Ensuring Young People Are Not Criminalized for Poverty: Bails, Fees, Fines, Costs and Restitution in Juvenile Court

Bail, Fees, Fines, Costs, and Restitution in Juvenile Court

“There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Griffin v. Illinois, 351 U.S. 12, 19 (1956).

Juvenile courts across the country charge young people and their families bail, fines, fees, costs, and restitution without regard to children’s inability to pay. Such financial assessments are common in criminal courts, but in juvenile courts the consequences of such practices are even more detrimental, as they are exacerbated by children’s financial dependence. Children may feel pressure to waive their right to counsel if their legal representation imposes a financial burden on their families; and children and their families are pulled deeper into the court system for longer periods of time, for reasons unrelated to public safety. Further, when access to justice is conditioned on a person’s ability to pay fines, fees, and other costs to the courts, the disparities of class, race, and ethnicity are magnified.

Judges are uniquely positioned to eliminate the harms and hardships caused by the imposition of bail, fees, fines, costs, and restitution orders in court. This bench card illustrates some of the detrimental impacts of financial assessments and obligations upon youth and their families, and provides guidance for judges on how to exercise their discretion to alleviate harm and support youth on pathways to success.

On March 14, 2016, the U.S. Department of Justice (DOJ) called for a national review of all policies that condition release and supervision on financial terms without first considering a person’s ability to pay, calling such practices “little more than punishing a person for his poverty.”1 The DOJ letter intended to ensure that “courts at every level of the justice system operate fairly and lawfully,” and that every court inquires about ability to pay in all contexts.2

In January 2017, the DOJ issued an advisory applying the 2016 letter to youth, explaining that: [I]n addition to fines, [juvenile] courts often impose fees on children for diversion programs, counseling, drug testing and rehabilitation programs, mental health evaluations and treatment programs, public defenders, probation, custody, and court costs. These fines and fees can be economically debilitating to children and their families and can have an enduring impact on a child’s prospects.3

The DOJ advisory notes the importance of going further to address the problems of charging fines and fees for youth rather than for adults, based on “children’s ‘diminished culpability and greater prospects for reform.’”4 The advisory references U.S. Supreme Court decisions that rely on adolescent development research showing critical differences between youth and adults when it comes to children’s judgment, understanding, and vulnerability,5 and explicitly applies that research and legal precedent to this issue: “Accordingly, as in virtually every other context, the justice system, with respect to fines and fees, must recognize and protect the special vulnerabilities of children.”6

In recognition of the unique challenges faced by children and the lasting harm caused by financial assessments, there is a growing trend among states to eliminate fines and fees for youth.7

1. APPOINTMENT OF COUNSEL

Children have a constitutional right to counsel.8 All youth should be presumed eligible for an attorney by virtue of their status as children, without consideration of the income of their family;9 otherwise, children may feel pressure to waive their right to counsel rather than subject their family to repeated court appearances or what may be perceived to be an intrusive financial review. Additionally, children who are required to apply for counsel may spend more time in detention while their parents gather supporting documents and complete financial paperwork. Recognizing that children should be deemed automatically financially eligible for counsel, irrespective of family income, some states are codifying this presumption, including seven states in the last two years alone.10 The automatic appointment of client-directed counsel at the earliest possible moment in the proceedings allows time for youth to meet with an attorney who can advise them of their rights and explain the procedural process and the role of counsel.

Application fees also present a barrier to children asserting their right to counsel, as they must depend on their families to pay the fee. Fees that are assessed as part of the case can lead to extended periods of probation and financial obligations that follow children well into adulthood, impacting their ability to access education, housing, and employment. Conflicts also may arise when parents pay for the cost of counsel because they may feel entitled to direct the representation of their child, rather than ensuring client-directed representation.11

2. BAIL AND DETENTION

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”12

In August 2017, the American Bar Association (ABA) adopted a resolution prohibiting the use of financial conditions or collateral for release in any form in juvenile cases.13 The ABA resolution calls for the elimination of juvenile bail and the severe curtailing of the use of juvenile detention because:

