21 st Annual Liman Colloquium WHO PAYS? FINES, FEES, BAIL, AND THE COST OF COURTS Twenty-First Annual Liman Colloquium April 5 & 6, 2018 WHO PAYS? FINES, FEES, BAIL, AND THE COST OF COURTS COURTS OF THE COST AND FINES, FEES, BAIL, WHO PAYS? ©William Clift Crack, Jury Chairs, Warren County Courthouse, Warrenton, Missouri, 1974-1976 The Arthur Liman Center for Public Interest Law co-sponsored by April 2018 The Class Action Litigation Fund The Robert H. Preiskel & Leon Silverman Fund Yale Law School WHO PAYS? FINES, FEES, BAIL, AND THE COST OF COURTS The Twenty-First Annual Liman Colloquium April 5 & 6, 2018 Sponsored by The Arthur Liman Center for Public Interest Law The Class Action Litigation Fund The Robert H. Preiskel & Leon Silverman Fund Yale Law School Liman Colloquium 2018 Co-Editors Judith Resnik, Arthur Liman Professor of Law, Founding Director, Arthur Liman Center for Public Interest Law Anna VanCleave, Director, Arthur Liman Center for Public Interest Law Kristen Bell, Senior Liman Fellow in Residence Skylar Albertson, Yale Law School Class of 2018 Natalia Friedlander, Yale Law School Class of 2018 Illyana Green, Yale Law School Class of 2019 Michael Morse, Yale Law School Class of 2019 Revised April 18, 2018 i Liman Colloquium 2018 Preface In the last decades, growing numbers of people have sought to use courts, government budgets have declined, new technologies have emerged, arrest and detention rates have risen, and arguments have been leveled that private resolutions are preferable to public adjudication. Lawsuits challenge the legality of fee structures, money bail, and the imposition of fines. States have chartered task forces to propose changes, and new research has identified the effects of the current system on low-income communities and on people of color. The costs imposed through fees, surcharges, fines, and bail affect the ability of plaintiffs and defendants to seek justice and to be treated justly. This volume, prepared for the 21st Annual Arthur Liman Center Colloquium, explores the mechanisms for financing court systems and the economic challenges faced by judiciaries and by litigants. We address how constitutional democracies can meet their obligations to make justice accessible to disputants and to make fair treatment visible to the public. Our goals are to understand the dimensions of the problems, the inter- relationships among civil, criminal, and administrative processes, and the opportunities for generating the political will to bring about reform. Like the many Liman publications of the last two decades, these materials reflect the commitments of the Arthur Liman Center for Public Interest Law, which works to promote access to justice and fair treatment of individuals and groups seeking to use the legal system. This work began in 1997, when Yale Law School established what was then called the Arthur Liman Program to honor one of its most distinguished graduates. Arthur Liman spent much of his professional career at Paul, Weiss, Rifkind, Wharton & Garrison, even as he also devoted years to work in the public sector, including as counsel to the New York State Special Commission on Attica and as counsel to the Senate Iran-Contra Committee. Liman also served as president of the Legal Aid Society of New York and of Neighborhood Defender Services of Harlem, he was a trustee of the Vera Institute of Justice, chair of the New York State Capital Defender’s Office, and he was a founder of the Legal Action Center. That Arthur Liman was both wise and unusually smart marked him as an outstanding attorney. That he also cared passionately about social justice and devoted himself to its pursuit made him a great lawyer-citizen. Supported by the many family members and friends of the Liman family and Yale Law School, this Center is dedicated to ensuring that generations of public interest lawyers continue to combine expert lawyerly skills with public spiritedness. ii Liman Colloquium 2018 In 1997, we awarded one Liman Fellowship. We now award six to ten Fellowships annually. As of 2018, we have provided funding for 132 law graduates to spend a year working on behalf of individuals and communities with diverse needs. More than one hundred organizations have hosted Liman Fellows, and ninety percent of our former Fellows continue their work at nonprofits, in government, or in the academy. In addition, each year, the Center welcomes Summer Fellows, who are students enrolled at Barnard, Brown, Bryn Mawr, Harvard, Princeton, Spelman, Stanford, or Yale and who find placements, often with organizations that have employed Liman Fellows. Further, Senior Liman Fellows in Residence guide students on projects and co-teach classes. The Liman Center has also undertaken major research projects, including a series co-authored with the Association of State Correctional Administrators and focused on the use of solitary confinement in U.S. prisons. Fellows have authored monographs on a range of issues emerging from their work, such as new research on the needs of veterans, immigrants, juveniles, and families. At Yale Law School, the Liman Center teaches