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CONFRONTING
CRIMINAL
JUSTICE DEBT
A GUIDE FOR
LITIGATION

NCLC®
September 2016

NATIONAL
CONSUMER
LAW
CENTER

®

© Copyright 2016, National Consumer Law Center, Inc. All rights reserved.

ABOUT THE AUTHORS
Abby Shafroth is a staff attorney at the National Consumer Law Center and focuses on the
intersection of criminal justice and consumer law, and student loans and for-profit school issues.
Previously, Abby litigated employment and civil rights class and collective actions at Cohen Milstein
Sellers & Toll PLLC in Washington, D.C., and worked as an attorney at the Lawyers’ Committee for
Civil Rights Under Law.
David Seligman is a contributing author at the National Consumer Law Center, where he specializes
in forced arbitration, and a staff attorney at Towards Justice in Denver, Colorado, where he primarily
litigates class and collective actions on behalf of low-wage workers. Previously, he was a staff attorney at
NCLC focusing on forced arbitration, court fines and fees, and subprime auto lending.
Alex Kornya is the Assistant Litigation Director at Iowa Legal Aid. Previously, he was a staff attorney
for Iowa Legal Aid, advocating primarily in the areas of consumer protection, tax, and housing. Since 2009,
he has advocated for the rights of low-income people facing the burden of criminal justice debt, developing
and raising various constitutional and consumer protection theories and achieving systemic change.
Rhona Taylor is a staff attorney in the Institutions Project at Columbia Legal Services and currently
heads the Reentry Taskforce. Throughout her legal career, she has worked to increase access to justice
for all, whether as a member of the Institutions Project, a staff attorney at the King County Department
of Public Defense, or in her prior role as an Assistant Federal Public Defender in Michigan.
Nick Allen is a staff attorney in the Institutions Project at Columbia Legal Services. He works on
addressing the legal barriers of legal financial obligations—the fees, fines and restitution imposed by the
court as part of a criminal judgment and sentence.

ACKNOWLEDGMENTS
The authors thank Carolyn Carter, Jan Kruse, Odette Williamson, Jeremiah Battle, Stuart Rossman, Chi
Chi Wu, John Rao, Tara Twomey, Nusrat Choudhury, Andrew Crespo, Larry Schwartztol, Anna Kastner,
Bob Hobbs, Jessica Park, Denise Lisio, Eric Secoy, and Allen Agnitti for their tremendous support in
developing and refining these legal theories and for providing technical assistance in creating this
report. The development of this report was undertaken as part of a collaboration with the Criminal
Justice Policy Program at Harvard Law School, Confronting Criminal Justice Debt: A Comprehensive Project
for Reform.

NCLC®

ABOUT THE NATIONAL CONSUMER LAW CENTER

Since 1969, the nonprofit National Consumer Law Center® (NCLC®) has used
NATIONAL its expertise in consumer law and energy policy to work for consumer justice and
CONSUMER economic security for low-income and other disadvantaged people, including
older adults, in the United States. NCLC’s expertise includes policy analysis
LAW
and advocacy; consumer law and energy publications; litigation; expert witness
C E N T E R services, and training and advice for advocates. NCLC works with nonprofit and
legal services organizations, private attorneys, policymakers, and federal and state
government and courts across the nation to stop exploitive practices, help financially stressed families
build and retain wealth, and advance economic fairness.

®

ABOUT THIS PROJECT
This report is part of Confronting Criminal Justice Debt: A Comprehensive Project for Reform, a collaborative
project by Criminal Justice Policy Program (CJPP) at Harvard Law School and the National Consumer
Law Center (NCLC).
This project includes three parts designed to assist attorneys and advocates working on reform of
criminal justice debt:


Confronting Criminal Justice Debt: The Urgent Need for Comprehensive Reform (CJPP and NCLC),



Confronting Criminal Justice Debt: A Guide for Litigation (NCLC), and



Confronting Criminal Justice Debt: A Guide for Policy Reform (CJPP).

For more information, please visit:
Criminal Justice Policy Program at Harvard Law School at: http://cjpp.law.harvard.edu
National Consumer Law Center at: http://www.nclc.org/issues/criminal-justice.html

CONFRONTING
CRIMINAL JUSTICE DEBT
A GUIDE FOR LITIGATION
TA B LE OF CONT E NT S
1. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1
1.1.	 The Growing Need for Skilled Representation of Individuals in Criminal Justice Debt Matters  . .  1
1.2.	 Criminal Justice Debt as a Matter of Both Racial and Economic Justice  . . . . . . . . . . . . . . . . . . . . .  5
1.3.	 Criminal Justice Debt Representation Often Falls Through the Cracks Between Existing
Criminal and Civil Legal Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  7
1.4.	 Purpose of This Guide  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.5.	 How This Guide Is Structured  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.  CONSTITUTIONAL BACKDROP: FRAMING CRIMINAL JUSTICE DEBT QUESTIONS  . .  12
2.1.	Introduction  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.2.	 Tate v. Short and Bearden v. Georgia: Debtors’ Prisons and Limits on Incarceration as an
Enforcement Device . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.3.	 James v. Strange and Fuller v. Oregon: Restrictions on Unduly Harsh or Discriminatory
Means of Collecting Government Debts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.4.	 Constitutionally Required Procedural Safeguards in Criminal Justice
Debt Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.5.	 How Constitutional Principles Guide Analysis of Criminal Justice Debt Issues  . . . . . . . . . . . . . . . 19
3.  DEFENDING AGAINST IMPOSITION OF CRIMINAL JUSTICE DEBT:
REPRESENTATION DURING A CRIMINAL OR CIVIL PROCEEDING THAT
MIGHT RESULT IN CRIMINAL JUSTICE DEBT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.1.	Introduction  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.2.	 Identifying Relevant Types of Criminal Justice Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.3.	 Requirements to Conduct Ability-to-Pay Determinations at Imposition . . . . . . . . . . . . . . . . . . . . . 26
3.4.	 Representing Clients in Ability-to-Pay Hearings  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

3.5.	 Plea Bargaining and Criminal Justice Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
3.6.	 Community Service as an Alternative to Criminal Justice Debt  . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
3.7.	 Communicating with Your Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
3.8.	 Checklist for Representation of Clients Facing Imposition of Criminal Justice Debts  . . . . . . . . . 51
4.  DEFENDING COLLECTION OF CRIMINAL JUSTICE DEBT: REPRESENTATION
OF CLIENTS FACING COLLECTION OR SANCTIONS FOR NONPAYMENT
OF CRIMINAL JUSTICE DEBT, INCLUDING THOSE FACING THREATS TO
THEIR LIBERTY  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
4.1.	Introduction  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
4.2.	 The Advocacy Gap  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.3.	 Seeking Remission or Modification of Criminal Justice Debts or Payment Plans
After Imposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
4.4.	 Defending Against Incarceration Based on Inability to Pay  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
4.5.	 Other Constitutional Defenses  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
4.6.	 Defenses Based on State Constitutional Violations  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
4.7.	 Statute of Limitations  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
5.  CRIMINAL JUSTICE DEBT AND BANKRUPTCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  70
5.1.	Introduction  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
5.2.	 Automatic Stay  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
5.3.	 Criminal Justice Debts in Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  74
5.4.	 Criminal Justice Debts in Chapter 13  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
6.  PROTECTING ASSETS, WAGES, AND BENEFITS FROM INVOLUNTARY
COLLECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  86
6.1.	Introduction  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
6.2.	 Purposes of Exemption Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
6.3.	 Whether Exemption Laws Apply to Criminal Justice Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
6.4.	 The Role of Exemption Laws at the Imposition Stage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
6.5.	 Exemptions Applicable to Federal Criminal Justice Debt Collection  . . . . . . . . . . . . . . . . . . . . . . . . 90
6.6.	 Federal Exemptions Applicable to State and Municipal Criminal Justice Debt Collection . . . . . 95
6.7.	 State Exemptions Applicable to State and Municipal Criminal Justice Debt Collection . . . . . . . 98
6.8.	 Concurrent Garnishments of Earnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
6.9.	 Manner of Raising Exemptions, Due Process and Equal Protection . . . . . . . . . . . . . . . . . . . . . . . . 102
6.10.	 Checklist for Representation of Clients Seeking Relief from Criminal Justice Debt
and Collection Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

7.  AFFIRMATIVE PROTECTIONS, CLAIMS, AND COUNTERCLAIMS RELATING
TO METHODS AND TERMS OF COLLECTION  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
7.1.	 Why Consider Affirmative Litigation  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
7.2.	 Bars to Affirmative Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
7.3.	 Affirmative Constitutional Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
7.4.	 Claims Under Federal and State Debt Collection Practices Statutes . . . . . . . . . . . . . . . . . . . . . . . 122
7.5.	 Fair Credit Reporting Act  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
7.6.	 Equal Credit Opportunity Act  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
7.7.	 Title VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
7.8.	 Checklist to Begin Consideration of Affirmative Claims Challenging Criminal Justice
Debt Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
TABLES
TABLE 1.	 Examples of Cost Recoupment Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
TABLE 2.	 Key Steps Defense Counsel Should Take to Address Criminal Justice Debts
at Imposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
TABLE 3.	 Examples of Remission Statutes  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

1.  INTRODUCTION
1.1.	 The Growing Need for Skilled Representation of Individuals in Criminal
Justice Debt Matters
In August 2014, The New York Times reported on events unfolding in Ferguson, Missouri,
a “working-class suburb of about 20,000 residents.” Twenty-four hours earlier, a police
officer had shot and killed an 18-year-old black youth named Michael Brown. The next
day, hundreds of people gathered to protest and light candles. Michael Brown’s stepfather stood at the gathering holding a cardboard sign that read “Ferguson police just
executed my unarmed son.”1
News of Michael Brown’s shooting and the tensions that followed were the first that
most people had heard about Ferguson, Missouri. But as we learned more, we saw that
Michael Brown’s death was the explosive culmination of many years of systematic injustice. For the five years prior to the shooting, a small legal services and advocacy organization based in the St. Louis region called ArchCity Defenders had been representing
clients in municipal courts and chronicled their clients’ experiences in a white paper
focused on the region’s municipal courts.2 Those courts had been the focal point of an
aggressive revenue-through-law enforcement scheme that targeted primarily the African-​
American community in which Michael Brown had grown up. In 2015, when the
Department of Justice investigated Ferguson’s municipal court system and police
department, it observed that the municipal courts handled “most charges brought by
FPD, and d[id] so not with the primary goal of administering justice or protecting the
rights of the accused, but of maximizing revenue.”3 In its white paper discussing the
phenomenon, ArchCity Defenders explained the relationship between the police and
the municipal courts: “Many residents feel that the police target black residents and try
to find something wrong in order to issue tickets. The courts, in turn, issue arrest warrants for failure to pay and send them to jail if they fail to pay thereafter.”4 This scheme
imposed jarring costs on the city’s residents:

1  Julie

Bosman & Emma G. Fitzsimmons, Grief and Protests Follow Shooting of a Teenager, N.Y. Times, Aug.
11, 2014, available at http://www.nytimes.com/2014/08/11/us/police-say-mike-brown-was-killedafter-struggle-for-gun.html.
2  Thomas Harvey, et al., Archcity Defenders: Municipal Courts White Paper (2014) (“ArchCity White
Paper”), available at http://03a5010.netsolhost.com/WordPress/wp-content/uploads/2014/11/
ArchCity-Defenders-Municipal-Courts-Whitepaper.pdf.
3  U.S. Dep’t of Justice, Investigation of the Ferguson Police Department 42 (Mar. 4, 2015) , available at https://
www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_
department_report.pdf..
4  ArchCity White Paper, supra n.2, at 16.

A Guide for Litigation

1

Clients reported being jailed because they were unable to pay fines. Some who have been
incarcerated for delinquent fine payments have lost jobs and housing as a result. Indigent
mothers “ failed to appear” in court and had warrants issued for their arrest after arriving
early or on-time to court and being turned away because that particular municipality prohibits
children in court. Family members were forced to wait outside courtrooms while loved-ones
represent themselves in front of a judge and a prosecutor. Many recounted being mistreated by
the bailiffs, city prosecutors, court clerks, and even some judges.5
Unfortunately, what was happening in Ferguson happens all across the country every
day. The costs of this injustice are tremendous—both for the debtors and families like
those whom ArchCity described and for society more broadly. Systematic injustice
of this scope must be addressed not just through litigation but also through policy
reform, public education, and activism. Yet litigation approaches remain critical, and
lawyers and advocates across the country must be armed with as many tools as possible
to protect the clients and communities they serve.
Before understanding how we might attack the problem, we must identify it. Those
ensnared in the criminal and civil justice systems frequently must pay a heavy price in
the form of costs related to arrest, prosecution, defense, imprisonment and supervision, as well as more generic surcharges and punitive fines.6 Today, criminal justice debt
amounts owed by individuals often total in the thousands, and sometimes significantly
more.7 Individuals do not need to be convicted of a crime to owe criminal justice debt.
Even those who are acquitted, have charges dismissed, or are never charged may be
stuck with the bill for their arrest, detention, and defense in many jurisdictions.
As states and municipalities have struggled with budget shortages, they have increased
not only the amount of criminal justice debt imposed but also the vigor with which it
is collected. For example, in 2010, Philadelphia launched its first major effort to collect an estimated $1.5 billion in outstanding criminal justice debts, dating back to the
1970s. Although the city later decided to halt collection of the largest category of the
5  Id. at

