When someone finally leaves prison, we often say that their debt to society has been paid, that they can rejoin society at large, recognizing the transaction of time for crime is punishment enough. However, if the penalty for crime is time in prison, why are formerly incarcerated Americans in forty-nine states charged for their time in prison?
These fees, fines, and penalties—collectively known as legal financial obligations (LFOs)—have been called “the new debtors’ prison” by some critics. In this article, I analyze the practice of LFOs in Illinois and their implications for state efforts to reduce mass incarceration and the well-being of the state as a whole. I conclude with a policy solution to this problem.
Legal Financial Obligations
In sum, LFOs are monetary sanctions levied on criminal defendants as a result of incarceration or associated contact with the criminal justice system. These sanctions are intended in many cases to cover the costs of running a court; to pay for associated activities, like supervision or incarceration; and to serve as punishment. More specifically, LFOs can be levied to cover “programming and services provided within an institution (e.g. educational, medical, dental)” associated with incarceration, as well as mandatory treatment programs. Obligations for a public defender may also be levied, depending on various factors.
Our state’s LFO regulations mimic that of other states. Illinois, like other states (e.g., Washington), has mandatory minimum fines for certain offenses. These range from $25 for a parole violation to $750 for a first time DUI. Illinois courts can also charge interest on unpaid LFOs as well as costs for additional convictions. Fines can also be levied for the cost of imprisoning a defendant. Illinois does, however, have explicit caps on discretionary fines according to the severity of crime committed.
Legal financial obligations in our state are also irrational and inconsistent within the state, often differing widely from county to county. Although the Illinois General Assembly has passed legislation that structures LFOs, counties, municipalities, and county courts have some leeway in determining specific amounts. Mary Pattillo and Brittany Friedman at Northwestern University found that, for instance, “the fee for people convicted of a felony in Cook County is $190, but it is only $80 in Kendall County.” The pair likewise found that “‘at least 435 Illinois statutes . . . govern the assessment’” of LFOs, meaning that regulation statewide is already very complex.
The material implications of LFOs are staggering. Research from Washington State reveals how LFOs trap people in a cycle of poverty and imprisonment by exacerbating the significant hardships brought by low-wage work. In Washington, over one-quarter of state inmates were working part-time, and the earned annual income for about two-thirds of inmates was a paltry $12 thousand. It is further estimated that between 30 and 36 percent of inmates were unemployed before their arrest. These workers are often subject to low and inconsistent pay, heightening the chance of penalty for nonpayment. Penalties for nonpayment are typically monetary, determined as a percent or a function of the sum unpaid, ranging from 5 to 30 percent depending on what Illinois government division levies the fine. Depending on judicial decision, accounts can be classified as “willful nonpayment” allowing defendants to be jailed for nonpayment. Reincarceration for nonpayment has the potential of creating a vicious cycle in which a defendant is repeatedly jailed for not paying fines accumulated as a result of the last incarceration.
These forces work together to trap many low-income Americans in a cycle of poverty and imprisonment that bars them from finally escaping the criminal justice system. The conclusions from the Washington study have been replicated in Illinois. 72 percent of those surveyed report forgoing groceries to pay for LFOs; 62 percent forwent paying rent and utilities; just over one-quarter forwent child care and support. In sum, LFOs collectively impose a significant burden on the neediest Illinoisans, preventing them from fully escaping the prison-and-criminal-justice system.
Proposed Policy Solution
The judicial system in Illinois has collectively begun to study the problem of LFOs. The Access to Justice Act of 2016 created a task force dedicated to evaluating the spread and impact of LFOs. Although the recommendations of the task force—like standardizing forms across the state and building community programs to augment trust of the court system—will certainly lessen the collective burden of LFOs, I contend they do not go far enough in assisting the needy. I present some policy solutions below:
- Develop and implement more specific statewide legislation. The inconsistency of LFOs across counties heightens administrative burden, creates unequal justice across Illinois, and prevents necessary standardization. Statewide legislation need only provide more clarity on acceptable minimums and maximums to address this.
- Increase and make more effective the use of alternatives. Illinois statute already allows for the use of an alternative to pay off an LFO: community service. However, each hour of community service is currently equal to $4 in LFOs. Three-quarters of those surveyed were not informed of the community service option. I propose therefore that this alternative be expanded in two ways: by requiring that judges inform defendants of this alternative, if applicable and by scaling up the dollar-equivalence of community service hours to (at least half of) the prevailing minimum wage of the state or county—whichever is higher—so that defendants are fairly compensated for their work and are freed more quickly.
- Lower LFO caps. Current Illinois law allow judges to impose a maximum fine of $25 thousand in some cases. Given that the vast majority of defendants are indigent, many will struggle to pay off maximum fines for years. By lowering the cap, more defendants will be capable of paying off their debts.
- Increase access to counsel. Since some counties charge for use of court-appointed counsel, indigent defendants often waive such access. In order to avoid incurring more fees. I propose a statewide ban on this practice, so that the indigent defendants have better access to counsel.
A final proposal is to eliminate LFOs entirely (except for those intended to punish, such as restitution). As LFOs designed to fund the justice system rarely raise enough revenue to do so, the logic of LFOs is seemingly just to punish rather than recoup the costs of the system. Since defendants are presumably incarcerated to pay off a debt to society, doubly punishing them appears unnecessarily cruel—especially given the possible reincarceration, wage garnishment, and other punitive responses to nonpayment. A strong case exists for the elimination of nearly all forms of LFOs as a way of allowing the formerly incarcerated to finally be wholly free of the justice system.