a workshop each spring. Illustrative is this year’s seminar, Rationing Access to Justice in Democracies, which intersects with the 2018 Colloquium. In 2017, the class, Imprisoned, focused on the law of prisons and the history of movements aiming to limit the use of confinement. In short, through funding fellowships, annual colloquia, classes, and scholarship, the Liman Center follows in Arthur Liman’s tradition by devoting our energies and resources to working towards a justice that remains elusive. *** A word about preparation of this volume is also in order. Kristen Bell, who is one of the current Senior Fellows in Residence, played an important role in shaping the materials. And, we who are the faculty and directors of the Center, have the delight of working intensely with thoughtful, committed, insightful, and knowledgeable students, and hence to enjoy the pleasure of new colleagues. The members of the 2018 Liman Workshop have been extraordinarily engaged in exploring the problems of courts and litigants. The Liman Student Directors who are this volume’s co-editors—Skylar Albertson, Natalia Friedlander, Illyana Green, and Michael Morse—were at the center of finding and editing materials that span decades and continents and that illuminate the complexities of making justice systems accessible and fair. But for their work, this volume would not exist. We are also indebted to the many participants in the 2018 Colloquium who suggested materials, of which those reproduced are just a subset. To keep these readings to a manageable length, the excerpts have been extensively pruned; most footnotes and citations have been omitted. iii Liman Colloquium 2018 Special thanks are also in order to several people at Yale Law School. The Center’s good fortune is that Elizabeth Keane, who joined recently, is remarkable. She has coordinated, with grace and patience, so much of our work. But for her, we would not have been able to bring together the group of scholars, judges, politicians, policy analysts, litigators, and students to discuss the issues set out through these readings. Bonnie Posick is now deservedly famous for her expert editorial assistance and insights into shaping accessible materials. Adrienne Webb, Program Coordinator, Public Affairs, and Janet Conroy, Director of Communications & Public Affairs at Yale Law School, bring all our publications to completion. No introduction would be complete without acknowledging the pivotal role played by the Liman Director, Anna VanCleave, who left the New Orleans Public Defenders’ Capital Defense Division two years ago to be at the helm of the Center. She mixes agility at classroom teaching with wisdom as an advisor to current, future, and former fellows, and she juggles so many tasks to run the many and growing facets of the Center. Her kindness, insights, and leadership make all that we do possible. Judith Resnik, Arthur Liman Professor of Law Founding Director, the Liman Center March 28, 2018 iv Liman Colloquium 2018 Chapters I. Fines, Fees, Bail, and the Financing of Justice: Political Will and Paths to Reform II. Understanding the Challenges Faced by Low-Income Litigants III. Bail and Bond IV. The Consequences of Legal Debt V. Legal Theories of Mandates for Change: Litigating Economic Barriers to Courts VI. Political Will and Making Change VII. Alternative Financing and Alternative Norms v Liman Colloquium 2018 Table of Contents I. Fines, Fees, Bail, and the Financing of Justice: Political Will and Paths to Reform Democracies promise “open courts” and “access to justice,” but the costs of being involved in the courts have steadily risen. In both the civil and criminal legal systems, litigants have been subjected to an array of charges. This panel opens the 2018 Liman Colloquium by exploring the central questions: Who pays for courts? And what are the paths to reform? Hon. Nathan L. Hecht, Chief Justice, Supreme Court of Texas, Address to the 85th Texas Legislature (Feb. 1, 2017) ...................................................... 1 Hon. Diane P. Wood, Chief Judge, U.S. Court of Appeals for the Seventh Circuit, Partners in Justice for All, Address Before the Texas Supreme Court Historical Society (Sept. 8, 2017) ............................................................. 4 Nat’l Task Force on Fines, Fees, and Bail Practices, Nat’l Ctr. for State Courts, PRINCIPLES ON FINES, FEES, AND BAIL PRACTICES (Dec. 2017) ..... 9 Press Release, Office of Gov. Dannel P. Malloy, Gov. Malloy Signs Legislation Reforming the State’s Pretrial Justice System to Help Break the Cycle of Crime and Poverty: Systemic Reforms Provide Solutions to Pretrial Challenges that Discriminate Against the Poor (June 28, 2017) .............. 16 Alexes Harris, Heather Evans & Katherine Beckett, Drawing Blood from Stones: Legal Debt and Social Inequality in the Contemporary United States, 115 AM. J. SOC. 1753 (2010) ......................................................................... 18 Judith Resnik, Courts and Economic and Social Rights/Courts as Economic and Social Rights, in THE FUTURE OF ECONOMIC AND SOCIAL RIGHTS (Katharine G.