1-2.
Alexes Harris, A Pound of Flesh: Monetary Sanctions As Punishment for the Poor 5–11, 23–41
(2016).
7  See id. at 56–57 (average criminal justice debt imposed in Washington State is $1,347, not including
restitution—with restitution average debt totaled $9,204); id. at 57–58 figs. 3.1–3.2 (illustrating rapid
accumulation at 12% interest accrued for those with limited ability to pay); id. at 55 (interviewee was
assessed $33,000 in debts and spent eight years in prison; though she was currently making
minimum payments, accruing interest had brought her total debt to $72,000 by thirteen years postconviction); see also Saneta deVuono-powell, Chris Schweidler, Alicia Walters, & Azadeh Zohrabi, Ella
Baker Foundation, Who Pays? The True Cost of Incarceration on Families 13 (2015), available at
http://ellabakercenter.org/sites/default/files/downloads/who-pays.pdf (survey finding average
amount spent by formerly incarcerated people and their families in 14 states on criminal justice
costs, including attorney’s fees and restitution, was $13,607).
6  See

2

Confronting Criminal Justice Debt

debts after a significant public education and media campaign led by Community Legal
Services and other advocates,8 this recent aggressive collection effort appears to be in step
with a broader trend. As part of this wave, states and local governments are also increasingly contracting with private debt collection agencies—which are often authorized to
charge significant collection costs—to try to collect from those with criminal justice debt.9
The methods available to collect criminal justice debts can be draconian. In at least
44 states and the District of Columbia, individuals may be incarcerated for “willful”
nonpayment of criminal justice debts.10 In many jurisdictions, nonpayment of criminal justice debt may also result in governmental infringements on other vital rights and
interests that could be essential to a person’s self-sufficiency or successful reentry following incarceration, including suspension of driver’s or professional licenses, restrictions
on expungement of criminal records, and denial of the right to vote.11 Debtors may also
face garnishment of their wages or benefits and seizure of their tax refunds or other assets.
As discussed in the companion Guide for Policy Reform, significant reform of the laws governing these practices is needed. Even under current law, however, there are a number
of important legal protections available to defend against or challenge criminal justice
debt practices. For example, in some jurisdictions, imposition of both mandatory and
discretionary costs is not permitted if the defendant lacks the ability to pay. Skilled
representation by counsel can often limit the imposition of excessive and unaffordable criminal justice fines and fees, substantially improving the lives of the individuals
directly affected. Moreover, there are constitutional limits on imprisonment of debtors because of their inability to pay criminal justice debt, and on unduly harsh collection methods that deprive those who owe criminal justice debt of the defenses and
exemptions that apply to other debtors. Representation will often enable the debtor to
obtain a payment plan, or even modification or remission of the debt itself. Bankruptcy

8  See Suzanne Young, A Successful Campaign in Philadelphia to Eliminate Unsubstantiated Criminal Debt, Talk

Poverty (Sept. 11, 2015), available at https://talkpoverty.org/2015/09/11/successful-campaignphiladelphia-eliminate-huge-unsubstantiated-criminal-debt/.
9  See, e.g., Blake Ellis & Melanie Hicken, CNN Money Investigation, The Secret World of Government Debt
Collection (Feb. 17, 2015), available at http://money.cnn.com/interactive/pf/debt-collector/
government-agencies/.
10  See Alexes Harris, A Pound of Flesh: Monetary Sanctions As Punishment for the Poor 50 (2016). For
a summary of all states, see id. at tbl. 4.2, and for a chart of the state law authority relied upon, see id.
at tbl. A2.2.
11  See generally Confronting Criminal Justice Debt: A Guide for Policy Reform at 15-17, 22-23 (2016). See also
Ark. Code. Ann. § 16-90-1404 (driver’s license suspensions); Iowa Code §§ 901C.1, 907.9
(expungement); Alicia Bannon, Mitali Nagrecha & Rebekah Diller, Brennan Center for Justice,
Criminal Justice Debt: A Barrier to Reentry 2, 25, 29 (2010), available at http://www.brennancenter.
org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf; Allyson Fredericksen and
Linnea Lassiter, Alliance for a Just Society, Disenfranchised by Debt (2016).
A Guide for Litigation

3

KEY TERMS


Criminal justice debt:  The various financial obligations that may be imposed on someone
who is accused of an infraction, misdemeanor, or felony, including the costs that may accrue
after sentencing, are referred to generically or collectively by a variety of names, including
criminal justice debt, court debt, criminal debt, legal financial obligations (or “LFOs”), monetary
sanctions, and fines and fees. For consistency, the term criminal justice debt is primarily used
in this report, though the types of debts addressed herein may also result from infractions
such as jaywalking and traffic violations that some jurisdictions treat as civil.



Fines:  Fines are financial obligations imposed as monetary penalties for committing an
infraction, misdemeanor, or felony. Fines may be generally authorized or offense-specific.12



Fees or Costs:  Also known as user fees or recoupment costs, fees or costs are financial
obligations imposed on defendants as a way for the government to recover the costs of
prosecuting the defendant, or to otherwise fund operational costs of the criminal justice
system. Fees may be assessed using a preset schedule, or the amount may be tied to the
actual cost of providing the service. Examples include jury fees, expert witness costs, costs
of incarceration, and, as described in more detail below, defense costs. Depending on the
jurisdiction, costs can be imposed on both convicted and acquitted defendants. There may
be limits on the amount of costs a defendant can be ordered to pay. Unlike fines, fees or
costs are generally not intended to serve a punitive purpose.13



Indigent Defense Fee Recoupment (“IDFR”):  Indigent defense fees (also known as IDFR
or public defense fees) are among the most common and substantial costs that can be
imposed on indigent criminal defendants. Using an NPR study in 2014, at least 43 states and
the District of Columbia have statutory authority to bill defendants for receipt of public
defense or appointed counsel services.14 Costs of defense can be significant—especially to
those deemed indigent—and may be imposed as part of a criminal judgment and sentence
or as a separate civil obligation.



Surcharges:  Commonly grouped together with fees or costs, surcharges are financial obligations that are imposed as a flat fee or percentage added to a fine to fund a particular
government function.

12 See, e.g., Fla. Stat. § 775.083 (general limits for fines for non-capital felony convictions); 730 Ill. Comp.

Stat. § 5/5-9-1.1 (fines for certain drug convictions that must be in amounts not less the full street
value of the controlled substances seized); Or. Rev. Stat. § 161.625 (maximum fine amounts for murder,
aggravated murder, and general classes of felonies); Tenn. Code Ann. § 39-13-111 (fine for two or more
domestic violence convictions); Wash. Rev. Code § 9.94A.550 (West) (establishing range of fines for all
classes of felonies); Wash. Rev. Code § 69.50.430 (fines for specific felony drug convictions).
13  In some instances, however, fees and costs may be considered to have a punitive or deterrent purpose.
See, e.g., State v. Haines, 360 N.W.2d 791 (Iowa 1985).
14  See Joseph Shapiro, As Court Fees Rise, The Poor Are Paying the Price, National Public Radio (May 19, 2014),
available at http://www.npr.org/2014/05/19/312158516/increasing-court-fees-punish-the-poor.

4

Confronting Criminal Justice Debt



Interest, collection costs, payment plan costs, and penalties:  In most jurisdictions, a defendant’s financial obligations will grow significantly if he is unable to pay the debt imposed
immediately as a result of interest charged on the debt, collection costs, late payment penalties, and costs associated with accessing or using a payment plan.



Restitution:  Restitution refers to financial obligations intended to compensate crime victims for losses suffered as a result of the defendant’s actions. Restitution is generally based
on actual losses and is transmitted to the victim, although there are variations nationally as
to the amount of restitution that can be ordered and whether the money is transmitted
directly to a victim or to a government agency.15 Because restitution involves interests of
victims, in addition to interests of the defendant and the state, imposition and non-penal
collection practices relating to restitution raise more complex issues than those raised by
other criminal justice debts. These issues are largely beyond the scope of this guide.

provides invaluable options for some types of criminal justice debt, and even without
bankruptcy the debtor may be able to invoke federal and state exemption laws to protect key assets and income. Affirmative constitutional and statutory claims are available
in some circumstances to right wrongs committed in the collection of criminal justice
debt. Pursuing any of these claims successfully often requires an attorney.

1.2.	 Criminal Justice Debt as a Matter of Both Racial and Economic Justice
High-quality representation of individuals with criminal justice debt is especially
important for the poor and people of color, as the burdens of criminal justice debt disproportionately fall upon them.
The vast majority of criminal defendants are poor. One study found that nationally,
the earned annual income of two-thirds of jail inmates was under $12,000 in the year
prior to their arrest.16 And approximately eighty percent of criminal defendants are sufficiently indigent to qualify for court-appointed defense counsel.17

15  See,

e.g., Cal. Penal Code § 1202.4 (West); Miss. Code Ann. § 99-37-3; Or. Rev. Stat. § 137.106 (court
shall enter judgment requiring defendant to pay victim restitution in a specific amount that equals
the full amount of the victim’s economic damages as determined by court); Wash. Rev. Code §
9.94A.753 (Washington felony restitution statute; authorizing the court to impose restitution in an
amount equal to double the amount of the offender’s gain or the victim’s loss from the commission
of the offense);
16  Alexes Harris, A Pound of Flesh: Monetary Sanctions As Punishment for the Poor (2016) (citing
Thomas Bonczar, Department of Justice, Bureau of Justice Statistics, Characteristics of Adults on
Probation, 1995 (1997), available at http://bjs.gov/content/pub/pdf/cap95.pdf.
17  See, e.g., Thomas H. Cohen, Who Is Better at Defending Criminals? Does Type of Defense Attorney Matter in
Terms of Producing Favorable Case Outcomes, 25 Crim. J. Pol’y Rev. 30, 35 (2014) (reporting that in forty

A Guide for Litigation

5

Poor people are in the worst position to pay for the criminal justice system. And yet,
poverty often compounds the already significant impact of criminal justice debts on
individuals required to pay them. Not only are the debts
themselves regressive, amounting to a larger proportion of a
Nationally, the earned annual
poor person’s monthly budget, but the poor also ultimately
income of two-thirds of jail
tend to owe more as a result of their poverty, given the extra
interest payments, payment plan costs, collection fees, and
inmates was under $12,000 in
missed payment penalties imposed on those who may strugthe year prior to their arrest.
gle to pay their debts swiftly.18 Finally, people struggling to
pay their court debts are most likely to be subject to harsh
consequences of missed payments—such as arrest, license suspensions, extended probation, and restrictions on expungement—that act as poverty
traps, perpetuating and often worsening conditions of poverty.19
Criminal justice debt also disproportionately impacts people and communities of color.20
First, people of color are disproportionately arrested, detained, prosecuted, convicted,
and sentenced in the United States.21 This disparity often begins with racial profiling
and targeted policing of African American and Latino communities.22 It is then often
exacerbated by discretionary—and once again racially disparate—charging decisions.23
And discretionary sentencing decisions made by judges, potentially including decisions
regarding the imposition of costs and fees, are susceptible to racial bias as well.24 Finally,
in many cases a criminal defendant’s family members take on the burden of paying

of the seventy-five most populous counties in the country, indigent representation accounts for 80%
of criminal cases). See also Sanford Kadish et al., Criminal Law & Its Processes 4 (2012).
18  See generally Confronting Criminal Justice Debt: A Guide for Policy Reform (2016) at 15-19 (discussing how
these additional costs act as poverty penalties and proposing reforms).
19  See id.
20 Cf. Dan Kopf, The Fining of Black America, Pricenomics (June 24, 2016), available at http://priceonomics.
com/the-fining-of-black-america (examining census data and finding that “best indicator that a
government will levy an excessive amount of fines is if its citizens are Black”).
21 Alexes Harris, A Pound of Flesh: Monetary Sanctions As Punishment for the Poor 8 (2016). See also
U.S. Dep’t of Justice, Investigation of the Ferguson Police Department 64-69 (Mar. 4, 2015) (finding
that in Ferguson Missouri, African Americans were more likely to be stopped and searched by police,
cited for minor infractions like jaywalking, and issued multiple citations).
22 Alexes Harris, A Pound of Flesh: Monetary Sanctions As Punishment for the Poor 8 (2016). See also
Back on the Road California, Stopped, Fined, Arrested—Racial Bias in Policing and Traffic Courts in
California 4, 21 (Apr. 2016).
23 See, e.g., Sonja B. Starr & M. Marit Rehavi, Mandatory Sentencing and Racial Disparity: Assessing the Role of
Prosecutors and the Effects of Booker, 123 Yale L.J. 2 (2013).
24 Cf. Crystal S. Yang, Free at Last? Judicial Discretion and Racial Disparities in Federal Sentencing, 44 J. Legal
Stud. 75 (2015) (finding that racial disparities in sentencing, after controlling for offender and crime
characteristics, increased significantly after mandatory sentencing guidelines were struck down in
2005).

6

Confronting Criminal Justice Debt

criminal justice debts,25 and generations of discriminatory, wealth-depriving policies in
the United States have caused low-income African-American families to have significantly
less in assets than white families with the same income.26 Lacking the resources to absorb
the financial shock associated with criminal justice debt, poor families of color are left
without a safety net that might otherwise allow a debtor to quickly pay off criminal justice costs before being exposed to the harsh consequences of missed payments.27 For all
of these reasons, effective representation of individuals with criminal justice debt is especially important in jurisdictions with large African-American and Latino communities.

1.3.	 Criminal Justice Debt Representation Often Falls Through the Cracks
Between Existing Criminal and Civil Legal Services
Criminal justice debt problems arise at the intersection of legal systems that are
generally tended by two different groups of lawyers: criminal defense attorneys and
civil legal service providers. The fines and fees are typically (although certainly not
always) imposed by a criminal court, where the individual will usually be represented—if at all—by an attorney specializing primarily in criminal law.28 The various practices used to coerce payment or collect on the debt, however, can span
an array of different areas of law. Some of these collection practices—like use of
private debt collectors, collection calls and letters, and attempts to use a judgment to garnish assets or wages—are common in private civil debt collection.

