A recent appeal denied by Michigan’s state Supreme Court has once again brought to light the fact that the state’s district judges don’t just adjudicate cases. They are also, in too many jurisdictions, expected to charge fines and fees to fund both their own courts and the city and county governments that host them.
The result is that people aren’t just punished for whatever infraction they may have committed. They are also expected to help raise the funds to pay for the court clerk’s next raise—whether they can afford those fees or not.
Michigan’s highest court may have skirted the issue of charging defendants “costs” in addition to punitive fines via its recent decision in People v. Cameron, but criminal justice advocates, Michigan’s judges, and Michigan law alike say it’s time for the practice to end.
The issue of the law enforcement system treating defendants like ATMs first exploded into the public consciousness after the 2014 riots in Ferguson, Missouri. But in Michigan, defendants going before local courts for everything from DUI arrests to felonies have been forced to help fund the state’s criminal justice system (and contribute to local governments’ coffers) for decades. Today, according to a 2018 report by the Michigan Trial Court Funding Commission, more than 26% of the funding for Michigan’s trial courts comes from the courts themselves—and while the state provides more than 22% of the needed funding, a significant portion of the state’s contributions “originate from court assessments at sentencing.”
The Michigan District Judges Association is so concerned about the issue that four of its member judges submitted amicus briefs to the court in Cameron. In his letter as part of the brief, Ingham County Chief Judge Thomas Boyd wrote, “The pressure to fund the district court in sentencing is real. It is a potentially corrupting presence in each and every criminal case.” In fact, while Boyd said that his court currently enjoys the support of the Ingham County Commission, the first county administrator he met as a new judge in 2005 told Boyd that “district court is the cash cow of local government.”
While one justice advocate told Daily Kos that, nationwide, the problem of court fines and fees was caused by the convergence of mass incarceration and the “no new taxes” movement, Boyd said that Michigan’s courts started squeezing defendants to pay court costs beginning around World War II.
Michigan’s state constitution is very clear that money from penal fines—that is, fines charged to punish someone who has been found guilty of breaking a law—are supposed to be used to fund local libraries. “[The drafters of Michigan’s 1835 and 1962 constitutions] knew fundamentally that it was important to keep the profits of a judge's decision away from the judge,” Boyd told Daily Kos.
Starting around World War II, however, officials decided to create a new type of fee for criminal defendants in addition to penal fines. Penal fines continue to flow to the state’s libraries, while these relatively new categories of fees are used to fund the courts and the municipalities that house them.
How is this possible? It’s complicated. While Michigan’s state constitution forbids using the courts as fundraising operations, Boyd explained, during World War II an attorney general, and then the state court of appeals, decided that “when an ordinance is being enforced, then there's a fine, not a penal fine."
Confused yet? So are many judges. Boyd recalled a case from the 1980s in which libraries in Saginaw County sued when the local district court switched from charging defendants penal fees to assessing something the court called “costs,” and thus keeping funds that by law belonged to the library.
The Court of Appeals denied the libraries’ claim, said Boyd, finding that libraries aren’t entitled to a specific amount of money from the courts. At the same time, he added, the Court of Appeals’ decision includes a sentence telling the library it must be wrong about how the district court was charging defendants “because there’s no legal authority to charge [defendants] for court costs.”
Whether or not the legal authority existed, courts kept finding ways to call penal fines something else in order to raise operating funds. For example, Boyd said, most drunk driving offenses are prosecuted under municipal ordinances that say, in effect, that the penal fines for drunk driving are not actually penal fines—and thus can be kept by the court instead of paid into the library system.
Finally, in 2014, Michigan’s Supreme Court made what was supposed to be the final statement on the matter in the case of People v. Cunningham, ruling that courts do not in fact have the legal authority to use their benches as a fundraising tool. In response, Michigan’s Republican legislature and governor amended the law to preserve the status quo. The new law, which may be in violation of the state’s constitution, is set to expire in October 2020.
Michigan may have opened the door to additional fines and fees during World War II, but the explosion in court costs across the country was the result of a combination of two more recent trends: mass incarceration and the “no new taxes” craze. “When beginning in the 1980s we started to incarcerate more and more people, the cost of the justice system quite literally exploded,” said Fines and Fees Justice Center co-director Lisa Foster. Exponentially more money was needed, not just to house people in jail, but to pay everyone from the judges and bailiffs to the police and probation officers who keep the criminal justice machine’s cogs moving.
“At the same time,” Foster told Daily Kos, “we have the ‘no new taxes’ movement sweep the country, so legislators aren't really interested in raising taxes to pay for the system.” As a result, Foster said, legislators fell onto the idea of “users’ fees,” and “started dramatically increasing the number of fees that are imposed and the amount of those fees—and then legislators start thinking, well, this is actually a pretty neat trick, raising money through the justice system.”
This “neat trick” has ensnared everyone from the people of Ferguson to the suburban residents of Doraville, Georgia, where in 2015 a city newsletter bragged that “bringing in over $3 million annually, the court system contributes heavily to the city’s bottom line.”
The use of fines and fees to fund local government isn’t limited to the court system. On July 22, USA Today reported on the fight residents (and former residents) of Dunedin, Florida, are facing over fines of as much as $669,500. That includes the roughly $31,000 charged to a resident for the “crime” of temporarily fixing damage to his own roof after a hurricane. But whether fines and fees are the result of a criminal court case or a city council funding its operations by charging residents thousands of dollars for supposedly overgrown grass, the results can be devastating for people receiving the bills. For example, 43 states, including Michigan, suspend peoples’ drivers licenses over unpaid fines and fees, according to Foster
The original fines may be for “any number of minor infractions,” but if the person gets caught driving anyway to get to work, a doctor’s appointment, or even a mandated court date, they face an additional misdemeanor conviction—and even more fines and fees. In Florida, Foster said, 72% of individuals who have had their drivers licenses suspended lost their licenses because of unpaid fines and fees.
In May, two Republican appointees (including a Trump appointee) to the 6th Circuit Court of Appeals overturned a lower court decision that had determined it was unconstitutional for Michigan to suspend a person’s drivers license over unpaid fees without first determining whether or not the person can afford to pay.
“If you think about it for a nanosecond, if our goal is to have people pay us money, why would we take away their means of getting to work?” Foster asked.
Dawn Wolfe is a freelance writer and journalist based in Ann Arbor, Michigan. This post was written and reported through our Daily Kos freelance program.