Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU

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MONEY or How fees and fines have contributed JUSTICE? to deep distrust of the courts – and what chief judges are doing about it Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU

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DUKE LAW DEAN DAVID F. LEVI RECENTLY CONVENED A ROUNDTABLE DISCUSSION among leaders of a national task force that aims to study and address the courts’ role in the problems described by the Department of Justice’s Ferguson report. While the report focused on Ferguson, it’s clear that similar problems plague courts and communities across the country. At the heart of the challenge: a system of fees and fines that disproportionately punishes minority and low-income communities and feeds public mistrust of the justice system, but that also provides critical funding to the courts and often other state programs. A lightly edited transcript of the conversation follows.

DAVID LEVI: In March 2015, follow- Administrators (COSCA) serving on the the ACLU. Our advisory committee has ing the events in Ferguson, Missouri, the task force. I’m the co-chair along with about 20 people from different interest Department of Justice issued a report that Laurie Dudgeon, the court administrator groups, all coming together to identify surprised many of us because of its harsh from Kentucky. We’re focused on the issues problems and solutions and best practices. assessment of the lower state courts as a that came to light with Ferguson, with We intend for this to be as broad reaching revenue collection agency for local govern- regard to inappropriate usage of fees and as possible, but we’re not going to be able ment bodies and officials, rather than a fines, and the philosophy behind how fees to address specific issues in specific courts neutral, independent provider of justice. and fines and even bail should be estab- in specific municipalities or decisions that According to the report, overly aggressive lished when it comes to misdemeanors, in are being made. We’ll give the tools, and collection of fees and fines from poor and particular, in the criminal justice system or with training and support the objective is minority communities was creating a desti- traffic-system courts. As we began work on to have people that are in these positions of tution pipeline, sending many residents the issue, it soon became apparent that this authority to turn the system around. into a downward spiral of debt, frustration, is not just a problem in Ferguson, Missouri. and often jail time for minor infractions. It’s something that has permeated nationally LEVI: Are you building toward a report? The report sparked self-examination in our courts. One of the first challenges among courts throughout the country. In we have had is identifying exactly what O’CONNOR: We do have guidelines February 2016, the Conference of Chief systems are involved. It’s been an extremely we’ve placed upon ourselves as far as a Judges and the Conference of State Court cumbersome process to try to identify which schedule. Initially we planned to have a Administrators launched the National Task systems are in place in all the different work product completed in two years. I Force on Fines, Fees, and Bail Practices. states, different counties, and different don’t know if that’s a legitimate time table With support from the National Center for municipalities. Given that recognition, this right now, or if we can do it more quickly. State Courts, the task force is examining the task force is looking for broad, general steps, There are working groups within the task impact of fees and fines on disadvantaged best practices, policies, etc., with specific force, and they all have specific areas they communities nationwide. We are fortunate examples that can be shared with all courts, are working on with deliverables that will to have some of the leaders of this task force however they are formulated and whoever meet certain time schedules we’ve set up with us today to discuss their work. the appointing authority may be, so that internally. How well that goes will dictate O’Connor, you are chair of they may have this information available when this project will be completed. the task force that is working on this issue. for training and implementation and for Can you tell us what you’ve been doing making sure that what is happening now MARY MCQUEEN: We consider it to since inception and where you are focusing in so many instances, which is essentially be a two-phased project. Right now we’re your efforts? an established system of spiraling downward in Phase I, gathering information, model debt for our citizens, is curtailed. rules, sanctions details. Then there will MAUREEN O’CONNOR: Yes. We have We have put together working groups be a pilot phase, where we reach out and members from the Conference of Chief with a wide array of membership, includ- solicit people to implement and try some Justices and the Conference of State Court ing representatives from the DOJ and of the alternatives and assess their efficacy.