25 Ella

Baker Foundation, Who Pays? The True Cost of Incarceration on Families 9 (2015).
National Consumer Law Center, Past Imperfect: How Credit Scores and Other Analytics “Bake
In” and Perpetuate Past Discrimination 1–2 (May 2016), available at http://www.nclc.org/images/
pdf/credit_discrimination/Past_Imperfect050616.pdf (discussing historical and continuing
causes of the racial wealth gap); Paul Kiel and Annie Waldman, ProPublica, The Color of Debt: How
Collection Suits Squeeze Black Neighborhoods (Oct. 8, 2015), available at https://www.propublica.
org/article/debt-collection-lawsuits-squeeze-black-neighborhoods (“According to our analysis of
the Federal Reserve’s 2013 Survey of Consumer Finances, the typical white family with annual
income between $20,000 and $40,000 had about $2,010 in liquid assets, while the typical black
family in that range had just $650.”). See also Tom Shapiro, Tatjana Meschede, Sam Osoro, The
Roots of the Widening Racial Wealth Gap: Explaining the Black White Economic Divide (Feb. 2013)
available at http://iasp.brandeis.edu/pdfs/2013/Roots_of_Widening_RWG.pdf .
27 Cf. Paul Kiel and Annie Waldman, ProPublica, The Color of Debt: How Collection Suits Squeeze
Black Neighborhoods (Oct. 8, 2015), available at https://www.propublica.org/article/debt-collectionlawsuits-squeeze-black-neighborhoods (finding that black neighborhoods “were hit twice as hard
by” by civil debt collection judgments as white neighborhoods, even when adjusting for differences
in income, and pointing to the difference in liquid assets between low-income black and white
families).
28  The constitutional right to appointed counsel only applies when a defendant is sentenced to
incarceration in a criminal proceeding. See Scott v. Illinois, 440 U.S. 367, 373–374, 99 S. Ct. 1158, 59
L. Ed. 2d 383 (1979).
26 See

A Guide for Litigation

7

MOVING FROM INDIVIDUAL REPRESENTATION TO COLLECTIVE ACTION
Recent class actions challenging as unconstitutional the municipal fines practices that devastated
poor and minority communities in St. Louis County illustrate how representation of individuals in
criminal justice debt matters can provide the foundation for systemic reform and economic justice.
St. Louis County, Missouri is made up of ninety municipalities, each of which enforces its own
municipal code and has its own municipal court.29 In 2013, St. Louis County municipalities took in
hundreds of thousands or even millions of dollars in municipal fines.30 Cities with a high percentage
of African-American residents often collected more in municipal fines than wealthier cities with an
equal or greater number of residents but lower proportion of African-American residents.31 These
results were symptomatic of systemic issues with racial profiling in policing and law enforcement
and unfair court procedures pervading many of the St. Louis County municipalities.32
After several years of hearing clients’ stories and witnessing the corrosive effect of municipal
fines on the lives of low-income people of color, advocates at ArchCity Defenders (“ArchCity”),
a non-profit legal organization based in St. Louis, and St. Louis University School of Law (“SLU
Law”) began to investigate municipal fines and court practices, and implemented a court watch
program.33 After observing over sixty municipal courtrooms and collecting clients’ sworn
statements, ArchCity concluded that St. Louis County utilized municipal fines as revenuegenerating tools and disproportionately imposed such fines on people of color. Furthermore,
the municipal court systems perpetuated an unfair system by carrying out policies that impeded
efforts of the financially disadvantaged to pay their fines or access courtrooms.34
29 

Thomas Harvey et al., ArchCity Defenders: Municipal Courts White Paper 6 (2014), available at http://03a5010
.netsolhost.com/WordPress/wp-content/uploads/2014/11/ArchCity-Defenders-Municipal-Courts-Whitepaper
.pdf (citing County Council Districts (2012), http://stlouisco.com/YourGovernment/CountyCouncil (follow “Council
Districts Map” link)).
30  See ArchCity White Paper, supra n.29, at 11 (citing Office of State Courts Admin., Mo. Judicial Report Supp.: Fiscal
Year 2013 294, available at https://www.courts.mo.gov/file.jsp?id=68905).
31  Ray Downs, ArchCity Defenders: Meet the Legal Superheroes Fighting for St. Louis’ Downtrodden, Riverfront Times, Apr.
24, 2014, http://www.riverfronttimes.com/stlouis/archcity-defenders-meet-the-legal-superheroes-fighting-for-stlouis-downtrodden/Content?oid=2505869.
32  See generally ArchCity White Paper, supra n.29; U.S. Dep’t of Justice, Investigation of the Ferguson Police Department
(Mar. 4, 2015), available at https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/
ferguson_police_department_report.pdf; Radley Balko, How Municipalities in St. Louis County, Mo., Profit from Poverty,
Washington Post, Sept. 3, 2014, https://www.washingtonpost.com/news/the-watch/wp/2014/09/03how-st-louis-countymissouri-profits-from-poverty/.
33  Koran Addo, ArchCity Defenders Saw Problems with Municipal Courts Before Ferguson Turmoil, St. Louis Post-Dispatch,
Apr. 15, 2015, available at http://www.stltoday.com/news/local/metro/archcity-defenders-saw-problems-withmunicipal-courts-before-ferguson-turmoil/article_f1493907-7c8c-55af-a68b-6e36df0c2cae.html; ArchCity White
Paper, supra n.29.
34  Susan Weich, Municipal Court Judges in St. Louis County Are Told to Open Doors, St. Louis Post-Dispatch, July 1, 2014,
available at http://www.stltoday.com/news/local/crime-and-courts/municipal-court-judges-in-st-louis-county-aretold-to/article_e965d081-758d-500a-abb7-a054916edad2.html. See generally Class Action Complaint, Jenkins et al., v.
City of Jennings, No. 4:15-CV-00252-CEJ (E.D. Mo. Feb. 8, 2015), available at http://equaljusticeunderlaw.org/wp/
wp-content/uploads/2015/02/Complaint-Jennings-Debtors-Prisons-FILE-STAMPED.pdf.

8

Confronting Criminal Justice Debt

ArchCity then moved from individual representation to collective action and systematic
advocacy. In 2014, ArchCity and SLU Law authored a letter to the presiding judge of the St.
Louis County Circuit Court, bringing her attention to courtroom accessibility issues. The judge
investigated municipal court practices and urged municipal judges to change the operating
policies in their courts.35 ArchCity next released a white paper detailing the injustices in St. Louis
County’s municipal fees practices. In February 2015—the same month the U.S. Department
of Justice published an in-depth report on its investigation of Ferguson law enforcement—
ArchCity, Equal Justice Under Law (a non-profit civil rights organization) and SLU Law filed class
action suits against the St. Louis County cities of Jennings and Ferguson, alleging that the cities
operated unconstitutional prison and municipal fee schemes that trapped the most vulnerable
members of its community in a spiral of increasing fees and jail time.36 In July 2016, the parties
agreed to a settlement of $4.75 million.37
ArchCity, SLU Law and Equal Justice’s work illustrates one model of collective action and
advocacy in this area. Through a combination of sophisticated advocacy and commitment
to recognizing and giving voice to people harmed by illegal practices, this partnership of
organizations has made an immediate and tangible difference in the lives community residents.

Other practices, such as revocation of probation or criminal contempt, are more familiar to criminal defense attorneys—though again, individuals do not always receive
court-appointed counsel for such actions. And other practices still, such as suspension
of drivers’ licenses, may pose novel issues for attorneys in both groups.
The problems of criminal justice debt are thus situated at the intersection of criminal
and consumer law. Indeed, in many jurisdictions, court officials, police officers, and
probation officers have become de facto debt collectors. Unfortunately, representation
of individuals with criminal justice debt may often fall through the cracks.
Criminal defense attorneys, for their part, are often operating within an indigent defense
system that, to quote former Attorney General Eric Holder, is in a state of “crisis,” due
to wildly inadequate resources and soaring caseloads.38 Attorneys working within that
35 

Susan Weich, Municipal Court Judges in St. Louis County Are Told to Open Doors, St. Louis Post-Dispatch, July 1, 2014,
available at http://www.stltoday.com/news/local/crime-and-courts/municipal-court-judges-in-st-louis-county-aretold-to/article_e965d081-758d-500a-abb7-a054916edad2.html.
36  Class Action Complaint, Jenkins et al., v. City of Jennings, No. 4:15-CV-00252-CEJ (E.D. Mo. Feb. 8, 2015), available at
http://equaljusticeunderlaw.org/wp/wp-content/uploads/2015/02/Complaint-Jennings-Debtors-Prisons-FILE-STAMPED
.pdf.
37  Jenkins et al., v. City of Jennings, 4:15-CV-00252-CEJ (E.D. Mo. Feb. 8, 2015), Settlement Agreement available at
https://secure.dahladmin.com/JENKIN/content/documents/SettlementAgreement.pdf.
38  Eric H. Holder, U.S. Att’y Gen., Speech at Department of Justice’s 50th Anniversary Celebration of the

U.S. Supreme Court Decision in Gideon v. Wainwright (Mar. 15, 2015), available at https://perma

A Guide for Litigation

9

broken system are often focused—quite understandably—on the pressing and important tasks of keeping their clients out of prison and of maximizing their liberty during
periods of court-ordered supervision. Concerns over criminal
justice debt are thus often, at best, a distant second priorCriminal justice debt also
ity. Criminal courts, moreover, may not even provide public
disproportionately impacts
defense or appointed counsel in many criminal justice debt
proceedings.
people and communities of

color. Effective representation
of individuals with criminal
justice debt is especially
important in jurisdictions
with large African-American
and Latino communities.

At the same time, legal services and other consumer attorneys
with experience handling civil debt matters face resource constraints of their own. And Legal Services Corporation funding
rules place some limits on handling cases that are associated
with the criminal justice system (although, as discussed in
Section 4.2, infra, these restrictions should still permit representation in many critical criminal justice debt-related proceedings). More fundamentally, civil legal service providers
may—quite understandably—think of criminal justice debt as a
criminal law issue. They may thus assume—often incorrectly—
that criminal defense attorneys will address the problem.
Ultimately, both communities of practitioners may assume that the other will handle
criminal justice debt representation, when in truth neither is fully focused on this
important set of issues or the problems it can pose for vulnerable clients. For attorneys,
the line between civil and criminal justice is often of substantial importance in both our
jurisprudence and our professional institutions, but it does not matter at all to criminal
justice debtors facing the potentially dire consequences of their inability to pay off their
debt. And far too often, those in need of representation cannot afford to obtain it.

1.4.	 Purpose of This Guide
In light of the problems identified, the purpose of this guide is three-fold.
First, this guide is meant to serve as a primer for criminal and civil attorneys who currently represent clients in matters involving the imposition or collection of court debt,
or who may be prompted to do so by the problems described above. Because the laws
and practices governing criminal justice debt vary from jurisdiction to jurisdiction, this
guide does not attempt to provide an exhaustive treatment of the law, nor is it intended
to serve as a final word on the various issues discussed. Instead, the goal of publishing this guide is to provide a useful starting point for attorneys—by flagging potential approaches, identifying potential defenses and claims, and ultimately assisting
.cc/2XCQ-P5ML.

10

Confronting Criminal Justice Debt

attorneys in issue-spotting a case as they prepare to conduct further research on behalf
of their clients. Accordingly, the guide provides an overview of some of the key constitutional protections that animate the law in this area before proceeding to identify potential tools based in constitutional, criminal, and consumer protection law that attorneys
may use to protect their clients from the severe harms and injustices that can arise from
criminal justice fine and fee practices.
The guide also contains a handful of quick-reference practice tools that are designed
both to help guide practitioners when returning to these topics at the beginning of and
during the course of representation. These tools include three checklists—on criminal
justice debt imposition issues (Section 3.8), collection issues (Section 6.10), and affirmative challenges (Section 7.8)—each of which calls out key questions that attorneys
should consider when identifying potential issues and litigation strategies.
When representing clients with outstanding criminal justice debt, advocates may also
consult the National Consumer Law Center’s consumer law treatises, especially Collection Actions,39 which includes detailed discussions on challenging collection judgments,
protecting debtors’ assets and liberty post-judgment, defending against collection
by federal government agencies, and defending against civil collection actions. Material from this report will be incorporated into future updates to Collection Actions, and
suggestions for additions, corrections, nuances, and new ideas for representation of
individuals with criminal justice debt to include are welcome. Additional National Consumer Law Center volumes that may assist attorneys in representing individuals with
criminal justice debt include Consumer Bankruptcy Law and Practice (11th ed. 2016), Fair
Debt Collection (8th ed. 2014), Credit Discrimination (6th ed. 2013), and Fair Credit Reporting (8th ed. 2013), all updated at http://www.nclc.org/library.
Second, beyond serving as an overview primer, this guide also offers the first in-depth
discussions of how two often thorny areas of consumer protection law—bankruptcy
(see Section 5) and garnishment exemptions (see Section 6)—may apply to help protect
those with criminal justice debt. Our goal in each of these discussions is to lay an initial
foundation for practitioners to build upon when advocating on behalf of clients with
respect to these often complex issues.
Finally, a third, more general goal of this project—and, more broadly, of our collaboration with the Harvard Law School Criminal Justice Policy Program—is to foster communication between attorneys who practice in the criminal and consumer spheres, and
to promote better understanding of the roles each group can play in representing individuals in criminal justice debt matters. Towards this end, a discussion of overcoming the
“advocacy gap” in which criminal justice debt sometimes falls is included in Section 4.2.

