For decades Oklahoma has funded its courts, law enforcement and public services on the backs of criminal defendants. This funding model creates numerous problems including underfunded crime prevention and victim’s services, police forced to waste time serving as debt collectors, and fines and fees which function as a tax on low income families in Oklahoma. Using criminal court fines and fees to fund courts does much more harm than good in our State - and luckily the Oklahoma legislature has begun to recognize that this funding policy has failed. Last year saw two monumental policy wins in the way we assess fines and fees, and this year represents an even bigger opportunity for reform.
What are Fines & Fees?
When a person is convicted of a crime they are generally assessed monetary penalties in the form of fines. These fines are designed as punishment t and theoretically create a deterrent effect to keepothers from committing crimes. Fines are usually defined by statute - for example, the offense of criminal trespass carries a fine “not to exceed …. $250.00.” On the other hand, fees are assessed to help cover the cost of operation for the criminal legal system. Things such as transcript fees, clerk fees, and lab fees are assessed to defendants in order to keep these operations viable. Importantly, fines and fees do not include restitution - which are payments directly to the victim of the crime assessed by courts to make victims whole .
The Problem with Fines & Fees Assessment to Fund Courts
Most People Can’t Pay
The first major problem with fines and fees assessments is that most criminal defendants are simply unable to pay them. Statistically, 80% of all criminal defendants are indigent, meaning they cannot afford to obtain a lawyer to defend them. Defendants who cannot afford a lawyer are unlikely to be able to pay the assessed fines and fees as well. One study “meta-analysis” found that anywhere from 50% to 90% of all criminal defendants are behind on their fines and fees payments. In Oklahoma County, a vast majority of criminal defendants could not make a single payment and the average amount paid was a mere $43.
The fact that most criminal defendants cannot pay their court ordered fines and fees has two major consequences . First, the continual cycle of debt and incarceration destroys communities by forcing individuals to make payments that they cannot afford. Excessive fines and fees force families to make impossible choices between feeding their families and repaying court debt, all the while dealing with significant barriers to employment that come with a criminal record. However, another destructive impact - it also leaves many of Oklahoma’s executive agencies and law enforcement who rely on that funding without the necessary resources. For example, Distinct Attorneys use fines and fees collection to help fill in nearly 60% of their budget while the Council on Law Enforcement Education and Training (CLEET) relies on fines and fees for over half of its operating money. Our law enforcement and other executive agencies deserve a fully funded budget that is not relying on an inconsistent and difficult to extract revenue source. The problem has gotten so severe that, at least in some counties, it actually costs more to collect the money than its worth, meaning this funding method is an operating loss.
Unreasonable Fines & Fees Create More Crime
However, the effect on our agency budgets is not the only way that law enforcement is affected by fines and fees. In order to fund their own existence - police officers are forced to act as debt collectors which effectively diverts resources from more important public safety actions. For instance, jurisdictions that rely on fines and fees for funding also solve less crime, most likely due to decreased budgets and manpower dedicated to that task.
The effect on police is just the tip of the crime iceberg. The fact of the matter is that court ordered fines and fees are a substantial burden. One estimate puts the amount of court ordered debt in Oklahoma since 2012 at nearly $700 million. These fines and fees are piled onto one of the least wealthy population segments in our State - and forces individuals to make difficult choices between crime and the ability to pay their debt. In Oklahoma County, those who had their fines and fees waived were significantly less likely to be charged with a new offense and also had a lower rate of new criminal convictions. Finally, the nonpayment of fines and fees leads to higher incarceration. One study found around 20% of all those who are behind in their payments are incarcerated specifically due to their nonpayment.
Ultimately, fines and fees serve as a disincentive to legitimate work. Many individuals turn to the black market in order to pay off their fines and fees instead of facing potential garnishment of wages or other official actions surrounding legitimate work. Forcing individuals towards the black market and increasing their overall debt load is counterproductive to public safety - meanwhile fines and fees collection ensures that police officers have both less resources and less time to confront serious crimes.
Taxation Without Representation
Court ordered fees are essentially a tax placed on the lowest earners in our State. This sort of “user tax” is similar to a subscription service such as Netflix where the individual who is using the service pays a fee in order to have access to the service. However, this sort of “Netflix” funding model makes little sense in the criminal legal context. All Oklahomans theoretically benefit from the Criminal Justice System in the form of increased public safety - not just the individuals who are “using” it. Forcing defendants to bear the burden of paying for a system that prosecutes them also creates a perverse incentive between judges, prosecutors and law enforcement. When the system stands to benefit financially from every prosecution, how could the public ever believe that the system is just? Tulsa County DA Steve Kunzweiler said “[t]he idea that a DA has to be collecting fees on the backs of the people they’re prosecuting is simply immoral.”
Fines and fees assessment and collection, like the rest of the criminal justice system, is concentrated in the most vulnerable communities in the state. For example, municipal governments with higher black populations rely more heavily on fines and fees for revenue. The presence of black city council members significantly reduces—though does not eliminate—this pattern. Studies consistently show that contact with the criminal justice system decreases democratic participation. Leading one researcher to argue “the fact that fines and fees are often implemented in a racially biased fashion may help explain why turnout is lower among poor minority voters.”
Race is not the only dividing line. Fines and fees assessments are consistently higher in rural counties as well which cripples rural economies that are inherently less flexible. In Oklahoma, the top 8 most impoverished counties are classified as rural. While rural Oklahomans have much lower access to quality jobs. Fines and fees also mean that rural communities are facing a disproportionate tax to keep a system running whose benefits are felt most acutely in urban communities.
Individuals who are caught up in the criminal justice system are taxed to fund a system that exists for the benefit of all Oklahomans. These same individuals are less likely to vote and obtain adequate political representation because of the barriers that criminal justice contact and excessive fines and fees create. These factors coexist leading to a whole class of individuals who are taxed without being represented in direct contradiction to the core tenets of this Nation.
Oklahoma Solutions
2022
Last year, the Oklahoma legislature made several changes to the way in which we enforce and collect fines and fees. The first, HB3205, was signed into law by the Governor in May of 2022. This law changed the way we enforce fines and fees on juveniles by removing the requirement that a parent or guardian pay for a court appointed lawyer under certain circumstances, and removing some probation fees for youthful offenders.
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Another important bill in the fight against excessive fines and fees was HB3925. This bill, which is now law, allowed county sheriffs to contract out to private groups to collect fines and fees after a failure to pay warrant has been issued. The law allows the warrant to be cleared after a down payment of $100 and the establishment of a payment plan. In this way, police are allowed to focus on stopping crime instead of being debt collectors while also removing the threat of rising incarceration based solely on inability to pay. Finally, if a sentence handed out by a Court has a fine or fee attached - the defendant must, under oath, fill out a form with information related to their ability to pay. This will ensure that we aren’t assessing burdensome fines and fees on individuals who cannot afford to pay them.
2023
This session presents an amazing opportunity to continue reducing the burden of fines and fees and all the problems that it causes. HB1777, also known as the FAIR Act, sponsored by Representative Danny Williams and Senator Roger Thompson would eliminate approximately $9 million dollars in executive fees. Meanwhile, HB2259 builds off of the gains of last year by expanding the use of private fines and fees collectors and clarifying the rights of criminal defendants. Simply by eliminating some of these fees, Oklahoma can simultaneously lighten the burden on already struggling individuals with criminal justice contact while also ensuring that executive agencies, including law enforcement, are adequately funded to serve their purposes.