Research indicates that detaining children, even for minimal periods[,] has an enduring traumatic impact, and also increases recidivism. Detention disrupts pro-social development by disrupting the connective tissue of access to family, school and community. Recidivism is also increased by increased rates in school dropout and failure, which fuels the school-to-prison pipeline. Children who do not graduate high school are eight times more likely to later be arrested.14

Several states are examining bail practices in the criminal system, and some have begun to apply recommended changes to juvenile court as well.15 Conditioning a child’s liberty on their ability to post cash bail ignores research showing that detention increases recidivism and exacerbates racial and ethnic disparities.16 Additionally, the imposition of cash bail that a youth or their family cannot pay fosters “class-driven preventive detention.”17 Such detention is not the least restrictive means of protecting public safety or assuring appearance in court because it accomplishes neither and penalizes poverty.18

3. PROBATION SUPERVISION FEES AND PLACEMENT FEES

“Equal justice means that the length of probation supervision imposed at the time of sentence should not be affected by the financial means of the defendant . . . .”19

As of September 2017, 21 states required youth and their families to pay fees for probation supervision and other probation services.20 This practice prolongs justice system involvement, puts youth at higher risk for probation violations, and traps families in debt. These fees also broaden racial and economic disparities in a juvenile justice system that disproportionately impacts low-income, minority children.21 This practice raises concerns about fundamental fairness and due process. Recognizing the negative repercussions of such fees, some jurisdictions have taken steps to abolish probation and administrative fees.22

4. COURT COSTS

The imposition of court costs — the collection of which may be unlawful where they are geared toward raising revenue rather than addressing public safety — can “cast doubt on the impartiality of the tribunal and erode trust between local governments and their constituents.”23

Court costs imposed on youth undermine other conditions placed on young people — particularly where such legal financial obligations ultimately become debts owed to the court — and create an impression of the court as a collection agency rather than a neutral arbiter.24 Additionally, where court costs are used to fund local programs in which youth are ordered to participate, the appearance of conflict or impropriety further erodes any sense that the court is impartial and fair.25 This appearance is especially important in juvenile courts, where research demonstrates that outcomes are improved when children and their families feel they have been treated fairly.26

5. FINES AND FEES

Fines and fees can have an economically debilitating effect on the lives of youth and their families, disrupting education and employment opportunities and allowing youth fewer avenues to success.27 These fines and fees exacerbate economic disparities because the vast majority of youth and families involved with the juvenile justice system are low-income, and already in precarious financial situations.28 And families with little means can be forced to choose between paying their outstanding court debts or covering the costs of food, housing, and other necessities.29 Youth and their families who are unable to pay fees and fines move deeper into the court system, as their inability to pay leads to more fees, late charges, extended probation, civil liens, license forfeiture, and even incarceration.30 These negative effects increase the risk of recidivism for children who continue to owe money after their juvenile cases have ended — and children of color feel this most acutely because they are overrepresented at every step of the juvenile justice system and are thus exposed to more frequent and higher fees.31

6. RESTITUTION

Restitution orders are generally designed to provide economic compensation for losses incurred when an offense has been committed against an individual, while also holding the young person accountable for the resulting damage.32 Restitution programs vary in approach, with some programs providing opportunities for job training, while others consist merely of an order to pay without any support to help youth earn money to make restitution payments.33 Ordering restitution without appropriate supports can have the same lasting, detrimental effects as other court costs, fines, and fees. It can also have a negative impact on services provided to youth who are courtinvolved: “Jurisdictions in which restitution has been integrated with probation have seen the role and the nature of the work of probation officers change considerably. The probation officers’ work has shifted from counseling, social services, or once-a-month visits to implementing and monitoring restitution requirements.”34

7. COMMUNITY SERVICE

While community service can sometimes be an appropriate alternative to restitution, it should not be used as an automatic condition in all cases. Community service that is ordered in lieu of restitution should promote positive youth development and support principles of restorative justice, allowing the youth to repair harm caused by their actions.35 Community service that is merely punitive — including activities that impart punishment or humiliation, or are designed to hurt, exhaust, or label youth — does nothing to encourage reflection and community engagement.36 Punitive community service is instead likely to alienate youth, as it perpetuates the perception of the young person as “alien to the community” — an outsider who is unworthy, a burden, or a threat.37 Such programs can have longterm negative effects and do not benefit young people or the community. Additionally, community service that provides no opportunity to make measurable reparation has the opposite effect of restorative community service.38 In order for community service to be worthwhile, it should help the young person develop skills that will provide for long-term success in the community and workforce, and the youth should be allowed adequate time to complete the requirements outside of time reserved for school, work, and family.

