"The New Due Process: Fairness in a Fee-Driven State"

A new and interesting article from Profs. Gelnn Harlan Reynolds, InstaPundit, and Penny White are both from the University of Tennessee College of Law. (See also this Wall Street Journal article, which is not behind a paywall)

Numerous municipalities use the criminal justice system to generate revenue. Fines and court costs for minor offences can be used to finance municipal government. It eliminates the need to increase taxes that might not want to pay. This revenue-generation strategy is often the main driver for a government’s criminal justice priorities, such as the Ferguson, Missouri case we will discuss.

This results in a predatory interaction between law enforcement officers and citizens. Officers find (or generate) violations, issue citations, and courts and clerks assess an seemingly endless number of fees, fines, and costs, whose primary purpose is to fatten government coffers. Citizens are arrested and jailed while they wait. They lose jobs, licenses, opportunities, and liberty….

Worse, there is no judicial oversight in these cases. The courts aren’t umpires but participants in this system, and they benefit from the income that the system generates. The system is a threat to the judiciary’s control. It is not even racially neutral. An African-American large population is an important factor in the cities that depend on high fines, fees and court costs to fund their courts. The Justice Department discovered that Ferguson, Missouri was a good example of what is happening across the nation. “Among the fifty cities with the highest proportion of revenues from fines, the median size of African American population—on a percentage basis—is more than five times greater than the national median.” A greater concentration of African Americans in communities of color not only results in an increase in African American incarceration rates but also a wider community-wide rise in the racial inequality. Even after the encounter ends with the police, the impact of the increase in the gap in racial wealth often remains.

As it is currently practiced in many areas, the current fee-based criminal justice system is discriminatory and unfair. This system is also illegal. Although it’s a strong accusation, this is also true. We will discuss the need for tough responses.

The places we start this analysis are vastly different. Our perspectives on the most pressing issues are vastly different as people, lawyers and law professors. As are our backgrounds, many of the values and interests we share, are also different. We are still connected even though we started from different points.
Conclusions and solutions are drawn and it is possible that other people may also agree, even though they might have different points of view. Based on Supreme Court caselaw on judicial independence, along with two very recent cases from the Court of Appeals for the Fifth Circuit, we conclude that a judicial system that depends on revenue extracted from its “users”—criminal defendants, victims of civil forfeiture, and the like—violates due process of law because it is insufficiently independent and unbiased. There are also a variety of options that both legislatures and courts can use.

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