39  National

Consumer Law Center, Collection Actions (3d ed. 2014), updated at www.nclc.org/library.

1.5.	 How This Guide Is Structured
Criminal justice debt issues may arise in various settings—including when representing a client in a criminal proceeding; in a defensive posture in a collection proceeding
initiated by municipal or state agencies (or a contractor of such an agency); when seeking relief from the debt or negative consequences thereof (such as a suspended driver’s
license); or when pursuing affirmative litigation challenging illegal collection or imposition practices. This guide addresses key legal issues and discusses a range of strategies
for attorneys in in each of these situations. Specifically, it addresses:


Defending against imposition of criminal justice debt (Section 3)



Defending against actions related to collection of criminal justice debt, including
defending against incarceration for nonpayment based on inability to pay (Section 4)



Obtaining relief from the financial hardship of collection through bankruptcy (Section 5) or exemptions to garnishment (Section 6)



Seeking affirmative relief or systemic reform through assertion of affirmative consumer, constitutional, and civil rights claims (Section 7)

Additionally, as noted above, this guide includes three checklists designed to help advocates apply the discussion in the context of advising and representing a client. The first
checklist, concerning imposition of fines and fees, appears at the conclusion of Section
3. The second, concerning issues related to collection and debt relief, appears at the conclusion of Section 6, following the three sections on collection defenses, bankruptcy,
and protection from garnishment. Finally, the third checklist addresses affirmative litigation, and appears at the conclusion of Section 7.
Advocates may wish to flag these checklists as quick reference guides and to consult
them often, particularly to help orient themselves to the issues and to guide case review
when beginning a new representation. It is important to emphasize, however, that the
most critical aspect of any such representation is to determine the individual client’s
concerns and goals at the outset, as well as his or her financial situation as it may relate
to the debt.

2.  CONSTITUTIONAL BACKDROP: FRAMING CRIMINAL
JUSTICE DEBT QUESTIONS
2.1.	Introduction
The imposition and collection of criminal justice fines and fees raise many complex
issues of local, state, and federal law. Undergirding many of these questions, however,
are a set of foundational constitutional principles that advocates and lawmakers should

12

Confronting Criminal Justice Debt

consistently bear in mind when navigating this area of law. Accordingly, this section
begins with a description of those principles, as they have been laid out by the U.S.
Supreme Court in a string of four decisions from the 1970s and 1980s—Tate v. Short,40
James v. Strange,41 Fuller v. Oregon,42 and Bearden v. Georgia43—as well as in one more recent
decision, Turner v. Rogers.44 These cases deal with the government’s extraordinary power
to collect debts through mechanisms not available to private creditors. And they set out
principles that too many governmental entities have forgotten in the face of pressure
to raise revenue through criminal justice fines and fees. As discussed at the conclusion
of this section, many of the litigation strategies highlighted in subsequent sections of
this guide—even with respect to statutory issues not directly addressed by these foundational cases—are influenced by the holdings and analyses discussed here.

2.2.	 Tate v. Short and Bearden v. Georgia: Debtors’ Prisons and Limits on
Incarceration as an Enforcement Device
The Supreme Court addressed the problem of debtors’ prisons in Tate v. Short.45 Preston
Tate had accumulated $425 in fines arising from various traffic offenses—fines he could
not pay because he was indigent. A local court ordered that Tate be imprisoned pursuant to a Texas law and a Houston ordinance that allowed the government to incarcerate
individuals for nonpayment of fines and costs to “satisfy” the debt at a rate of $5 per day
spent in prison.46 Tate sought to avoid incarceration by arguing that he was too poor to
pay the fines, but the state courts denied him relief, holding that his indigence did not
justify his release.
The United States Supreme Court reversed, holding that imprisoning Tate violated
his rights under the Fourteenth Amendment’s Equal Protection Clause.47 The Court
observed that Texas had adopted “a ‘fines only’ policy for traffic offenses,”48 meaning
that imprisonment was ordinarily not a legally available sanction for a traffic offense—if
the offender could afford to pay the relevant fine. The Court then held that this “statutory ceiling” on the available punishment “cannot, consistently with the Equal Protection Clause, limit the punishment to payment of the fine if one is able to pay it, yet
convert the fine into a prison term for an indigent defendant without the means to pay

40  401

U.S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1971).
U.S. 128, 92 S. Ct. 2027, 32 L. Ed. 2d 600 (1972).
42  417 U.S. 40, 94 S. Ct. 2116, 40 L. Ed. 2d 642 (1974).
43  461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983).
44  564 U.S. 431, 131 S. Ct. 2507, 180 L. Ed. 2d 452 (2011).
45  401 U.S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1971).
46  401 U.S. at 396–397.
47  401 U.S. at 397, 398–399.
48  401 U.S. at 399.
41  407

A Guide for Litigation

13

his fine.”49 Such a policy, after all, does not actually serve the governmental interest in
satisfying its debt: “Imprisonment . . . is imposed to augment the State’s revenues but
obviously does not serve that purpose; the defendant cannot pay because he is indigent
and his imprisonment, rather than aiding collection of the revenue, saddles the State
with the cost of feeding and housing him for the period of his imprisonment.”50
The Court extended the constitutional protection of indigents who owe criminal justice debt in Bearden v. Georgia.51 In 1980, Danny Bearden was charged with burglary and
theft in Georgia. The trial court suspended his sentence and imposed a three-year term
of probation along with a fine of $500 and $250 in restitution.52 Bearden struggled to
pay this debt, as he was laid off from his job shortly after the debt was imposed and
was unsuccessful in his attempts to find new work.53 The trial court revoked Bearden’s
probation for failure to pay, thus sending him to prison.54
The Supreme Court concluded that the revocation of Bearden’s probation—and his
associated incarceration— violated the Equal Protection Clause and due process because
he was imprisoned for no other reason than his failure to pay his fine and restitution,
and without any careful analysis of whether he was actually able to do so. “If the State
determines a fine or restitution to be the appropriate and adequate penalty for the
crime, it may not thereafter imprison a person solely because he lacked the resources to
pay it.”55 The Court went on to explain that although a defendant’s failure to make any
effort to obtain “money in order to pay the fine or restitution may reflect an insufficient concern for paying the debt he owes to society for his crime,” and thus support
incarceration, “it is fundamentally unfair to revoke probation automatically without
considering whether adequate alternative methods of punishing the defendant are
available.”56
In concrete terms, Tate and Bearden stand for the principle that imprisoning a criminal justice debtor solely for his failure to pay and without considering his ability to
49  401

U.S. at 399.
U.S. at 399. Tate followed on and extended the Court’s holding from one year earlier in Williams
v. Illinois, 399 U.S. 235 (1970), which held that the state may not continue to imprison an individual
beyond the maximum sentence term specified by statute because the individual is unable to pay a
fine. 399 U.S. at 243. Tate reaffirmed that “the Equal Protection Clause of the Fourteenth Amendment
requires that the statutory ceiling placed on imprisonment for any substantive offense be the same
for all defendants irrespective of their economic status.’” Tate, 401 U.S. 398-99 (quoting Williams, 399
U.S. 244).
51  461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983).
52  Id. at 662.
53  Id. at 662–663.
54  Id. at 663.
55  Id. at 667–668.
56  Id. at 668–669.
50  401

14

Confronting Criminal Justice Debt

pay or alternative punishment violates the Equal Protection Clause. This principle has
continued relevance, as many courts throughout the country continue to enforce—or
to attempt to enforce—criminal justice debt obligations by using incarceration or the
threat of incarceration as a sanction, without regard to an individual’s actual ability
to pay the debt.57 When this occurs, the constitutional principles set forth in Tate and
Bearden are triggered.

2.3.	 James v. Strange and Fuller v. Oregon: Restrictions on Unduly Harsh or
Discriminatory Means of Collecting Government Debts
In 1972, shortly after deciding Tate, the Court issued James v. Strange,58 which addressed
limitations on tools other than incarceration that the state can use to collect criminal
justice debts. David Strange had been provided appointed counsel in a criminal case
on the basis of his indigence. After he pled guilty, the State of Kansas imposed $500
in indigent defense recoupment fees—that is to say, it ordered Strange to reimburse
the government for a portion of the money the state had spent in affording Strange
his constitutionally guaranteed right to counsel. 59 Strange was ordered to pay this
debt within 60 days, otherwise—according to the Kansas statute—a judgment for that
amount would be issued against him, which could in turn be converted into a lien on
his real estate and could also lead to garnishment or attachment orders being issued
against his wages and other property.60
Notably, however, the statute at issue barred Strange from invoking the vast majority of the defenses and exemptions to such collection mechanisms that were otherwise
provided by Kansas law for civil judgment debtors. For example, unlike judgments
arising from private debts, Strange would not be protected from “restrictions on the
amount of disposable earnings subject to garnishment,” nor would he enjoy protection
“from wage garnishment at times of severe personal or family sickness” or “exemption
from attachment and execution on [his] personal clothing, books, and tools of trade.”61
He would also not be protected from exemptions usually governing the “head of the
family,” including exemptions covering “furnishings, food, fuel, clothing, means of
transportation, pension funds, and even a family burial plot or crypt.”62

57  See,

e.g., American Civil Liberties Union, In for a Penny: The Rise of America’s New Debtor’s Prisons
5 (2010), available at https://www.aclu.org/files/assets/InForAPenny_web.pdf.
58  407 U.S. 128, 92 S. Ct. 2027, 32 L. Ed. 2d 600 (1972).
59  See Gideon v. Wainwright, 372 U.S. 335 (1963) (holding that the Sixth Amendment generally gives
indigent criminal defendants a right to counsel to court-appointed counsel).
60  407 U.S. at 130.
61  407 U.S. at 135.
62  Id.

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15

In considering the Kansas law, the Supreme Court held that efforts to recoup from
criminal defendants some of the costs associated with running the criminal justice
system—including the cost of providing appointed counsel—are not automatically
unconstitutional.63 The Court nonetheless struck down the statutory regime at issue.
It began by remarking upon the Kansas law’s severe punitiveness. “For Kansas to deny
[wage garnishment exemptions] to the once criminally accused is to risk denying him
the means needed to keep himself and his family afloat,” the Court wrote.64 It then
further observed that the discriminatory treatment of indigent defendants versus other
civil judgment debtors did not satisfy the rational basis test.65 In discussing the irrationality of the State’s practice, the Court wrote that it was “difficult to see” why an acquitted
defendant should be denied basic exemptions available to other debtors. As for convicted
defendants, the Court deemed the consequences of denying exemptions perverse:
A criminal conviction usually limits employment opportunities. This is especially true where a
prison sentence has been served. It is in the interest of society and the State that such a defendant,
upon satisfaction of the criminal penalties imposed, be afforded a reasonable opportunity of
employment, rehabilitation and return to useful citizenship. There is limited incentive to seek
legitimate employment when, after serving a sentence during which interest has accumulated
on the indebtedness for legal services, the indigent knows that his wages will be garnished
without the benefit of any of the customary exemptions.66
The Court thus struck down the Kansas regime because it embodied “elements of
punitiveness and discrimination which violate the rights of citizens to equal treatment
under the law.”67
Although the Court did not set out a test for determining precisely when criminal justice debt collection practices are unconstitutionally discriminatory, it did provide a
general background principle that should inform many of the issues addressed in this
guide. As the Court explained, while “a State’s claim to reimbursement may take precedence . . . over the claims of private creditors,” and while “enforcement procedures with
63  407

U.S. at 141 (“[T]he state interests represented by recoupment laws may prove important ones.
Recoupment proceedings may protect the State from fraudulent concealment of assets and false
assertions of indigency. Many States, moreover, face expanding criminal dockets, and this Court has
required appointed counsel for indigents in widening classes of cases and stages of prosecution.
Such trends have heightened the burden on public revenues, and recoupment laws reflect legislative
efforts to recover some of the added costs. . . . We thus recognize that state recoupment statutes may
betoken legitimate state interests.”).
64  407 U.S. at 136.
65  Id. at 140 (stating that the “Equal Protection Clause ‘imposes a requirement of some rationality in
the nature of the class singled out’” and that “[t]his requirement is lacking where, as in the instant
case, the State has subjected indigent defendants to such discriminatory conditions of repayment”).
66  407 U.S. at 139.
67  407 U.S. at 142.

