From the Editor - Prison Legal News

Cost Shifting (cont.)
shift costs or cut them. At a minimum
we must evaluate whether cost-recovery
sanctions are achieving the stated goals
of policymakers. This article’s review of
the evidence suggests they are not.
Does Imposition Of Cost-Recovery
Sanctions Limit The Public’s
Financial Burden?
Evidence suggests they may not for
two main reasons. First, recovering monies
from people may be akin to drawing
blood from a stone. When one cannot
find a job and when one is faced with
other mandatory financial obligations,
like child support, one simply may not
have money left to pay the system’s costs.
The public savings suggested in the budget
ledgers, therefore, may never materialize.
Moreover, because cost-recovery sanctions
are often levied against the poor,
further research is needed to determine
whether payments made actually come
from other sources of public dollars –
like public benefits. Whether the public
is paying the cost of the criminal justices
system directly or indirectly, through the
transfer of public benefit dollars to pay
down criminal debt, the evidence suggests
cost-recovery sanctions do little to relieve
the public’s financial burden.
Does Imposition Of Cost-Recovery
Sanctions Limit Tax Payer Burden?
The evidence suggests tax payers, albeit
a potentially narrower slice of them, are paying
their taxes as well as the cost-recovery
sanctions that allegedly reduce their tax
burden. Individuals assessed the fees may
also be taxpayers, holding down tax-paying
jobs while on work release or under community
supervision, and still be assessed
additional costs to cover the system. Family
members of those in the system face a triple
threat – they pay taxes (that cover the cost
of the system), contribute to jail and prison
inmate accounts (that officials intercept to
cover the cost of the system), and may help
released brothers, mothers, daughters, and
fathers to repay old fees and new ones (like
probation supervision costs).
Does Imposition Of Cost-Recovery
Sanctions Ensure Crime Victims Are
Properly Compensated?
Imposition of cost-recovery sanctions
actually seems to undermine the penological
goals of the system – including crime
April 2008
victim compensation. These additional
financial burdens create competition
among victims and justice system administrators
for pieces of a small pie.
Does Imposition Of Cost-Recovery
Sanctions Allow Policy Makers To
Appear Fiscally Responsible?
This rationale for promoting costshifting
to people in the system is an
interesting one, focused on appearances
rather than sound policy. Even if appearances
were a legitimate basis for
making policy, the evidence suggests
these impositions do not reflect favorably
on policymakers. To the contrary,
cost-shifting demonstrates willingness
to place political expediency over true
fiscal responsibility which requires tough
decisions about cutting costs and raising
revenues. The ability to impose costs on
the criminal system’s captive audience
allows policymakers to avoid these hard
questions, and to avoid disappointing
those with a fiscal interest in keeping jails
and prisons full.
Does Imposition Of Cost-Recovery
Sanctions Teach Moral Lessons
And Fiscal Responsibility?
For many people leaving prison,
criminal financial obligations hang over
their heads like the Sword of Damocles,
ready to drop at any moment. High
criminal debt and low earning potential
combine to frustrate efforts to achieve
financial and social stability, and to live
up to one’s obligations to family and community
after involvement in the system.
Research in the child support context
illustrates a tipping point at which the
size of debt relative to income creates an
unwanted backlash. Studies show that
compliance with child support orders is
strongly linked to abilty to pay, and that
compliance was significantly lower when
monthly orders were more than 20 percent
of a parent’s income, than when orders
were 15 percent or less of income 101 . If
criminal financial obligations are aimed at
furthering responsibility, they cannot be
so burdensome as to make work futile.
Policymakers Must Reconsider The
Use Of Cost-Recovery Sanctions
20 dollars here, 15 dollars there -- for
a busy legislator focused on ending the fiscal
year in the black, enacting these types
of monetary sanctions may appear to be
sensible, relatively painless, financial fixes.
But as lawmakers continue to shift more
10
and more of the costs of the criminal justice
system onto those arrested, charged,
prosecuted, and incarcerated, it is critical
that they understand the entire economic
sanctions picture, and resist the current
piece-meal approach. Across the country,
both those burdened with the debt,
as well as state policymakers, probation
officers, judges, and court administrators
increasingly understand the big picture,
and are troubled by it. They are urging
reconsideration of existing cost-recovery
fees and cautioning against creation of
new ones.
Policymakers can heed their call by:
1) conducting (and regularly updating) an
inventory of all criminal fees, fines and
economic sanctions on their books; 2)
performing an impact analysis when a new
economic sanction is proposed that includes
assessment of the population most
likely to face the sanction, the amount of
sanctions already paid by that population,
and the proposal’s effect on public safety;
and 3) instituting a moratorium on new
sanctions or sanction increases until the
proper research and impact procedures are
in place. Without protections like these,
responsible decision-making in the area
of criminal economic sanctions is simply
not possible.
Endnotes
1 The author wishes to thank Nora Christenson,
a Brennan Center summer intern, and Bran
Noonan, a volunteer lawyer, for their essential
research and drafting for this article, as well as Brennan
Center colleagues Lynn Lu, for her tireless work
on all aspects of this chapter, and Chris Muller for
his always helpful review and insights. Finally, the
author thanks Rene Kathawala, Mick Peters, and
their firm, Orrick, Harrington, and Sutcliffe, LLP,
for their expert cite-checking.
2 Michigan State Senator Alan Cropsey, chair of
the Judiciary Committee and member of the Appropriations
Committee, Karen Imas & Rachel McLean,
The Council of State Governments Eastern Regional
Conference, Issue Brief, “Policymakers Discuss Practical
Solutions to Financial Obligations of People
Released from Prisons and Jails,” 1, May 2006.
3 The Honorable Judge John Andrew West of
the Court of Common Pleas in Ohio, Karen Imas &
Rachel McLean, The Council of State Governments
Eastern Regional Conference, Issue Brief, “Policymakers
Discuss Practical Solutions to Financial
Obligations of People Released from Prisons and
Jails,” 2, May 2006.
4 NAACP Legal Defense and Educational
Fund, Inc., website, http://www.naacpldf.org/content.aspx?article=524.
5 Appeals Court Decision and Opinion Va-
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