MODERATOR PANELISTS DAVID F. PATRICIA NATHAN LEVI BRECKENRIDGE HECHT

DEAN, CHIEF JUSTICE, CHIEF JUSTICE, DUKE LAW SUPREME COURT SUPREME COURT SCHOOL OF MISSOURI OF Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU

JUDICATURE 45

LEVI: It’s a very ambitious effort. that are collected in these cases. But we do. IN MANY INSTANCES Texas has a little more than 2,000 judges O’CONNOR: It’s a problem that demands who handle these cases. In the last year OVER THE YEARS, that. It’s gone on for a very long period of — all these numbers are for the last fiscal THE PHILOSOPHY time. It’s become ingrained in our system. I year — they disposed of 7.3 million cases, would never point the finger and say there are which interestingly is down 10 percent HAS EVOLVED intentional actions that have created these from the previous year. Nobody knows THAT COURTS ARE negative consequences that we are seeing. exactly why. It’s not likely because people TO BE REVENUE I think it’s a misunderstanding, and it’s an are committing fewer crimes, but whether attempt by non-judicial officers in many it’s that there’s been less enforcement or CENTERS TO FUND cases — and by that I mean elected officials some change in budgetary policy is hard THEMSELVES AND in many jurisdictions — to look to the courts to tell. But of those cases, in about a third to be revenue centers. And that seems to of the cases the fine is paid before there’s OTHER AREAS OF be the problem. It’s not enough that courts a court appearance, and about a sixth are “GOVERNMENTAL are expected to support themselves. In many dismissed before a court appearance. So instances over the years, the philosophy that leaves about half where there are OPERATIONS. has evolved that courts are to be revenue convictions, pleas, deferred adjudication I THINK THAT IS centers to fund themselves and other areas for some sort of compliance program, and of governmental operations. I think that is other kinds of resolutions. Interestingly, ONE OF THE CORE one of the core problems that we have in in less than half of one percent are the PROBLEMS THAT WE this area. It’s not only in the education of defendants acquitted. Of the half in which HAVE IN THIS AREA. the judicial officers who are involved in the there are convictions, pleas, or some other system but it’s an education and change of adjudication, only about two percent mindset that has to be adopted by mayors involve satisfaction of the fines by commu- – Chief Justice and city councils and county commissions nity service. So while this is an option that Maureen O’Connor and the folks that set the budget for our is often discussed, it’s not usually employed governmental institutions. by the courts. One of the things the task force is going to do is look at why that is LEVI: Chief Justice Hecht: I’ve heard you and whether it can be improved. Nineteen talk about the huge amount of money that percent of cases get jail credit, which is is collected by the state of Texas in these also part of what we’re focusing on. In only petty offenses and misdemeanors. I’m one percent of cases is the fine waived for wondering whether there’s been any further indigency, and an arrest warrant is issued thinking about the revenue side and how in 21 percent of the cases. So there’s a lot of you would get on top of that. concern about the use of incarceration as an alternative to the imposition of fines. NATHAN HECHT: It’s a very complex Now the money: You asked about size of matter, as Maureen says. It is national in revenue. In Texas the fines and fees are more scope and has been going on in our courts than $1 billion a year. Eighty-five percent for a long time. There are lots of differ- is paid within 30 days, so that part is fairly ences. We have some pretty good numbers regular. Two thirds goes to the local govern- in Texas about some things. Some states ment that collects it, and a third goes to the don’t even get reports on the fines and fees state. The total fees and fines waived by the 4

MARTIN MARY MAUREEN HOSHINO MCQUEEN O’CONNOR

ADMINISTRATIVE PRESIDENT, CHIEF JUSTICE, DIRECTOR, NATIONAL SUPREME COURT JUDICIAL CENTER FOR OF OHIO COUNCIL OF STATE COURTS CALIFORNIA Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU

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courts, as opposed to just dismissing the that attend the problem are very difficult to WHEN A case, is only about $6.3 million, or about estimate. When a defendant who can’t pay DEFENDANT two-thirds of one percent, so there are not is incarcerated, he often loses his job. That WHO CAN’T PAY IS many cases in which fines are waived. puts a strain on his family. He may become Texas has a collection improve- unable to work or to be as productive as he INCARCERATED, ment program that was enacted by the was before. There may be health problems HE OFTEN LOSES Legislature in 2011. It’s administered by associated with it. The point is there are the State Office of Court Administration. more costs associated with it than just how HIS JOB. THAT We have amended the rules that govern many fines you did or didn’t collect. PUTS A STRAIN that program in the last few months — “we” meaning the judicial council that’s LEVI: Those are excellent points. It is a ON HIS FAMILY. the policymaking arm for the judiciary. hard calculation to make even just looking HE MAY BECOME The council amended the rules to allow at the revenue and without taking into “UNABLE TO WORK trial courts more discretion in imposing consideration other social and individual fines and alternatives, and to require indi- costs that may not be monetary. OR TO BE AS gency determinations, which had not been PRODUCTIVE AS required in the past. Those are some efforts MCQUEEN: I think there’s more avail- that we’re making and of course that the able on the jail costs than there has been HE WAS BEFORE. task force will be looking into. on the social and economic costs. One of THERE MAY BE the things we hope to do is come up with O’CONNOR: The indigency requirement a tool for quantifying these things; that HEALTH PROBLEMS that Justice Hecht referenced is one of the becomes important as you said when you ASSOCIATED WITH universal concepts that the task force will go to the local government leadership emphasize with all courts. The Bearden deci- to try to talk about how you change the IT. THE POINT IS sion from the Supreme Court system. And 19 percent is pretty good, THERE ARE MORE requires the determination of indigency and Chief, because as I recall from census ability to pay, and if it’s not there, you look figures about 20 percent of the nation’s COSTS ASSOCIATED at an alternative rather than forcing a mone- population falls in the poverty range. But WITH IT THAN JUST tary sanction on someone who just can’t pay. we don’t know what that number is of the HOW MANY FINES That starts the whole process. uncollected fines and fees. YOU DID OR DIDN’T LEVI: What do you suppose the process LEVI: I was chair of an ABA committee this COLLECT. will be for shifting the dependency of past year and one of the themes we heard municipalities and counties on this reve- from judges around the country was they nue? Court funding and funding for other were required by state law — and I think – Chief Justice kinds of public services is so stretched an underlying federal law — to suspend Nathan Hecht right now. Is there an approach states driver’s licenses in a whole range of cases should take, or something that members that didn’t have anything to do with driv- of the bar can help with? I can imagine if ing, so that a failure to pay child support, Chief Justice Hecht were to go to the Texas for example, would result in a suspended Legislature and say he’s trying to imple- driver’s license. And then it would have the ment a program that might cost the state same consequence that Justice Hecht was $1 billion, there might be some pushback. just talking about, with the person losing his job and then there wouldn’t be any child HECHT: There are two things here. One support anyway. Is that topic within the is we don’t have a very good idea what scope of the task force’s work as well? the loss would be if you came up with an alternative punishment for every indigent. O’CONNOR: That is one of the subjects For instance, I said 19 percent of our cases we’ll be addressing. There’s just a plethora have jail credit. We don’t know if almost of fines, and fees attached to fines, put forth all of those are people who could have paid by state legislators. It happens repeatedly the fine and chose not to, or if they truly in Ohio. They will use the criminal case, couldn’t pay. So we need to really look at and they’ll kind of treat it like a Christmas how much revenue is at stake. The second tree. The fines are like ornaments, and part of it is the economic and social costs they’ll hang $10 here and $15 here, etc., Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU

JUDICATURE 47 etc., and then sometimes they put language structure of the court system. To give you divisions. For example, municipal divi- in the legislation that those fees cannot be a history lesson, in the late ’70s, Missouri’s sions have to be open and accessible to the waived. In other words, they tie the hands constitution was amended to make munic- public, and clerks must be available during of the judges when imposing that. That’s ipal courts divisions of the circuit courts. business hours. We are also developing a whole area for legal exploration here, Our constitution was also changed to give notice of rights and templates for web the legitimacy of the legislature directing presiding judges of the circuit courts and pages that will provide the public with another branch of government, the judicial the supreme court supervisory authority essential information. branch, on whether or not these kinds of over the municipal divisions. However, As I said, a significant problem is things can be mandated in a sentencing, municipal judges and court staff, as well as that there are 81 municipal divisions in when the sentencing is the responsibility of municipal facilities, are controlled and paid St. Louis County. We are providing two the court. It remains to be decided, at least for by municipalities. Due to this arrange- monitors to assist the presiding judge of in Ohio. But that becomes a real problem, ment, historically, municipal divisions St. Louis County in supervision of those where the fees associated with the sanction acted autonomously. In fact, at the time of divisions. We’re also working with nine are totally unrelated to the criminal or the events of Ferguson, there was no master municipalities that are voluntarily consoli- quasi-criminal activity. You may also have, list of the number of municipal divisions, dating their court services. as we have in Ohio, a situation where if you where they existed, or who the judges were. We appointed a task force to study racial were convicted of even a low-level felony We had to change our culture — alter this and ethnic fairness in the judicial system and drug offense, you would lose your driving mindset. We declared, very publicly, that the practice of law. While we are currently privileges. One has nothing to do with the municipal divisions are a part of our circuit providing bias education to municipal, trial, other, it doesn’t mean you were using your courts and everyone in the court system is and appellate judges, we expect that commis- car to facilitate your using the drugs. That entitled to be treated respectfully and have sion to recommend continuous training was a mandatory. They had the driver’s their cases decided according to the law, on bias and cultural competency for all license suspended. What good does that do and that we were committed to ensuring attorneys and court personnel. when you have someone put on probation, that happens in every municipal division. By attending national meetings, I’ve they’re expected to improve themselves Secondly, we exercised our supervisory learned the issues are much broader. while on probation, to make progress, and authority by transferring all pending cases Pretrial incarceration, bail practices, collec- you take their driver’s license away from from the existing municipal division in tion of fines, fees, and costs, and even the them? You know, if you just think of any Ferguson to a newly created municipal issue of private probation providers have of us; if we didn’t have the ability to drive, division in the St. Louis County circuit broader implications than municipal divi- could we do our jobs? That answers itself. court. An appellate judge was assigned as sions. Other practices of our courts must judge of the new division. We also sent be examined. HECHT: I’d add too, that when you in staff from the office of our state court We’re finding it is difficult to change wonder about what the ramifications of administrator. The Ferguson court was not cultures. There is an attitude that while this are going to be, the criticism and the the only problem. There were 81 municipal these divisions may be in the spotlight objections to the status quo have come as divisions in St. Louis County, and a signif- right now, we’ll lose interest and go away. much from the political right, the conser- icant number of those municipal divisions vatives, as they have from the political had the same problems. LEVI: Do you have data that show where left, the liberals. In fact, some of the most There were studies by local groups you’re successful and where you are not? outspoken criticism of the current system and national experts, and we received in Texas has come from very well-recog- recommendations from many sources. In BRECKENRIDGE: Another problem for nized conservative lawmakers and groups. reviewing all of these, we really came to the Missouri is the lack of a uniform municipal conclusion that it was not inadequacies in case-management system. There are multi- LEVI: So the possibility for collabora- the law. It was a matter of personnel. Judges ple vendors for software, and some courts tion is here. Should we shift to Missouri? and court staff weren’t following the law, have none at all. It is not a great system. Chief Justice Breckenridge, you probably whether from ignorance or unwillingness. Although municipal divisions are required usually get the questions first! Of course, We took a two-pronged approach. to report to our state courts administra- Ferguson was an important watershed We amended our supreme court rules to tor the number and nature of their cases, moment and maybe brings us to this point. expressly compel a judge to consider a we don’t have all the data we need. Our I know you’ve been working extremely defendant’s ability to pay when enforcing court automation committee has set as hard, so maybe you could just talk for a few a judgment. We established a permanent its highest priority the development of a minutes about how the state of Missouri committee on practice and procedures municipal case-management system that can has reacted and your role. in the municipal divisions whose work be utilized statewide so there’s uniformity mirrors that of this task force. One of our and transparency, with features to provide PATRICIA BRECKENRIDGE: Thank highest priorities is development of manda- remote access for indigency determina- you. The first thing we did was look at the tory operating standards for all municipal tions, assignment of payment schedules, 4 Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU

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referrals to community service, and text of how it is they are actually distributed THERE WERE messaging of hearing and payment dates. throughout government operations. I think STUDIES BY folks are learning that courts are only one LOCAL GROUPS LEVI: That’s very helpful. Director of the operations that benefits from the Hoshino, can you give us the perspective collection and distribution of these fees. AND NATIONAL of COSCA and the courts administrators When it comes to California, I think our EXPERTS, AND on these very difficult issues? view is quite similar to what you’ve already heard. I think we see it as an issue of equity WE RECEIVED MARTIN HOSHINO: Certainly. I will also and fairness, combined with big public policy RECOMMENDA- try to offer a little of the California perspec- questions on how we fund vital governmental tive. In terms of starting with COSCA, I can services. In California we are revisiting the TIONS FROM tell you most of my colleagues approach this rationale for why fines and fees were levied MANY SOURCES. IN in a very similar fashion, in that we really and even asking the question of whether “REVIEWING ALL OF look to the judges and justices with respect they are still accomplishing their original to the questions and issues of equity and purpose. We’re in the same position, so if THESE, WE REALLY fairness that are operating in this particular I were to mirror Chief Hecht’s description CAME TO THE situation. We talk a lot about how it is that of Texas and apply it to California, we have we support them while weighing in on the that offender fee-based system of revenue CONCLUSION THAT policy and doing a lot of the research. One that we rely on. We collect $2 billion a IT WAS NOT of the perspectives we’re able to provide is year and distribute 40 percent of that to on the operational impacts of the changes local government programs and 60 percent INADEQUACIES we contemplate here. And given that we are to state government programs. Of that IN THE LAW. in position to support or directly imple- 60 percent, two thirds of that goes to our ment some of the changes, we provide that court operations. We also have the same IT WAS A MATTER particular perspective on what the chal- features that you heard of earlier, which OF PERSONNEL. lenges or obstacles or solutions might be. includes a very complex system of fines and I think I can speak for the majority of my fees, as well as a ticket and citation situation JUDGES AND colleagues in saying that one of our major where they are higher than ever. Our system COURT STAFF roles is to always have a holistic operational has evolved over 10, 20, 30 years where WEREN’T view of what is happening in the system original base fines and fees have had add-ons as we grapple with these issues, and one of and penalties and an enormous array of FOLLOWING the great worries that we collectively have different things, where we now fund lots of THE LAW, is being able to solve these issues without programs and some of them aren’t always creating new ones. connected or have a nexus with the original WHETHER FROM Every court administrator is sensitive and behavior. We can have money attached to IGNORANCE OR realistic that this is an era where we operate a red-light infraction that would actually with finite, scarce public resources. And fund a fish and game operation. We also UNWILLINGNESS. because funding is intimately tied to this have seen cuts to our court budgets in particular subject, we worry that solutions recent years, which puts more pressure on – Chief Justice that could result in reductions in one area fees and fines assessments to make up for that Patricia Breckenridge may have consequences for access and fairness difference, and this may have inadvertently in other areas and things courts do. So we caused some practices in our courts such as focus a lot not just on the intricate impacts prepaying a fine before you can challenge of some of these decisions but also we’re your infraction. We also have a factor here always focused on the funding formulas and in California where our great recession has what the system-wide impacts can be. increased our poverty rate. My role on the task force is to provide As these conditions coalesce, it creates this that perspective. I’m the co-chair with ability to see that there may be some dispro- Chief Justice Hecht on the transparency, portionate level of fines and fees and punish- fairness, and structural-reform working ments occurring in our system. It certainly group. The heart of our effort is to identify makes the issue of the ability to pay or the practices in the fine and fees area and really inability to pay that much more pronounced getting to this notion of how fines and fees or visible in that we have a condition where are actually set, how they’re collected, how the poor are essentially getting poorer. This they’re waived, reported on, even in terms leads us back to questions of public policy, Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU

JUDICATURE 49 fiscal policy, public safety — policies that are appropriate fashion and without the use of now being revisited. excessive force. I’m wondering where you OUR SYSTEM HAS California’s Chief Justice Tani Cantil- see your role in this contemporary debate. EVOLVED OVER Sakauye made a rule change last year 10, 20, 30 YEARS essentially abolishing the prepayment BRECKENRIDGE: One of the real areas of practice, so that you do not have to pay concern in the St. Louis area and Missouri WHERE ORIGINAL your fine before you can be heard. There is that the public does not see a distinc- BASE FINES AND are more court rule changes on the way tion between police and the courts. That is that are very similar to what Chief Justice caused, in part, by the fact that our munic- FEES HAVE HAD Breckenridge described, rules regarding ipal courts are often in the same building ADD-ONS AND noticing, procedures, evaluations of abil- as police departments. There are municipal ity to pay. We have some courts that have phone systems where the public must call PENALTIES AND AN placed moratoriums on driver’s license the police department to reach the court. ENORMOUS ARRAY suspensions, to give more time to review Many persons don’t recognize there are OF DIFFERENT our practices and examine the effects. We three branches of government, and that the“ are implementing an amnesty program municipal courts are part of the judicial THINGS, WHERE to provide temporary relief to people who branch, not part of the executive branch like WE NOW FUND have been unable to pay escalating fines the police. To counter that, we are requiring and fees. Our Chief launched a Futures a separation of the courts from the police. LOTS OF PROGRAMS Commission about 18 months ago to There must be this change so that people in AND SOME OF THEM examine an array of issues that are import- the system, as well as the public, make that ant to the future of California, and this is distinction and understand the role of the AREN’T ALWAYS now one of the issues they are discussing courts versus that of the police. CONNECTED OR in a systemic fashion. Because this is a three-branch problem that requires a O’CONNOR: I’d like to just add to that. HAVE A NEXUS three-branch solution, we are also having When the mandates come out from the city WITH THE regular conversations with our Legislature fathers and mothers to fatten the coffers, and Governor about this system by which the two places they usually go to are the ORIGINAL we are funding so many of our govern- police and the courts. The police issue the BEHAVIOR. ment operations, and which has pushed tickets and touch the misdemeanor, for WE CAN HAVE our courts into becoming revenue centers. want of a better word, that brings someone to court, and so it is looked at as a tandem MONEY ATTACHED LEVI: Thank you. You all are working so operation. The police often incorrectly are TO A RED-LIGHT hard on this, and it is so commendable of urged to ratchet up their ticketing when you. These are tough questions. It seems revenue is needed, or there are quotas or INFRACTION THAT fitting and proper for our judicial leaders to some other measure of their success that WOULD ACTUALLY become involved in the fees and fines area is tied to the number of citations they given the important role that the courts hand out or the number of defendants they FUND A FISH AND play in administering the system. And it generate, and that in turn corresponds to GAME OPERATION. is understandable for the chief justices and the volume of the work that the court does. the courts to get very involved, and to say I can see how it is viewed that they work they do not want to see the courts used this together. You can’t stop one without the – Martin Hoshino, way and they don’t want to see the court’s other, you can’t correct one without the Judicial Council of California relationship with the public compromised other. You have to be able to say that the in this way. What about some of the police aren’t revenue generators either. We other issues that affect minority and poor have them for public safety and protection, communities, such as the police use of not revenue generation. And that’s a whole deadly force. Are these issues that the Chief philosophical discussion to be had as well. Justices will or should address? The courts Every police officer has a certain amount obviously don’t run the police departments, of discretion in the way they do their job, and yet they are very affected by the way in and can decide whether to issue a warning which police officers behave on the streets: or a citation, but when there’s a command A trial judge wouldn’t want to issue a from on high that you have to beef up your search or arrest warrant without a degree of citations because revenue is down — that’s confidence that it would be executed in an pressure, and it’s often responded to in 4 Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU

50 VOL. 100 NO. 4 a way that infringes on the rights and the officer had to be right there observing the we didn’t have data. Once we were collect- stability of the community. And I think same thing the camera was observing. ing data, the complaints dramatically, that was evidenced in Ferguson, but it’s dramatically decreased. also happening all over the place and that’s BRECKENRIDGE: A recent decision of extremely troubling. the Missouri Supreme Court held uncon- BRECKENRIDGE: Missouri has been On the flipside of that, with the amount stitutional a statutory presumption that collecting racial data on traffic stops for a of cameras, phone cameras, and recordings the owner of a vehicle was the driver at the number of years. that the public does with police officers, time of the charged red-light violation. sometimes you have a situation where the The opinion suggested, however, that if O’CONNOR: That’s great. Maybe that police won’t act. They may prefer to sit in a red-light camera takes a photograph of has changed now to be more universal. their cruiser and patrol and avoid a situ- a driver, the photograph could be used at ation that may escalate and put them on trial to prove the identity of the driver. LEVI: Why don’t we go around to each the wrong end of a lawsuit. So there is that one of you to get your concluding reflec- element to explain in some communities, O’CONNOR: We had a provision that if tions? Perhaps you could identify one the decrease in the citations and revenue that you were the owner and not the driver you change you’d like to make to move the was generated. There’s not one explanation could contest it, but you had to identify needle on this fees and fines problem. out there, but each one of them presents an who was driving. opportunity to train and enhance education O’CONNOR: If I could have one thing, that we’re supposed to be giving citizens. LEVI: What do you think of the problem I’d like to see a uniform mindset between of racial bias in police departments? We’ve the legislature and the courts as to the HECHT: The reduction in citations also got tens of thousands of police departments importance of treating everybody fairly, the raises the issue of whether that has had a in this country, and it’s very hard to get a consequences of the system we have now, corresponding effect on safety, and whether lot of national leadership on this, there’s so the recognition that those consequences are the public is less safe because there are much variation clearly. But is there a role undesirable and in fact are harmful to our fewer citations. There might be a way to for the chief justices in dealing with this? communities and our states and ultimately get a handle on that by looking at insur- Because it is part of the picture here. our country, and I would like that kind of ance claims or something related. If there in-depth insight to be embraced. That’s a has been a detrimental effect on safety, it BRECKENRIDGE: I think there can be. very hard task. hasn’t gotten the attention of commenters. Judges have an ability to convene stake- And that raises the question about how holders to discuss important issues regard- HECHT: I’d like to see some very explicit much of this is necessitated by safety and less of whether they have the authority to practical direction for the trial judges how much is revenue generation. direct the participants’ behavior. Merely on how to do this. From talking with a meeting and discussing problems can lead number of their leaders in our state, they O’CONNOR: There’s another element to collaborative solutions. In Missouri, our really want to do the right thing, but they that’s been introduced in Ohio and that is first focus has been to make sure the courts’ don’t have the resources and just don’t the street cameras and red-light cameras. business is in order. But you’re absolutely know a lot of the time what to do; they’re They’ve generated an extremely large right. This is a complex problem that is just doing what’s been done before. If we amount of revenue. The tickets are very going to require system-wide change. can give some guidance to them I think it expensive, I think anywhere from $100 probably would have a big effect. to $150, and a portion of that went to a O’CONNOR: When I was lieutenant private company that installed and main- governor of Ohio, in the late 1990s, I was BRECKENRIDGE: I have two suggestions. tained the cameras; there was no police also director of public safety, which gave First, trial judges need to understand the involvement in observing the speeding and me the opportunity to convene a task force difference between a willful failure to pay or red-light violations. It was put forth on this with a work group of police, high- and an inability to pay. There is a recog- as a safety measure with the idea that if way patrol, and various other groups, and nition of this in child support collection, there’s a sign that says there’s a camera up one of the ways we dealt with this was to but there seems to be a disconnect with the ahead, people won’t run the red light or change the citation form for traffic citations, collection of fines and fees. Secondly, there stop signs, and there was documentation where there was a racial component, taken needs to be a true understanding that the for that effect on public safety, and there from the driver’s license, which meant those purpose of bail is to protect public safety was some success in terms of improving statistics were kept. And once that happened and to prevent a flight risk. Pretrial incar- safety. But the outcry against these cameras there was a knowledge among police officers ceration should not occur solely because of went out, and now our municipalities do that someone was reviewing that informa- an inability to pay a cash bond. not have them. Our court actually issued a tion on who they were citing. And there decision that made it much more difficult was a very big change. We had a suspicion HOSHINO: It’s really hard to pick. I’m in for them to exist because they said a police before we did this; we had complaints, but the camp with Chief Justice Breckenridge, Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU

JUDICATURE NATIONAL TASK FORCE ON FINES, 51 and to connect with one thing she said, I FEES, & BAIL PRACTICES think if we had a mechanism that stream- CO-CHAIRS lined and accurately helped the courts MAUREEN O’CONNOR LAURIE DUDGEON address the ability to pay, it would really Chief Justice, Administrative Director, Kentucky move the needle. I would also like to see a Administrative Office of the Courts true expansion of the alternatives that folks MEMBERS can have in order to satisfy their obligations in the form of community service or what- RONALD B. ADRINE SCOTT C. GRIFFITH RICK JONES Administrative and Presiding Judge, Director of Research and Court First Vice President, National Associa- ever the alternatives are. It’s talked about an Cleveland Municipal Court, Ohio Services, Texas Office of Court tion of Criminal Defense Lawyers awful lot, but I don’t think there actually Administration are a lot of options out there that are avail- MICHAEL P. BOGGS DAVID LABAHN Judge, Court of Appeals of Georgia JOHN A. HALLACY President and CEO, National Associa- able and presented to judges so that judges Judge, 37th Circuit Court, tion of Prosecuting Attorneys will have more tools and more choices when PATRICIA Michigan ARTHUR W. PEPIN they are imposing these fines and fees. BRECKENRIDGE Chief Justice, Supreme Court of ALEXES HARRIS Director, New Mexico Administrative Missouri Associate Professor of Sociology, Office of the Courts LEVI: Mary, you are an extraordinary force University of Washington DAVID V. BREWER for law reform and have a guiding hand in Justice, State NATHAN L. HECHT Chief Justice, the work of this task force. What conclud- Justice Institute Board Chief Justice, Supreme Court of New Jersey ing thoughts would you offer? KATHLEEN M. DUMAIS RONALD S. SULLIVAN, JR. Democrat, District 15, ELIZABETH P. HINES Harvard Law School District Judge, 15th District Court; MCQUEEN: While very few citizens will Montgomery County, Maryland KAREN TOKARZ Ann Arbor American Judges Associa- ever become parties to a lawsuit or appear Charles Nagel Professor Public EZEKIEL EDWARDS tion, Michigan as defendants in the state courts, most of us Director, Criminal Law Reform Project, Interest Law & Service, Washington have personally been or know someone who American Civil Liberties Union MARTIN HOSHINO University School of Law Administrative Director, has been cited for traffic violations that can JO-ANN WALLACE ROSALYN W. FRIERSON Judicial Council of California result in jail time if legal financial sanctions Director, South Carolina Court President & CEO, are not met. Using financial sanctions as Administration National Legal Aid & Defender Association an alternative to incarceration for these low-level offenses is public policy that EX OFFICIO touches on all three branches of our govern- KIM BALL JONATHAN D. MATTIELLO Senior Policy Advisor, Adjudication, Executive Director, State Justice ment — legislative, executive and judicial. U.S. Department of Justice Institute But it falls to the judicial branch of govern- ment — specifically our courts — to ensure LISA FOSTER MARY C. MCQUEEN Director, Office for Access to Justice, President, National Center for that monetary sanctions are not dispropor- U.S. Department of Justice State Courts tionately applied. The task force embraces that responsibility. Their work will provide LIAISONS courts with tools, resources, model statutes, SOLEDAD A. MCGRATH ROBERT O. SAUNOOKE JOANNA WEISS and policies to give force to their promise Program Officer, Justice Reform, Director, National Native Director of Criminal Justice, that “courts are not revenue centers.” John D. & Catherine T. MacArthur American Bar Association; Laura and John Arnold Foundation Foundation Saunooke Law Firm PA H. THOMAS “TOMMY” WELLS JR. LEVI: Thank you all so very much. We are CARL REYNOLDS ZOË TOWNS Past President, American Bar very fortunate to have judges and adminis- Senior Legal & Policy Advisor, Manager, State Policy, Public Association; Maynard Cooper & Gale Council of State Governments Safety Performance Project, trators like you working on these important Justice Center The Pew Charitable Trusts issues. As a former federal judge, perhaps I have a bit of credibility when I say that NCSC LEAD COUNSEL our Chief Justices are KONSTANTINA VAGENAS GREG HURLEY DEBORAH SMITH among the great judicial leaders of our time. Project Director; Director and Chief Knowledge and Information Services Knowledge and Information Services Thank you for participating today and for Counsel, Access to Justice Initiatives, Senior Analyst, National Center for Senior Analyst, National Center for National Center for State Courts State Courts State Courts the work of this task force. AMY MCDOWELL NORA SYDOW KEITH FISHER Education Program Manager Senior Court Management Consul- Principal Court Management Consul- National Center for State Courts tant, National Center for State Courts tant, Senior Counsel for Domestic and International Court Initiatives, National Center for State Courts For more information on the task force’s work, visit ncsc.org.