16

Confronting Criminal Justice Debt

respect to judgments need not be identical” between private and public creditors, “[t]
his does not mean . . . that a State may impose unduly harsh or discriminatory terms merely
because the obligation is to the public treasury rather than to a private creditor.”68
By contrast, if a state does not discriminate against criminal justice debtors as compared to civil debtors, then it is far less likely that a general constitutional challenge
to enforcement mechanisms will be successful, as suggested by Fuller v. Oregon,69 a case
that presented a challenge to a different indigent-defense recoupment law just two
years after the Court decided Strange. In Fuller, as in Strange, the Court addressed the
constitutionality of a state statute that allowed the State to recoup the costs it had
expended in providing an indigent defendant counsel. The defendant, Eric Fuller, challenged the statute by invoking James v. Strange. But the Court rejected the comparison,
noting that—unlike the Kansas statute at issue in James—the challenged Oregon statute
afforded the criminal justice debtor the same collection protections enjoyed by civil
judgment debtors. Indeed, the criminal debtor’s protections went even farther, also
affording him “the opportunity to show at any time that recovery of the costs of his
legal defense will impose manifest hardship,”70 in which case the debt would not be
enforced. The Court did not identify any adverse treatment of criminal justice debtors
as compared to private civil debtors, and thus found no discrimination.71
Strange and Fuller both addressed indigent-defense recoupment statutes. But criminal
defendants, of course, may be subjected to a wide array of criminal justice fines and
fees, beyond orders to reimburse the state for the costs of appointed counsel. Some
later cases have questioned the application of these precedents to other criminal justice
debts that may seem less analogous to civil debts or judgments (such as fines, which are
generally thought to serve partially punitive purposes).72 However, the irrationality and
68  407

U.S. at 138–139 (emphasis added).
U.S. 40, 94 S. Ct. 2116, 40 L. Ed. 2d 642 (1974).
70  Id. at 47 (internal quotation marks omitted).
71  The Court dedicated more attention to the question of whether the Oregon recoupment scheme
violated the right to appointed counsel grounded in the Sixth and Fourteenth Amendments because
the prospect of owing fees for appointed counsel may pressure indigent defendants to waive their
right to counsel. See 417 U.S. at 51–54. In determining that the scheme did not violate the right to
counsel, the Court emphasized the various protections for indigent defendants in the statute,
including that “a court may not order a convicted person to pay these expenses unless he is or will be
able to pay them,” that debtors may petition for remission based on financial hardship at any time,
that debtors may not be held in contempt for nonpayment if lacking in means to pay, and the costs
may not be imposed on those who are acquitted. Id. at 45–46, 53–54. In light of these safeguards, the
Court found the statute was “tailored to impose an obligation only upon those with a foreseeable
ability to meet it, and to enforce that obligation only against those who actually become able to meet
it without hardship.” Id. at 54.
72  See, e.g., Fant v. City of Ferguson, 2015 WL 4232917, at *1–3 (E.D. Mo. July 13, 2015) (questioning
whether James v. Strange applied to plaintiffs’ claims regarding collection of fines for traffic and
69  417

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17

perverseness—highlighted in James v. Strange—of subjecting criminal justice debtors to
distinctly harsh collection practices beyond those available in civil debt matters need
not be an argument limited to indigent defense fees. On the contrary, harsh collection
of any criminal debt, regardless of its technical form, can perversely undermine a defendant’s ability to pay the debt or to successfully reenter society following incarceration.
And indeed, claims premised on discriminatory collection of other costs and fines are
currently being pursued in several cases.73 Furthermore, even if Strange were to be limited to criminal justice debts that aim to recoup government expenses, as opposed to
fines imposed for punitive purposes, it bears emphasis that in today’s criminal justice
system, a broad array of fees—beyond merely indigent-defense recoupment—purport
to refund the courts and the justice system for the costs of administering the criminal
process.74 Thus, even on an (unduly) cramped reading of James v. Strange, the case may
provide a basis for broader application of these principles today.

2.4.	 Constitutionally Required Procedural Safeguards in Criminal Justice
Debt Litigation
The preceding sections describe constitutional issues implicated by the tools the government uses to enforce criminal justice debt obligations. The Constitution may also be
implicated if a state fails to afford meaningful procedural safeguards against erroneous
deprivation of liberty for nonpayment, including in the course of making ability-to-pay
determinations.

municipal offenses rather than “merely court fees and costs,” but concluding that plaintiffs should
be allowed to develop the record and that claim should not be dismissed); United States v.
Cunningham, 866 F. Supp. 2d 1050, 1058 (S.D. Iowa 2012) (holding that James did not bar
discrimination against debtor who owed criminal restitution, in part based on the court’s assertion
that restitution is “penal in nature”).
73  See Rodriguez v. Providence Cmty. Corr., Inc., 2016 WL 3351944, at *11–12 (M.D. Tenn. June 9, 2016)
(citing Fant and allowing equal protection claim based on unduly harsh collection practices
applicable to criminal justice debtors in the probation system); Fant v. City of Ferguson, 2015 WL
4232917, at *1–3 (E.D. Mo. July 13, 2015) (on reconsideration, reinstating previously dismissed equal
protection claim challenging “unduly harsh and discriminatory” collection practices applicable to
traffic and municipal fines, as compared to those available to private creditors). See also Class Action
Complaint, Stinnie v. Holcomb, ¶¶ 399–450. (W.D. Va. July 6, 2016) (challenging driver’s license
suspensions for nonpayment of criminal justice debt), available at https://www.justice4all.org/
wp-content/uploads/2016/07/Complaint-Drivers-License-Suspension-for-Court-Debt.pdf.
74 See, e.g., Wash. Rev. Code § 10.01.160 (authorizing courts to require defendants to pay “expenses
specifically incurred by the state in prosecuting the defendant or in administering the deferred
prosecution program . . . or pretrial supervision”); Mich. Comp. Laws § 771.3 (authorizing courts to
set as condition of probation the payment of “expenses specifically incurred in prosecuting the
defendant or providing legal assistance to the defendant and supervision of the probationer”). See
generally Confronting Criminal Justice Debt: A Guide for Policy Reform at 1, 6-11 (2016).

18

Confronting Criminal Justice Debt

Turner v. Rogers75 is an important recent Supreme Court decision on this issue, even
though it does not directly address criminal justice debt. In Turner, the Court held that
a court violates the Due Process Clause when it uses its civil contempt authority to jail
a person for nonpayment of child support payments owed from one private party (a
parent) to another private party (the other parent), without first providing the person
threatened with incarceration either appointed counsel (if indigent) or alternative procedural protections designed to ensure that a meaningful ability-to-pay determination
takes place.76 The Court observed that in a civil proceeding such appropriate alternative
procedural protections may include:
(1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding;
(2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an
opportunity at the hearing for the defendant to respond to statements and questions about his
financial status, (e.g., those triggered by his responses on the form); and (4) an express finding
by the court that the defendant has the ability to pay.77
Notably, however, the Court explicitly left open the possibility that more stringent
safeguards—including a right to appointed counsel for indigent defendants—might be
required when the party seeking to collect is represented by counsel or when the debt is
owed to the state rather than to another private party—both factors that are generally
true when criminal justice debt is at issue.78 And it further noted that heightened procedural protections generally apply in criminal proceedings.79

2.5.	 How Constitutional Principles Guide Analysis of Criminal Justice Debt Issues
Notwithstanding some of the constitutional protections described above, the Supreme
Court has observed that when the government acts as a creditor, it may exercise the
coercive powers of the state in ways that private creditors may not—even if its conduct
in doing so is “[un]wise or [un]desirable” as a matter of policy.80 However, the Supreme
Court has also made clear—in Tate, Bearden, Strange, and Fuller—that there are important
constitutional limits as well. Most essentially, the government may not punish the poor
75  564

U.S. 431, 131 S. Ct. 2507, 180 L. Ed. 2d 452 (2011).
U.S. at 445, 448–449.
77  564 U.S. at 447–448.
78  564 U.S. at 448–449. See also Fant v. City of Ferguson, 107 F. Supp. 3d 1016, 1034 (E.D. Mo. 2015), on
reconsideration, 2015 WL 4232917 (E.D. Mo. July 13, 2015) (finding that plaintiffs in case challenging
Ferguson’s traffic and municipal fine practices “have stated a plausible claim that the City’s failure
to appoint counsel or obtain waivers thereof violated Plaintiffs’ due process rights, particularly in
light of their allegations that they were also not afforded any hearing, inquiry into ability to pay, or
alternative procedural safeguards in connection with their incarceration.”).
79  564 U.S. at 441–443, 445.
80  417 U.S. at 49.
76  564

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19

for their poverty, either by (1) imprisoning them simply because they cannot afford to
pay or (2) irrationally denying them civil protections that they would otherwise have
against private debt collection efforts. In addressing constitutional and statutory questions raised by court fines and fees, these basic principles are too often forgotten. In this
document, they run throughout the legal analysis.

3.  DEFENDING AGAINST IMPOSITION OF CRIMINAL JUSTICE
DEBT: REPRESENTATION DURING A CRIMINAL OR
CIVIL PROCEEDING THAT MIGHT RESULT IN CRIMINAL
JUSTICE DEBT
3.1.	Introduction
The best and most effective way to avoid the adverse consequences of criminal justice
debt is to prevent its imposition in the first place. Accordingly, this chapter addresses
legal issues and strategies related to defending against the imposition of criminal justice debt.
While criminal justice debt can be imposed in a number of ways depending upon the
court and type of debt, it often is imposed at sentencing in criminal cases. Often, counsel’s paramount concern is limiting or preventing incarceration. This too, is likely the
defendant’s main concern—and with good reason: protection of liberty is undoubtedly the fundamental goal in criminal defense. But as the Supreme Court has recently
emphasized, incarceration is not the only issue at stake when a person faces criminal
prosecution.81 Rather, other substantial and indeed life altering consequences can flow
from the criminal process, affecting an individual’s social standing and wellbeing for
years to come. Thus, protecting a client’s liberty—in the truest and broadest sense of
that word—often requires that counsel bear in mind the fines, fees, and surcharges
that could be imposed on criminal defendants at sentencing and at other stages in the
proceedings.
Far from being minor or ancillary consequences of an individual’s encounter with the
criminal justice system, criminal justice debts can create devastating consequences, in
many cases long after the defendant has been released from jail or prison. As discussed
in the introduction and Section 4.1, nonpayment of criminal justice debts may result in
incarceration in many jurisdictions. Payment of criminal justice debt obligations may
81  Cf.

Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) (holding that effective
assistance of counsel under the Sixth Amendment requires a defense attorney to be mindful of—and
advise her client about—the impact that at least certain “collateral consequences” of a criminal
conviction, such as deportation, can have on the defendant).

20

Confronting Criminal Justice Debt

also be treated as a condition of a sentence or of probation, and may thus result in
extended periods of supervision and monitoring until the debts are repaid or incarceration for failure to pay.82 Outstanding criminal justice debts can also lead to a person’s
repeated arrest on debt-related warrants and detention in jail while awaiting a hearing
to explain the reasons for failing to pay—both of which, in addition to being psychologically traumatic, can frustrate employment and other efforts to recover from financial
setback. And individuals with outstanding criminal justice debt may be required to
appear at regular review hearings, which not only entail expenditures related to transportation and childcare, but could also interfere with work and family obligations—
once again perversely impacting wages and financial security for the individual or other
members of the family. The government’s attempts to enforce criminal justice debts
may also result in wage garnishment and other collection actions, aggressive or problematic interactions with debt collection agencies, suspension of drivers’ licenses, and
credit reporting consequences.
Beyond these various consequences, it also bears emphasis that the debt itself can get
larger and more financially burdensome over time, due to mandatory interest, penalties
for late or nonpayment, or other collection costs that accrue from the date of judgment
or missed payment.83 In some jurisdictions, interest may accrue during any prison or
jail term that a defendant serves—a time when a person who is indigent will have little
or nothing to contribute toward repayment.84 As a result, individuals may come out of
jail or prison with significantly higher debts than they had at sentencing.85 And while
82  See,

e.g., American Civil Liberties Union of Washington & Columbia Legal Services, Modern-Day
Debtors’ Prisons: The Ways Court-Imposed Debts Punish People for Being Poor 4 (Feb. 2014) available
at https://aclu-wa.org/sites/default/f iles/attachments/Modern%20Day%20Debtor's%20
Prison%20Final%20%283%29.pdf (describing ACLU and CLS attorney observations that courts in
Washington State “order incarceration for non-payment” even in cases where criminal justice debtors
were “homeless, unemployed, or had mental health issues that prevented them from gaining
employment”); Human Rights Watch, Profiting from Probation 25–27 (2014) (describing “pay only
probation” where defendants are sentenced to probation solely because they cannot afford to pay an
underlying fine and are charged monthly probation fees that may make it more difficult to pay court
debt and extend the probation sentence).
83  See Alaska Stat. § 12.55.051(d); Ariz. Rev. Stat. Ann. § 13-805; Or. Rev. Stat. § 137.183; Va. Code Ann.
§ 19.2-353.5; Wash. Rev. Code § 10.82.090.
84  Cf. Peter Wagner, The Prisoner Index: Taking the Pulse of the Crime Control Industry, Prison Policy Initiative
(Apr. 2003), available at http://www.prisonpolicy.org/prisonindex/prisonlabor.html (minimum
wages for state prisoners, in dollars per day for non-industry work, average $0.93; maximum wages
paid to prisoners by the state averages $4.73 per day).
85  See, e.g., Roopal Patel and Meghna Philip, Brennan Center for Justice, Criminal Justice Debt: A
Toolkit for Action 17 (2012), available at https://www.brennancenter.org/sites/default/files/
legacy/publications/Criminal%20Justice%20Debt%20Background%20for%20web.pdf
(describing woman whose criminal justice debt increased from $36,000 to over $100,000 by the time
of her release from prison due to interest accrued while she was incarcerated and unable to pay).

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21

it is possible to try to defend against the collection of criminal justice debts “on the
back end,” at the time when payment comes due (as discussed in Section 4), the ability to obtain relief from criminal justice debts may often be limited. Accordingly, as is
true with debts and liabilities more generally, avoiding imposition at the outset is the
first—and best—defense.
Unfortunately, until recently, criminal justice debt issues often received little attention
in the sentencing process. But this has started to change. As criminal justice debt practices, their consequences, and their negative impact on poor defendants have become
more salient across the country, there has been growing recognition among criminal
defense attorneys that zealous advocacy requires defending not only against the criminal charges and possible incarceration, but also against the imposition of fines and fees.
This is particularly true for public defenders, whose clients often have little or no means
to pay these debts.
As a matter of both legal advocacy and sentencing strategy, the challenges facing counsel when attempting to forestall or minimize criminal justice debt at the imposition
stage often remain difficult. Unlike the enforcement stage, where the Supreme Court
has set some universal parameters through cases like Bearden,86 there is less constitutional guidance at the imposition stage, and thus less uniformity between legal frameworks. That being said, local case law and statutes often address criminal justice debt
issues at the imposition phase—albeit with a good degree of variability among jurisdictions. Thus, an important first step for defense counsel is to become aware of their local
statutes and court decisions on imposition of criminal justice debts.
This section is not meant to provide an exhaustive or comprehensive survey of the law
across jurisdictions, or of the various scenarios that may arise concerning criminal justice debt imposition. Rather, its goal is to provide a general overview of some of the
main issues and concepts that defense counsel may face at sentencing or other proceedings where criminal justice debts may be imposed, in order to highlight some steps
defense counsel may want to take to limit—or, ideally, altogether prevent—their clients
from receiving criminal justice debts in the first place.
The Section begins (in Section 3.2) by describing the difference between two key types
of criminal justice debts: mandatory debts and non-mandatory debts. It then provides
(in Section 3.3) an overview of various legal frameworks underlying one key tool for
avoiding or limiting criminal justice debt at the imposition stage: the ability-to-pay
inquiry. Section 3.4 then offers guidance on how to navigate some of the legal and strategic complexities of ability-to-pay advocacy. Next, Sections 3.5 and 3.6 discuss alternative tools—and pitfalls—for avoiding or limiting debt imposition through strategic
86  Bearden

22

v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983). See § 2.2, supra.