Financial assessments and considerations arise throughout a young person’s involvement in the court system. Judicial discretion can significantly ameliorate the harms and hardships caused by the imposition of bail, fees, fines, costs, and restitution orders in court. Consider the following strategies when financial obligations arise, even where such assessments may be allowable under statute.

1. COUNSEL FEES

• Appoint counsel for youth, without consideration of family income. Financial eligibility (indigence) determinations should be abolished in youth cases.
• Exempt children and their families from the imposition of counsel fees.

2. BAIL AND DETENTION

• Release youth on personal recognizance unless there is an established likelihood of failure to appear.39
• Do not impose cash bail or financial conditions for release.
• Do not detain children based only on the inability of the youth or their family to pay bail.
• Ensure that conditions of release are directly related to court appearance/failure to appear.

3. PROBATION SUPERVISION FEES AND PLACEMENT FEES

• Exempt youth and families from probation and post-release supervision fees.
• Exempt youth and families from fees for out-of-home placement.
• Do not assess probation, post-release, or out-of-home placement fees.

4. COURT COSTS

• Do not impose court costs on youth and families.
• Do not impose court costs as a way of generating revenue.

5. FINES AND FEES

• Do not impose fines and fees on youth and families.
• Do not impose fines and fees as a way of generating revenue or imposing sanctions.
• Do not condition access to a judicial hearing on the prepayment of fees.
• Do not incarcerate or detain any person for non-payment of fees, fines, or financial obligations when the failure to pay stems from poverty, lack of income, or an inability to pay.40
• Presume that youth are unable to pay fines and fees. 5. 41

6. RESTITUTION

• Only impose restitution in limited cases in which the young person’s actions caused actual monetary loss.
• Do not impose restitution without a determination of ability to pay.42
• Restitution orders should be supported by evidence in the record and appropriate findings of fact which demonstrate that the best interest of the youth will be promoted by the imposition of restitution.
• Consider not only fairness to the victim in imposing restitution, but also the longterm impact of the restitution order on the future success of the youth.43
• Do not require a youth to make restitution if the youth does not have and could not reasonably acquire the means to make restitution within a reasonable period of time.
• If a youth is required to pay restitution, apply any payments for fines, fees, and costs to the amount of restitution due first.

7. COMMUNITY SERVICE

• Order community service in lieu of restitution only in ways that promote positive youth development and help youth build skills that will provide for long-term success in the community and workforce.
• Ensure any community service ordered is limited in duration and does not prevent the youth from engaging in pro-social activities, school, and employment.
• Consider community service as a restorative learning opportunity for youth, not a sanction-based strategy to obtain costs.

8. WHERE A FINANCIAL ASSESSMENT MUST BE IMPOSED, OFFER A PAYMENT PLAN

Offer a periodic payment plan for youth that:

• Does not impose onerous user fees or interest.
• Allows for electronic and web-based payments.
• Offers a mechanism for youth to seek a reduction in their monthly obligation if financial circumstances change.

No court should incarcerate or detain any person for non-payment of costs, fees, fines, or financial obligations when the failure to pay stems from poverty, lack of income, or an inability to pay.44

Families burdened by these obligations may face a difficult choice, either paying juvenile justice debts or paying for food, clothing, shelter, or other necessities. The cost of fines and fees may foreclose educational opportunities for system-involved youth or other family members. When children and their families are unable to pay fines and fees, the children often suffer escalating negative consequences from the justice system that may follow them well into adulthood.45