, IN FOR A PENNY, supra note 4, at 34–35, 47–52; DILLER, HIDDEN COSTS, supra
note 1, at 20. Worse yet, it is not unusual for jurisdictions to also charge for the rearrest and reincarceration resulting from failure to pay. See Harris et al., Drawing Blood, supra note 4, at 1784; ACLU,
IN FOR A PENNY, supra note 4, at 43.
370. The commission could also identify the variations in burdens (and services) that flow from
fragmented enforcement, judicial, and corrections systems. See REYNOLDS & HALL, supra note 99, at
10 (“Local financing contributes to a fragmented court system where ‘services vary dramatically according to the locality’s ability to pay.’”) (quoting A.B.A., STANDARDS RELATING TO COURT ORGANIZATION 99 (1974)).
371. See NEW YORK BAR RE-ENTRY REPORT, supra note 122, at 169 (“The creation and increase
of fees, surcharges, or other financial penalties [occurs] in a vacuum. They are seldom, if ever, seen by
the legislature in the context of the sum of all penalties. Each increased financial penalty viewed in
isolation appears to be a good idea for revenue production.”); Koppel, supra note 82 (noting that the
head of local Oklahoma “DA Probation Supervision” was “slow to implement the program because he
was worried that some could raise conflict concerns. But budgetary pressures prompted him to launch
the program . . . .”).

WRIGHT.DOCX (DO NOT DELETE)

1226

9/5/2014 10:54 AM

UNIVERSITY OF ILLINOIS LAW REVIEW

[Vol. 2014

to keep matters in check,372 a Commission with a systemic view would
carry a major share of the load.
VI. CONCLUSION
Pecuniary benefits for enforcers have always figured in criminal justice. In the 1920s, the Supreme Court saw the need to discipline a system
of incentivized criminal justice.373 Today, we see an unprecedented profusion of techniques that create less direct monetary benefit for system
actors374 but which create conditions ripe for unchecked growth: highvolume outcomes reached by many different actors, operating in
low-visibility contexts, each one unaware or uncaring of the work of the
others.
While our current LFO-dominated criminal justice system seems
like a throwback to earlier centuries, when incentives for private and institutional gain were commonplace, the nation now seemingly finds itself
on the verge of something new in criminal justice. Having at last awakened to the adverse human and fiscal consequences of mass incarceration, criminal justice policy makers are showing greater willingness to
pursue alternative approaches at less expense to taxpayers.375 In the
midst of this shift, however, revenue from LFOs will continue to have
strong appeal, especially in the face of budgetary difficulties.
Use of a LFO Commission, along the lines suggested here, would allow criminal justice systems to handle this pressure. LFOs are neither
necessarily good nor bad in themselves. A Commission will facilitate the
line-drawing enterprise, offering a system-wide vantage point and a
mechanism for ongoing evaluation, based on explicitly identified norms,
seasoned by consciousness of the predictable institutional risks. Ultimately, we hope to see a check on the mercenary tendency of American
criminal justice, helping to ensure that we “hold the balance nice, clear,
and true” between governments and the individuals they seek to convict
and punish.376
372. See, e.g., State v. Payne, 225 P.3d 1131, 1145 (Ariz. Ct. App. 2009) (invalidating on preemption grounds county “prosecution fee” not authorized by state statute). For examples from an earlier
era, evincing concern for disparate intra-state applications, see, e.g., State v. Gregori, 2 S.W.2d 747,
750 (Mo. 1928) (en banc) (invalidating $1 assessment in criminal cases only in counties having eight or
more district courts); Ex Parte Ferguson, 132 S.W.2d 408, 410 (Tex. Crim. App. 1939) (invalidating on
equal protection grounds a statute that assessed a varying fee upon defendants based on county population).
373. Tumey v. Ohio, 273 U.S. 510, 531 (1927).
374. Brazen and quite troubling instances of direct personal benefits to system actors still arise, as
in Pennsylvania, where juvenile court judges accepted millions of dollars in kickbacks from a private
juvenile detention facility in exchange for sending children as young as 11 to jail, provide a notable
exception on this count. See WILLIAM ECENBARGER, KIDS FOR CASH: TWO JUDGES, THOUSANDS OF
CHILDREN, AND A $2.8 MILLION KICKBACK SCHEME 106–07 (2012).
375. See, e.g., Mary D. Fan, Beyond Budget-Cut Criminal Justice: The Future of Penal Law, 90
N.C. L. REV. 581, 583–84, 620–39 (2012); Jan Moller, Prison Sentence Reform Efforts Face Tough
Opposition in the Legislature, TIMES-PICAYUNE (New Orleans) (May 16, 2012), http://www.nola.
com/crime/index.ssf/2012/05/prison_sentence_reform_efforts.html.
376. Tumey v. Ohio, 273 U.S. 510, 532 (1927).