CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, July 20, 2018

Rodrigues on Fees

Cristina Rodrigues (Commonwealth of Massachusetts) has posted The Cost of Justice: The Importance of a Criminal Defendant’s Ability to Pay in the Era of Commonwealth v. Henry (Northeastern University Law Review, Vol. 10, No. 1, 2018) on SSRN. Here is the abstract:
Individuals involved with the criminal courts are exposed to a minefield of fees. In fiscal year 2016, the (state) trial courts of Massachusetts collected over $99 million in fines, fees and court costs. Much of that amount came from the state's poor residents, poor communities and communities of color, because those groups are dramatically over represented in criminal courts. Individuals who do not make criminal court ordered payments can be jailed. As a public defender in Boston, I see my clients burdened by these fees everyday. 

In this article, I detail the way in which these criminal court fees are exacerbating the stark racial and economic inequalities that persist. The statistics are alarming.
With great enthusiasm though, I argue that the Supreme Judicial Court's (SJC) 2016 decision in Commonwealth v. Henry provides powerful legal tools for addressing the unjust imposition and collection of criminal court payments. In Henry, the SJC 1) barred judges from ordering defendants on probation to pay restitution amounts that are beyond their actual ability to pay and 2) barred the very common practice of extending a person's probation for the sole purpose of collecting more restitution payments. These rules extend beyond what exists in most jurisdictions. In the article, I analyze Henry closely. I then argue that Henry's rules should be formally extended to all criminal court payments. Doing so could render Henry a watershed case regarding the criminalization of poverty in Massachusetts and beyond. These rules will bring us a bit closer to actualizing the fundamental principle that no individual should be incarcerated for his poverty or treated more harshly by the courts based on his poverty.

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