Friday, September 25, 2020
Penny White and Glenn Harlan Reynolds (University of Tennessee College of Law and University of Tennessee College of Law) have posted Due Process in a Fee-Driven State on SSRN. Here is the abstract:
Inspired by the Justice Department's report on criminal law enforcement and the use of courts as a revenue-generation machine in Ferguson, Missouri, we address the widespread problem of policing for profit in light of two classic Supreme Court cases on due process, and two very recent Court of Appeals cases that focus specifically on the due process implications of a justice system dependent for funding on those people it "serves." we argue that when everyone participating in the justice system is aware that the system itself depends on sufficient revenue from fines, fees, and forfeitures, that very dependency is a conflict of interest sufficient to violate due process rights. In this short article, we will look briefly at the history and law of judicial independence, after which we will describe the extent to which the modern judicial system – and, indeed, the entire law enforcement apparatus – depends upon extracting money from a steady stream of individuals who appear before it creating an untenable vested interest in charging and collecting and resulting in a fundamentally unfair system. We then offer a number of solutions, and find Supreme Court support for our approach in a surprising place.