Monday, February 10, 2020
Ariel Jurow Kleiman (University of San Diego School of Law) has posted Nonmarket Criminal Justice Fees (Hastings Law Journal, Forthcoming) on SSRN. Here is the abstract:
The public finance literature tells us that user fees will introduce market-like efficiency to public good provision. Meanwhile, criminal justice scholars note that criminal justice fees have run amok, causing crippling debt, undermining reentry efforts, and raising civil rights and constitutional concerns. This Article reconciles these seemingly opposed perspectives, arguing that criminal justice fees have become harmful precisely because they deviate from the traditional market-like environment that the public finance literature envisions. This nonmarket structure occurs for two reasons. First, criminal justice agencies are monopolistic providers of mandatory services, and second, criminal defendants cannot or do not consider the fee amount when deciding how to behave. As a result, criminal justice fees operate without meaningful restraint, and instead face upward pressure from monopolistic agencies seeking increased revenue. Adjudicating courts, meanwhile, have diluted judicial fee requirements to accommodate increasingly creative user fee structures. These unbounded, nonmarket fees incentivize misallocation of public resources, heighten the risk of exploitation of powerless groups, cause significant human suffering, and deny payors meaningful protection from exploitative government exactions.
In addition to offering a public-finance based critique of criminal justice fees, the Article harnesses such reasoning to offer a framework for evaluating other potentially exploitative nonmarket fees. Policymakers and advocates can use this framework to prevent unbounded nonmarket fees before they become entrenched revenue streams. The Article also offers reforms for criminal justice fees, with the goal of meaningfully restraining the fees and correcting perverse agency incentives. Suggested reforms include increasing judicial scrutiny, prohibiting local agencies from keeping the fee revenue they collect, and placing a low per-person cap on total fees.