Confronting Criminal Justice Debt

plea bargaining and through the substitution of community service for direct financial
obligations. Finally, Section 3.7 offers advice regarding communicating with clients
about criminal justice debt imposition issues, and Section 3.8 includes a quick-reference checklist and illustration to help guide attorneys in defending against imposition
of criminal justice debt.

3.2.	 Identifying Relevant Types of Criminal Justice Debt
3.2.1.	 Overview
Before determining how the law applies to certain debts, defense counsel should become
familiar with the different types of debts that can be imposed within their jurisdiction or on a particular defendant. Different types of obligations are imposed for different reasons, and governing statutes or cases may only apply to a certain category of
debt. For example, the State of Washington requires courts to conduct an ability-to-pay
inquiry prior to imposing costs.87 A court recently held, however, that this procedural
protection does not apply to the imposition of fines.88
The general categories and subcategories of criminal justice debt are listed in the introduction to this report (see Section 1.1). Not all criminal justice debts, however, fit neatly
into one of these categories, nor are the terms themselves uniformly applicable terms
of art across jurisdictions. Rather, each jurisdiction may use different terminology to
describe the various criminal justice debt obligations that are locally applicable, using
terms such as “fees,” “assessments,” or “penalties” in potentially different ways than
those terms might be employed elsewhere. As a result, it can sometimes be difficult
to distinguish between the different types of obligations at play in a given jurisdiction, although occasionally a statute will specifically define the obligations to which
it applies. To advocate effectively regarding criminal justice debt imposition, counsel
must first understand the various categories of debt that exist in the local jurisdiction, in
order to ascertain how those categories map onto the governing legal rules and frameworks. Note that imposition of restitution, which generally requires a defendant to
compensate a private party victimized by his crime, raises a distinct set of issues and is
not addressed in this guide.
A more general distinction exists between mandatory and non-mandatory debts, and a
lawyer’s approach to representation can differ significantly between the two. The next
two sections discuss these two categories.

87  State

v. Blazina, 344 P.3d 680 (Wash. 2015).
State v. Clark, 362 P.3d 309 (Wash. Ct. App. 2015) (holding that fine was not a cost subject to
statutory requirement that a court inquire into defendant’s ability to pay before imposition).

88  See

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3.2.2.	 Mandatory Debts
In some jurisdictions, certain criminal justice debts must be imposed automatically, as
a matter of law. Statutes establishing such mandatory debts divest the trial court of any
consideration of the defendant’s ability to pay.89
Mandatory debts may not seem like huge sums of money in isolation. But they can
pile up quickly, especially if multiple mandatory debts are required to be imposed for
each count of conviction in a given case. Similarly, defendants who are simultaneously
being prosecuted for multiple charges at once can see a dramatic rise in their exposure
to mandatory financial obligations. For example, in Washington State, for every felony
judgment and sentence, the court must impose a mandatory $500 victim penalty assessment, regardless of indigence.90 Even a single payment of $500 is a substantial sum for
a poor defendant. But it is not uncommon to see an individual with three, four, or five
felony convictions arising from even just a single incident or course of conduct. At $500
per conviction, a person can thus easily find himself in the hole for $1500 or $2500 in
debt, just in mandatory obligations.
If a criminal justice debt truly is mandatory, there will be few if any options for avoiding
imposition once the triggering conditions (such as conviction) are met. This makes it
all the more important for counsel to ensure that supposedly “mandatory” debts are, in
fact, mandatory. This may seem an obvious point. But in practice, many criminal justice
fines and fees are treated as mandatory as a matter of custom and routine practice by
local actors in the criminal justice system—and thus imposed in every case as a matter
of course—even though the debts may not actually be mandatory as a matter of law in all
circumstances. Thus, a key task for a defense attorney is to conduct thorough research
into the technical legal status of a given potential debt, as closer statutory examination
may reveal that some debts commonly believed to be mandatory are actually waivable
or reducible, or may not be imposed in certain circumstances.
A recent initiative in Washington State illustrates the value of closely examining debt
imposition statutes treated as mandatory. In Washington, a number of criminal justice debts were routinely treated as mandatory by local criminal justice actors—including judges and defense attorneys—even though the statutes establishing such debts
89  See

725 Ill. Comp. Stat. 240/10 (mandatory violent crime victims assistance fund non-waivable at
sentencing); Ky. Rev. Stat. Ann. § 189A.050 (West) (service fee related to specific convictions); Wash.
Rev. Code § 7.68.035 (mandatory victim penalty assessment for each case or cause of action that
includes one or more convictions of a felony or gross misdemeanor); Wash. Rev. Code § 43.43.7541
(mandatory DNA collection fee); W. Va. Code, § 50-3-2; State v. Lundy, 308 P.3d 755, 758–759 (Wash.
Ct. App. 2013) (courts not authorized to consider defendant’s ability pay with regard to mandatory
criminal justice debts).
90  Wash. Rev. Code § 7.68.035.

24

Confronting Criminal Justice Debt

contained provisions expressly precluding imposition of the debts under certain conditions.91 To clear up this confusion, the Washington State Minority and Justice Commission conducted a comprehensive survey that classified statutory debts appropriately.
It then distributed a reference guide to every judge in the state and encouraged trainings for jurists and practitioners alike on the issue, helping to clarify which debts truly
are mandatory—and which are not.92 As similar waiver provisions exist in other states’
laws, assessing whether a fee is truly mandatory is important.93
If, after careful review, counsel concludes that a given debt is indeed mandatory under
the governing statute, the only remaining recourse may be a constitutional challenge,
under either the federal or state constitution. In particular, counsel should consider
whether the statute suffers from the types of infirmities the Supreme Court highlighted
in James v. Strange in holding that a Kansas indigent defense recoupment statute violated
the Constitution, as discussed in Section 2.3. Further, the question of whether and in
what circumstances the Constitution may require a court to determine that a defendant
has ability to pay prior to imposing criminal justice debt is discussed in Section 3.3.94
3.2.3.	 Non-Mandatory Debt
Fortunately, not all criminal justice debt is mandatory. Many criminal justice debt statutes authorize or require courts to waive or choose not to impose the debt, for a variety
of reasons. For example, statutes may make imposition of certain fines or fees fully
discretionary, may make the amount to impose discretionary, or may include specific
exemptions barring the court from imposing debt on certain classes of defendants or
91  For

example, Washington has a statute that requires the court to consider a defendant’s ability to
pay if the defendant has a mental health condition, thus allowing the court to waive debts that
would otherwise be mandatory. See Wash. Rev. Code § 9.94A.777 (provides that “before imposing any
criminal justice debt upon a defendant who suffers from a mental health condition, other than
restitution or the victim penalty assessment . . . a judge must first determine that the defendant,
under the terms of this section, has the means to pay such additional sums.”).
92  See Washington State Supreme Court Minority and Justice Commission, Reference Guide on Legal
Financial Obligations (LFOs) Ordered by Courts of Limited Jurisdiction in Washington State (2015
Update), available at https://www.courts.wa.gov/content/manuals/CLJ%20LFOs.pdf. The
commission’s reports and information about its education and outreach efforts are available at
https://www.courts.wa.gov/?fa=home.sub&org=mjc&page=publications&layout=2&showPub
Tab&tab=pubRes.
93  See, e.g., Cal. Health & Safety Code § 11372.7 (West) ($150 drug program fee mandatory unless court
finds offender lacks the ability to pay); Cal. Penal Code § 290.3 (West) (mandatory fine for certain sex
offense convictions unless defendant lacks the ability to pay); Haw. Rev. Stat. § 706-603(1) (DNA
analysis fee mandatory unless defendant presents evidence of inability to pay); Ind. Code § 33-37-5-9
(court shall assess drug abuse fee, but shall consider the person’s ability to pay in determining the
amount of the fee).
94  Additionally, § 2, supra, provides a more general discussion of constitutional principles pertinent to
criminal justice debts, especially as relates to indigent defendants.

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25

under certain scenarios.95 In the course of reviewing local statutory codes and case law,
counsel should pay close attention to provisions such as these that may offer protection
from imposition of criminal justice debts.
Perhaps the most important restriction that may apply to imposition of criminal justice
debt is a requirement to first determine that the defendant has the ability to pay the
debt. Such ability-to-pay inquiries are critical to the protection of indigent defendants,
many of whom cannot pay and may thus be legally insulated from imposition of debt.
If courts fail to conduct such inquiries, or to conduct them adequately, debts that are
legally non-mandatory as applied to indigent defendants can, for all intents and purposes, become mandatory in practice. It is to this ability-to-pay analysis that the next
two sections turn.

3.3.	 Requirements to Conduct Ability-to-Pay Determinations at Imposition
3.3.1.	 Overview
This section provides an overview of legal requirements to conduct ability-to-pay inquiries at the imposition stage. It begins by examining whether the United States Constitution might require such an inquiry prior to the imposition of costs, especially indigent
defense recoupment fees (see Section 3.3.2), and discusses differences in constitutional
treatment of fines (see Section 3.3.3). It next examines (in Section 3.3.4) statutes that
impose ability-to-pay inquiry requirements, and explains why the opportunity for cancellation or modification of debt at the enforcement stage should not be viewed as a
substitute for challenging imposition of debts based on inability to pay at the imposition stage (see Section 3.3.5). Section 3.4 discusses legal and strategic complications
that can arise in the course of representing clients in such inquiries.
3.3.2.	 Fuller v. Oregon and the Potential Constitutional Requirement to Conduct an Abilityto-Pay Determination Before Imposing Costs
The question of whether the Constitution requires courts to consider a defendant’s ability to pay prior to imposing costs is presently unsettled. Most of the case law addressing
this question focuses on indigent defense recoupment costs, which raise particularly
salient right to counsel concerns, in addition to more general due process and equal
protection concerns. However, as discussed below, the reasoning from the indigent
95  See, e.g., Cal.

Health & Safety Code § 11372.7 (West) ($150 drug program fee mandatory unless court
finds offender lacks the ability to pay); Cal. Penal Code § 290.3 (West) (mandatory fine for certain sex
offense convictions unless defendant lacks the ability to pay); Haw. Rev. Stat. § 706-603(1) (DNA
analysis fee mandatory unless defendant presents evidence of inability to pay); Ind. Code § 33-37-5-9
(court shall assess drug abuse fee, but shall consider the person’s ability to pay in determining the
amount of the fee).

26

Confronting Criminal Justice Debt

defense fee cases should also apply to the many other types of criminal justice costs
that implicate the Sixth Amendment.
A starting point for analysis of this issue is the Supreme Court’s opinion in Fuller v.
Oregon, which, as noted earlier (see Section 2.3), dealt with the constitutionality of an
indigent-defense recoupment statute. Fuller upheld an Oregon indigent defense recoupment statute, distinguishing an earlier case James v. Strange (also discussed in Section
2.3), which had struck down Kansas’s indigent-defense recoupment statute. A key difference between Fuller and Strange was that the Oregon statute upheld in Fuller included
a number safeguards to protect indigent defendants against financial hardship, whereas
the Kansas statute struck down in Strange denied criminal justice debtors even those
protections from hardship that were otherwise afforded to civil debtors.96 Among the
safeguards included in the statute upheld in Fuller were requirements that “a court may
not order a convicted person to pay these expenses unless he is or will be able to pay
them,” that debtors may not be held in contempt for nonpayment if lacking in means
to pay, that debtors receive all the protections applicable to civil judgment debtors, and
that debtors may petition for remission (i.e., cancellation or modification) of the debt
based on financial hardship at any time.97 In view of these statutory protections, the
Court emphasized that the Oregon recoupment statute was
carefully designed to ensure that only those who actually become capable of repaying the state
will ever be obliged to do so. Those who remain indigent or for whom repayment would work
manifest hardship are forever exempt from any obligation to repay.98
In Fuller’s wake, a split has emerged among lower courts as to how to apply the Supreme
Court’s holding to the question of whether courts are required to conduct an ability-topay inquiry before imposing criminal justice debt obligations—and particularly indigent
defense fee obligations. Some courts have observed that the Supreme Court did not
mandate, as a matter of constitutional law, all of the safeguards that were in place in the
Oregon recoupment statute—including the imposition-stage payment ability assessment—but rather simply held that a statute with such safeguards would pass constitutional muster.99 In jurisdictions taking this approach, recoupment statutes may only
96  See §

