One target of the criminal justice reform movement has been the use of fines and fees by state and local courts to either help finance a local government, or incarcerate people simply for their inability to pay. Though many jurisdictions have rolled back such practices, Duke University law professor Brandon L. Garrett says many haven’t, and the practice could get worse as governments look for sources of income in the coming months.

By Brandon L. Garrett

To respond to the devastating economic effects of this covid-19 emergency, governments have taken aggressive measures to prop up corporations with bailouts, help the unemployed, prevent utility shut-offs and halt evictions. Although our courts are largely closed, many are still trying to collect fines — and even jailing people who cannot pay. We need modern-day Robin Hoods to protect us from our Sheriffs of Nottingham, who will not stop imposing fines that people cannot afford.

After the last financial crisis, most states ramped up on fines and fees, making our police officers and judges revenue collectors, and relying on our poorest citizens to fund basic functions of government. People’s constitutional rights were violated, they were trapped in crippling cycles of debt, and the bulk of these fines could never be collected, because people could not afford to pay. In many states, people convicted of felonies cannot regain the right to vote until they have paid fines. Now more than ever these abuses must end.

How crushing is the court debt burden? Exhibit A is North Carolina, where lawmakers erected toll booths in the courts, with dozens of fines and fees designed to extract millions from the most minor criminal cases, like traffic cases. In an effort to run around the U.S. Supreme Court’s ruling in Bearden v. Georgia, which prevents punishing people for poverty, the lawmakers set up a system to make it as hard as possible for judges to waive fines, even where people are manifestly unable to pay.

Vast numbers of people suffer under these systems. My colleagues and I analyzed three decades of data from the Administrative Office of the Courts, and found that in over 1.72 million cases total — and 120,000 cases each year — the criminal courts in North Carolina have imposed costs that people cannot or do not pay. Over 650,000 people, or 1 in 12 adults in North Carolina, currently have such unpaid criminal court debt, as we display in a website. Many of these cases are years, even decades, old. Most were minor cases that do not result in jail time — just debt.

Across the country, consequences for failing to pay court fines can include loss of a driver’s license, which affects millions of people, including over a million just in North Carolina. People then cannot legally drive to work, school, doctors or their families. And yes, people are jailed for failing to pay court costs: a virtual debtors prison. This debt disproportionately burdens minority residents, in addition, of course, to the indigent. In North Carolina, two-thirds of adults are white, but about two-thirds of those with unpaid fines and fees are minorities.

Judges should do justice and not be required to serve as tax collectors. Placing them in the position of saying in effect, “your money or your rights,” deeply undermines their legitimacy and independence.

“Over 650,000 people, or one in twelve adults in North Carolina, currently have such unpaid criminal court debt … The vast bulk were minor cases that do not result in jail time — just debt.”

At a time when courts are closed, it is all the more unfair and incongruous to keep debts on the books that people cannot address. It is still more distressing to hear that some jurisdictions are still jailing people for unpaid debt, potentially exposing them to the novel coronavirus, which is exploding in our jails. Indeed, apart from court debt, people continue to be jailed in many states for inability to pay cash bail, despite these challenging economic times, and despite the public safety risks to entire communities from disease outbreaks in our jails.

A few states have taken action, although most have just temporarily suspended debts, which North Carolina did for 90 days. California’s state taxing authority, the Franchise Tax Board, suspended collection of all criminal justice debt. Oregon courts stopped collecting fees. Delaware courts stopped issuing failure-to-pay warrants. Some local jurisdictions have stopped imposing criminal debt. Federal stimulus legislation prevents states from taking money from relief checks for fines and fees.

We urgently need to suspend all court debt during the public health emergency and take aggressive action to end these practices and wipe old debts from the books. States must end driver’s license suspensions for nonpayment of fines and fees, as Virginia recently did.

We most hold our lawmakers accountable: no states should respond to the coming budget shortfalls by trying to rely on the judges as their de facto tax collectors. Instead, laws should make clear that judges must be permitted, indeed required, to conduct a robust inquiry into a person’s ability to pay before imposing any court fines, fees or costs.

Our prosecutor in Durham, in moving to dismiss thousands of old cases with unpaid court debt, told the judge that it was time for a Year of Jubilee, noting that in ancient times, “Even tyrant kings would periodically cancel debts to allow the poor a measure of respite from their harsh conditions.”

For far too long our courts preyed on the poor, creating a cycle of unpayable debt, resulting in loss of rights and economic harm. During this emergency, we must put an end to these unconstitutional, discriminatory and counterproductive practices. We need a Year of Jubilee.

Brandon L. Garrett is the L. Neil Williams Professor of Law at Duke University School of Law. He directs the Center for Science and Justice at Duke.