2.3, supra.
U.S. at 45–47, 53–54.
98  417 U.S. at 47.
99  See, e.g., United States v. Pagan, 785 F.2d 378, 381-82 (2d Cir. 1986) (holding that the imposition of
assessments on the indigent, per se, does not offend the Constitution); State v. Beasley, 580 So. 2d
139, 142 (Fla. 1991) (trial court not required to determine a convicted defendant’s ability to pay
statutorily mandated costs prior to assessing costs unless the applicable statute specifically requires
such a determination); People v. Jackson, 769 N.W.2d 630, 639, 643 (Mich. 2009) (constitution does
not require ability to pay analysis until fee is enforced); State v. Kottenbroch, 319 N.W.2d 465, 472
(N.D.1982) (prior determination of ability to pay not required by Fuller so long as judgment debtor
97  417

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be considered unconstitutional to the extent the mechanisms for enforcing the debt are
unconstitutional, such as if they fail to require a determination of ability to pay prior
to imprisonment for nonpayment as required by Bearden,100 or violate the principles
against discriminatory collection terms discussed in Strange (see 2.3, supra).101
Other jurisdictions, however, see in Fuller more robust constitutional protections, at
least as relates to indigent defense recoupment. In these jurisdictions, courts have held
that some—or even each—of the statutory safeguards outlined in Fuller are in fact constitutionally necessary.102 And in at least one state, courts have expressly found that a
statute’s failure to account for the defendant’s ability to pay at the time of imposition violates the Sixth Amendment.103
While the majority of cases challenging debt at the imposition stage under Fuller have
specifically addressed indigent defense recoupment orders—which raise particularly salient
right to counsel concerns—there are cases that have generally applied some of Fuller’s
reasoning to other types of criminal justice debt.104 Moreover, imposition of other types
had opportunity to present inability to pay before probation was revoked for failure to pay); State v.
Blank, 930 P.2d 1213, 1219–1220 (Wash. 1997) (appellate cost recoupment statute not constitutionally
deficient because it lacked pre-imposition ability to pay inquiry).
100  See § 2.2, supra.
101  See, e.g., State v. Albert, 899 P.2d 103, 109 (Alaska 1995) (concluding that James v. Strange, 407 U.S. 128
(1972), and Fuller do not require a prior determination of ability to pay in a recoupment system that
treats recoupment judgment debtors like other civil debtors); State v. Blank, 930 P.2d 1213, 1219–
1220 (Wash. 1997) (constitutional principles implicated at point of collection and when sanctions
are sought for nonpayment); State v. Curry, 829 P.2d 166, 169 (Wash. 1992) (holding that it was not
unconstitutional for the court to impose a mandatory fee because “there are sufficient safeguards in
the current sentencing scheme to prevent imprisonment of indigent defendants”); People v. Jackson,
769 N.W.2d 630, 643 (Mich. 2009) (same); State v. Beasley, 580 So. 2d 139, 142 (Fla. 1991) (ability-topay inquiry must occur when state seeks to enforce collection). See generally § 2, supra (discussion of
the principles of Fuller and Bearden).
102  See Olson v. James, 603 F.2d 150 (10th Cir. 1979) (Kansas recoupment statute which lacks, among
other safeguards, proceedings to determine the financial condition of the defendant, violated
Fourteenth Amendment); People v. Cook, 407 N.E.2d 56 (Ill. 1980) (a summary decision which
orders reimbursement without affording a hearing with the opportunity to present evidence and be
heard acts to violate an indigent defendant’s right to procedural due process); Fitch v. Belshaw, 581
F. Supp. 273, 275–276 (D. Or.1984) (striking down Oregon statute which allowed recoupment
judgments to be entered without adequate procedures to ensure that defendants would be able to
pay without hardship). See also State v. Tennin, 674 N.W.2d 403, 410 (Minn. 2004) (Sixth Amendment
protections absent in Minnesota cost recoupment statute because no waiver provision either at
imposition or implementation).
103  See State v. Morgan, 789 A.2d 928 (Vt. 2001) (“[W]e hold that, under the Sixth Amendment to the
United States Constitution, before imposing an obligation to reimburse the state, the court must
make a finding that the defendant is or will be able to pay the reimbursement amount ordered . . . .”).
104  See Jones v. State, 360 So. 2d 1158 (Fla. Dist. Ct. App. 1978) (applying Fuller to “payments by a
probationer toward the costs of his supervision”); Brown v. County Comm’rs of Carroll County, 658

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of criminal justice costs frequently implicate similar Sixth and Fourteenth Amendment
concerns regarding burdening the right to counsel discussed in Fuller, as well as other
Sixth Amendment rights. In particular, costs relating to prosecution, defense, case management and adjudication (including filing fees, costs for DNA tests, juror fees, witness
fees, and court personnel fees) that are imposed or increased based on a defendant’s
exercise of his rights to counsel, to trial, or to call witnesses in his defense, have the
effect of burdening those rights, especially for indigent defendants.105 These types of
costs should be subject to many of the same principles and arguments regarding ability-to-pay determinations developed in the indigent defense fee case law. Additionally,
Fourteenth Amendment due process and equal protection arguments, discussed in Section 2, may apply to criminal justice debts beyond indigent defense fees.106
3.3.3.	 Requirements to Conduct Ability to Pay Determinations Prior to Imposition of Fines
The preceding section discussed arguments that ability-to-pay determinations should
be required (as a matter of constitutional law) to orders requiring defendants to pay for
costs associated with the criminal justice system. Fines, however, present a different legal
analysis, as they are generally intended to be punitive, and thus may be guided by a different set of principles. Notably, in San Antonio Independent School District v. Rodriguez, the
U.S. Supreme Court explained that
[t]he Court has not held that fines must be structured to reflect each person’s ability to pay to
avoid disproportionate burdens. Sentencing judges may, and often do, consider the defendant’s
ability to pay, but in such circumstances, they are guided by sound judicial discretion rather
than by constitutional mandate.107
Similarly, in Washington, the state Court of Appeals held that Washington’s ability to
pay requirement in its cost recoupment statute does not apply to fines,108 although the
A.2d 255 (Md. 1995) (applying Fuller in finding that there was no constitutional infirmity in county
seeking reimbursement from an inmate or pretrial detainee for medical costs incurred on his own
behalf where no other source of reimbursement is available); State v. Blank, 930 P.2d 1213 (Wash.
1997) (applying Fuller in case where defendant challenged constitutionality of statute that allowed
court to impose appellate costs, including fees for appointed counsel, on defendant without first
finding he had the ability to pay such costs).
105  See Confronting Criminal Justice Debt: A Guide for Policy Reform at 19-20 (2016) (discussing how criminal
justice costs burden defendant’s Sixth Amendment rights).
106  See Section 2.3, infra (noting that portions of Fuller and Strange addressing discrimination under the
Equal Protection Clause should apply beyond the context of indigent defense recoupment).
107  San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 22, 93 S. Ct. 1278, 36 L. Ed. 2d 16
(1973). See also Williams v. Illinois, 399 U.S. 235, 243, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970) (stating,
in context of initial imposition of a fine, that nothing precludes a judge from imposing on an
indigent, the maximum penalty prescribed by law); State v. Murrell, 499 S.E.2d 870, 876 (W. Va.
1997).
108  State v. Clark, 362 P.3d 309, 312 (Wash. Ct. App. 2015).

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29

court did “[n]onetheless . . . strongly urge trial judges to consider the defendant’s ability
to pay before imposing fines” given the many barriers that criminal justice debts impose
on an offender’s successful reentry back into the community.109
In the absence of a federal constitutional requirement to determine a defendant’s ability to pay prior to imposition of fines, defense counsel should determine whether state
law nonetheless requires or permits such assessment. Indeed, several states have enacted
statutes that require some ability-to-pay analysis at the time of imposition.110 When an
ability to pay determination is required prior to imposition of fines, the discussion in
this guide regarding ability-to-pay hearings is generally applicable to fines as well as to
costs. Additionally, even if a statute is silent as to ability to pay at imposition, it may be
interpreted to allow for defenses to imposition based on inability to pay, and asserting
reasons for inability to pay may convince a court to waive or reduce fines.111
Finally, counsel should bear in mind that fines are uniquely subject to the Eighth
Amendment, which expressly states that “excessive fines” “shall not . . . be imposed.”112
As discussed at Section 7.3.1.5, infra, recent scholarship argues that the Eighth Amendment should be invoked and employed in support of challenges to fines that are excessive as applied to an indigent defendant, even though most cases interpreting the clause
thus far have narrowly limited its application to fines that are grossly disproportionate
to the offense, without regard to the individual defendant’s financial circumstances.113

109  Id.
110  Cal.

Penal Code § 1202.5 (West); Haw. Rev. Stat. § 706-641; 5 Ill. Comp. Stat. 283/20; 730 Ill. Comp.
Stat. 5/5-9-1; Ind. Code § 35-38-1-18; Kan. Stat. Ann. § 21-6612(c); Ky. Rev. Stat. Ann. § 534.030
(West); Me. Rev. Stat. tit. 17-A, § 1302; Mont. Code Ann. § 46-18-231; N.J. Stat. Ann. § 2C:44-2 (West);
Ohio Rev. Code Ann. § 2947.14 (West); 42 Pa. Cons. Stat. § 9726; R.I. Gen. Laws § 12-21-20. See also
Ashton v. State, 737 P.2d 1365 (Alaska Ct. App. 1987) (trial court under mandatory duty to consider
defendant’s earning capacity in connection with any imposition of a fine); Clark v. State, 963 So. 2d
911 (Fla. Dist. Ct. App. 2007) (finding fine imposed by trial court invalid because court failed to
consider defendant’s ability to pay as required by statute); People v. Morrison, 444 N.E.2d 1144 (Ill.
App. Ct. 1983) (finding of ability to pay implicit in imposition of fine where trial court is aware of
facts in the record that would support such a finding); State v. Ramel, 743 N.W.2d 502 (Wis. Ct. App.
2007) (necessary for sentencing court to determine whether a defendant has the ability to pay a fine
if the court intends to impose one).
111  Cf. State v. Packer, 916 P.2d 322 (Or. Ct. App. 1996) (although statute made no mention of defendant’s
ability to pay, assessment of ability required before imposition of compensatory fine).
112  U.S. Const. amend. VIII.
113  See § 7.3.1.5, infra.

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3.3.4.	 Statutory Requirements to Consider Ability to Pay at Imposition
While Fuller v. Oregon may or may not directly require imposition-stage ability-to-pay
inquiries as a matter of constitutional law, the case has still had a significant impact
on this issue. By affirming the Oregon statute that required such an inquiry, the Court
implicitly encouraged states to model the Oregon statutory framework, which does
require ability-to-pay inquiries at the imposition stage as a matter of state law. And
indeed a number of states have taken up this invitation, creating statutory provisions
that similarly require courts to consider a defendant’s ability to pay prior to imposing criminal justice debt. Some statutes contain each of the safeguards included in the
Oregon statute challenged in Fuller; in fact, many mirror the language in the Oregon
statute directly. Moreover, while some statutes apply the requirement only to recoupment of indigent defense costs,114 others apply more expansively to other types of
criminal justice debts as well.115 Thus, counsel should always make sure to check the
statutory provisions in their jurisdiction for each type of criminal justice debt that may
be applied to determine whether an ability-to-pay defense might be available—and if so,
should consider arguing that a client’s inability to pay ought to relieve him of the debt
obligation (see Section 3.4, infra).
Below are excerpts from two statutes that resemble the Oregon recoupment statute—
one pertaining to indigent defense fees, the other to costs in general—which illustrate
the statutory basis for many of the options for securing relief from criminal justice debt
discussed in this guide.

114  See Ala.

Code § 15-12-25; Del. Code Ann. tit. 10, § 8601; Kan. Stat. Ann. § 22-4513; Mont. Code Ann.
§ 46-8-113; N.D. Cent. Code § 12.1-32-08; Vt. Stat. Ann. tit. 13, § 5238.
115  See 730 Ill. Comp. Stat. 5/5-9-1 (fines); Haw. Rev. Stat. § 706-641 (fines); Mich. Comp. Laws § 771.3
(probation costs); Or. Rev. Stat. § 161.665 (general costs); Utah Code Ann. § 77-32a-3 (West) (general
costs); Wash. Rev. Code § 10.01.160 (general costs).

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31

TABLE 1

Examples of Cost Recoupment Statutes

32

STATE STATUTE

ALA. CODE 1975 § 15-12-25
(ALABAMA)

WASH. REV. CODE 10.01.160
(WASHINGTON STATE)

Types of criminal justice
debts that may be imposed.
(See Section 1.1 for definitions of
common types of debts; see Section
3.3.2 for a discussion of Sixth
Amendment concerns that may
animate restrictions on imposition
of criminal justice debts that
burden rights to counsel or to trial)

(a)(1) A court may require a
convicted defendant to pay the
fees of court appointed counsel.
Fees of court appointed counsel
for the purposes of this section,
shall mean any attorney’s fees
and expenses paid an appointed
counsel, contract counsel, or
public defender.

(1) The court may require a
defendant to pay costs. Costs may
be imposed only upon a convicted
defendant…
(2) Costs shall be limited to
expenses specially incurred by the
state in prosecuting the defendant
or in administering the deferred
prosecution program . . . or pretrial
supervision. They cannot include
expenses inherent in providing a
constitutionally guaranteed jury
trial or expenditures in connection
with the maintenance and operation
of government agencies that must
be made by the public irrespective of
specific violations of law. Expenses
incurred for serving of warrants for
failure to appear and jury fees…may
be included in costs the court may
require a defendant to pay.

Requirement that costs only
be imposed on defendants
the court has determined
have current or future ability
to pay. (See Section 3.3.4,
for a discussion of statutory
ability-to-pay requirements at
imposition; see Sections 3.4-3.7
for discussion of strategic and
practical considerations when
ability to pay inquiries are
applicable at imposition.)

(2) The court shall not order a
defendant to pay the fees of court
appointed counsel unless the
defendant is or will be able to
pay them. In determining the
amount and method of payment
of these fees, the court shall
take into account the financial
resources of the defendant and
the nature of the burden that
payment of the fees will impose.

(3) The court shall not order a
defendant to pay costs unless
the defendant is or will be able
to pay them. In determining the
amount and method of payment of
costs, the court shall take account
of the financial resources of the
defendant and the nature of the
burden that payment of costs will
impose.

Confronting Criminal Justice Debt

STATE STATUTE

Requirements relating to
remission of criminal justice
debts after imposition based
on “manifest hardship.” (See
Section 3.3.5 for discussion of
why such remission provisions
are not an adequate substitute
for pre-imposition ability
to pay determinations; see
Section 4.3 for discussion
of seeking remission when
representing clients on whom
a debt has already been
imposed.)

ALA. CODE 1975 § 15-12-25
(ALABAMA)

WASH. REV. CODE 10.01.160
(WASHINGTON STATE)

(2) A defendant who has been
ordered to pay the fees of court
appointed counsel and who is
not in contumacious default
in the payment thereof may at
any time petition the court
which sentenced him or her
for remission of the payment
of these fees or of any unpaid
portion thereof. If it appears to
the satisfaction of the court that
payment of the amount due will
impose manifest hardship on
the defendant or the immediate
family of the defendant, the
court may remit all or part of the
amount due in fees or modify the
method of payment.

(4) A defendant who has been
ordered to pay costs and who is
not in contumacious default in the
payment thereof may at any time
petition the sentencing court for
remission of the payment of costs
or of any unpaid portion thereof.
If it appears to the satisfaction of the
court that payment of the amount
due will impose manifest hardship
on the defendant or the defendant’s
immediate family, the court may
remit all or part of the amount due
in costs, or modify the method of
payment under RCW 10.01.170.

While the Washington statute more broadly includes additional costs, note the similarities between the two. Much like the Oregon statute in Fuller, they both 1) give the court
authority to impose costs on a convicted defendant; 2) define the cost and its parameters; 3) only allow for imposition on those defendants who currently or in the future
will have the ability to pay; 4) require the court to look at the financial circumstances
of the defendant and the nature of the burden that the costs will impose; and 5) require
the court to consider remitting the costs if the defendant requests this relief on the
basis that payment of costs will create a manifest hardship for the defendant—a topic
that is discussed in more detail in Section 4.3, infra.
3.3.5.	 Remission is Not an Adequate Substitute for a Pre-Imposition Ability to Pay Inquiry
Many states have criminal justice debt statues that model the Oregon statute upheld in
Fuller v. Oregon by requiring an ability-to-pay inquiry at the time of imposition while also
providing a defendant an opportunity to seek remission (i.e., cancellation or modification) of a criminal justice debt based on an inability to pay at the time payment is due.
Indeed, some jurisdictions have held that a meaningful remission process is a required
feature of a constitutionally permissible cost recoupment statute.116 Seeking remission
116  See

Olson v. James, 603 F.2d 150, 155 (10th Cir. 1979) (among general guides to be gleaned from
Strange and Fuller are that a convicted person on whom an obligation to repay has been imposed
ought at any time be able to petition the sentencing court for remission of the payment of costs);
Fitch v. Belshaw, 581 F. Supp. 273 (D.C. Or. 1984); State v. Blank, 930 P.2d 1213, 1221 (Wash. 1997)
(statute which imposes obligation to pay the costs of court-appointed counsel which lacks any

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33

for clients who already owe criminal justice debt is discussed in Section 4.3. For present
purposes, however, it is important to stress that counsel should never forgo a chance
to challenge the imposition of a criminal justice debt on the theory that a client who
lacks the ability to pay will be protected by remission down the road. Indeed, some cases
make clear that a trial court cannot avoid its duty to inquire into a defendant’s ability to
pay at the time of sentencing simply because the statute allows for remission at a later
date.117 And there are a number of important practical reasons why remission does not
afford the same protection as an inquiry at the imposition stage:
1.	 An

individual who has no present or likely future ability to pay should never have to
seek remission:  Remission is generally intended for those defendants whom the
court finds to be indigent at the time of sentencing, but with the likely future ability to
pay the costs. If, by contrast, the defendant will likely lack the ability to pay in the
future, then there is no need for remission—the cost simply should not be imposed.
Moreover, a remission hearing is itself a burden and an imposition on the client,
who must not only live with the cloud of a potential debt hanging over his or her
head until the remission hearing is resolved but must also incur the costs of getting
to the remission hearing, which requires traveling to the courthouse and may require
missing work or arranging for childcare.

2.	 No

right to counsel at remission:  At sentencing, the defendant will usually enjoy a
statutory or constitutional right to counsel, which means he will benefit from a
lawyer’s argument as to why he lacks the current and future ability to pay the debt.
At remission, however, there often is no right to counsel, meaning the debtor will
likely have to represent himself. Pro se litigants, however, routinely fare worse than
litigants with even meager professional representation. Furthermore, pro se defendants may not receive notice that remission of costs is an option. Thus, remission
may, in practice, only be available to individuals who are able to obtain help of legal
aid or pro bono counsel in addressing their criminal justice debt post-imposition,
or to those rare non-lawyers who happen to know the details of the jurisdiction’s
cost-recoupment statute (and who are further able to petition the court for remission and to argue that he meets a vague and undefined standard).

3.	 A different standard at remission: 

At sentencing the court must inquire into whether
the defendant is or will be able to pay costs. It cannot order costs if the defendant

procedure to request a court for remission of payment violates due process).
v. Simmons, 249 P.3d 15 (Kan. Ct. App. 2011) (while statute allowing assessment of fees of
defense counsel permits defendant to later request modification of public defender recoupment fees
because of manifest hardship, that process could not replace the trial court’s studied determination
of an appropriate amount in the first place), reversed in part on other grounds by 283 P.3d 212 (Kan.
2012); State v. Morgan, 789 A.2d 928 (Vt. 2001) (appellant not required to seek remission before
appealing ability to pay challenge).

117  State

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Confronting Criminal Justice Debt

typically lacks the current and future ability to pay. Moreover, the burden to prove
ability to pay may lie with the state. At a remission hearing, by contrast, the court
does not have to inquire into ability to pay. Rather, the defendant has the burden of
proving that the costs create a manifest hardship. This standard is generally undefined, giving the defendant no direction on what he must prove to the court.118
Furthermore, in many jurisdictions, the court is not required to remit costs even if
it finds that costs do in fact create a manifest hardship for the defendant. Rather,
remission is left to the court’s general discretion.
In short, remission is an important failsafe for clients who encounter challenges to
repayment following the imposition of debt. And in jurisdictions without an abilityto-pay inquiry at the imposition stage, remission may afford one of the few potential
avenues to relief. But remission is nonetheless a poor and inadequate substitute for
an argument that a debt ought not be imposed in the first place. Counsel who have
the opportunity to argue against the imposition of criminal justice debts at the outset
should always take that first opportunity to do so.

3.4.	 Representing Clients in Ability-to-Pay Hearings
3.4.1.	 General
In jurisdictions that require ability-to-pay determinations at the imposition stage, the
specific rules and processes governing the ability to pay hearing can vary. For example,
different evidentiary presumptions may apply, and different forms of financial evidence
may be deemed admissible or inadmissible. Attorneys representing clients in such proceedings should therefore be sure to familiarize themselves with the relevant statutes,
case law, and court rules for their jurisdiction.
In addition to these jurisdiction-specific issues, this section highlights three key issues
that advocates should consider when representing clients in ability-to-pay hearings: (1)
the timeframe relevant to the consideration; (2) the evidentiary standard that will be
applied; and (3) the strategic challenges inherent in balancing inability to pay arguments against arguments for a reduced sentence of incarceration. Each of these issues
is taken up in the following sections.

118  See, e.g., N.C. Gen. Stat. § 15A-1363 (allowing for remission of fines or costs if it appears to satisfaction

of the court that circumstances which warranted imposition of the fine no longer exist; that it would
otherwise be unjust to require payment; or that proper administration of justice requires resolution
of the case). But see R.I. Gen. Laws § 12-20-10 (allowing for remission of costs based on defendant’s
indigence, with several factors establishing prima facie evidence of indigency, including receipt of
certain public benefits, and outstanding payments totaling $100 or more on child support,
restitution, or counseling costs).

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35

3.4.2.	 The Timeframe Issue: Assessing Whether a Defendant “Is or Will Be Able to Pay”
In many jurisdictions, the ability-to-pay inquiry at the time of imposition is framed
as a question of whether the defendant is or will be able to pay the costs at issue, either
explicitly by the relevant statute or by case law in the jurisdiction. If so, the proceeding
will be more complicated than simply persuading the court that the defendant lacks the
ability to pay the debt on the day he or she is being sentenced. Instead, the court must
consider both the defendant’s current ability to pay and his future ability to pay as well.
Assessing—and thus litigating—an individual’s future ability to pay can be challenging
for multiple reasons. For one, criminal courts are unaccustomed to assessing a defendant’s future ability to pay, as this inquiry rarely arises in other contexts. Indeed, the
two most analogous scenarios for criminal court judges—determining whether a defendant qualifies for appointment of counsel and determining whether a defendant is able
to satisfy criminal justice debt at the collection stage—are both assessed by examining
a person’s ability to pay at the time of the inquiry. Furthermore, there is little substantive guidance in the statutory or governing case law defining “future ability to pay” as a
legal concept. In fact, some courts that have declined to adopt an ability-to-pay inquiry
requirement at the imposition stage have rejected the idea that future ability to pay can
be assessed at all.119
In the absence of concrete guidance as to how to conduct the future ability-to-pay
inquiry, courts often look endlessly to the future and rely on speculation and conjecture to assume that the defendant will inevitably be able to pay the debt obligation at
some point, which will generally incline the judge to conclude that imposing the fine is
appropriate. If confronted with this problem, defense counsel may want to reference
Fuller to help limit the temporal scope of the court’s analysis. In stating that a court
must consider whether the defendant is or will be able to pay the recoupment costs at
issue in that case, the Court offered some guidance as to what constitutes an appropriate analysis of future ability to pay when it stated that the Oregon legislation was
“tailored to impose an obligation only against those with a foreseeable ability to meet it,
and enforce that obligation only against those who actually are able to meet it without
hardship.”120 Defense counsel may be able to use this language to argue that a sentenc119  See State v. Blank, 930 P.2d 1213, 1221 (Wash. 1997) (stating, in context of holding that ability to pay

analysis is not required before appellate costs are ordered, that “common sense dictates that a
determination of ability to pay and an inquiry into a defendant’s finances is not required before a
recoupment order may be entered against an indigent defendant as it is nearly impossible to predict
ability to pay over a period of ten years or longer”); People v. Wiley, 748 N.W.2d 569, 573 (Mich. 2008)
(Mem.).
120  Fuller, 417 U.S. at 54. See also People v. Schronski, 15 N.E.3d 506 (Ill. App. Ct. 2014) (a court may only
order reimbursement of the public defender fee if it finds that the defendant has a reasonably
foreseeable ability to pay).

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Confronting Criminal Justice Debt

ing court ought to consider not what is remotely possible but rather what is reasonably
probable within a foreseeable—i.e., near—future with regards to a defendant’s actual
financial circumstances. Additionally, counsel should assess whether the law in their
jurisdiction provides additional guidance to help guide or cabin any “future ability to
pay” inquiries, such as by requiring written findings as to the reasons a defendant has
a foreseeable ability to pay or by requiring consideration of how specific factors, like
mental or physical disabilities, may impact future earning potential.
3.4.3.	 Evidence of Ability to Pay
In addition to the difficulties that may arise in determining the point(s) in time to
which the court must look when determining ability to pay, there may also be difficulty
in figuring out what evidence a defendant—or, in some jurisdictions, the prosecutor—
needs to present to the court in order to show present and future ability or inability to
pay. Indeed, the phrase “ability to pay” is ambiguous,121 and statutes may not offer any
further definition.122 Absent clear and objective criteria widely varying results may (and
often do) occur, not only between courts—for example across counties in a state—but
also between judges in the same courthouse. Thus, as is true with sentencing advocacy
more generally, counsel should consult colleagues in the relevant jurisdiction to determine what types of arguments or advocacy techniques tend to resonate in the specific
forum at issue, and with individual sentencing judges.
Some jurisdictions, however, do provide at least some statutory authority or appellate
case law to guide the ability-to-pay inquiry, setting out factors that a court should—or
even must—consider.123 Counsel seeking assistance in fleshing out the ability-to-pay
analysis may wish to draw on the following examples from Washington State, Illinois,
and Kansas:
State v. Blazina (Washington State).124  The Washington State Supreme Court recently
addressed the ability-to-pay inquiry in State v. Blazina. The recoupment statute at issue
121  Cf.

State Bans on Debtors’ Prisons and Criminal Justice Debt, 129 Harv. L. Rev. 1024, 1026 n.23 (2015)
(explaining how vagueness in the Bearden holding has limited its protections).
122  For instance, many recoupment statutes, such as the Oregon statute challenged in Fuller, only specify
general requirements that the court take account of the financial circumstances of the defendant
and the nature of the burden that the payment of costs will impose. See, e.g., Ala. Code §§ 14-6-22,
15-12-25; Del. Code Ann. tit. 10, § 8601; Haw. Rev. Stat. § 706-641; Kan. Stat. Ann. § 22-4513; Mich.
Comp. Laws § 771.3; Mont. Code Ann. §§ 46-8-113, 46-18-232; Nev. Rev. Stat. § 178.3975; N.D. Cent.
Code § 29-07-01.1; Or. Rev. Stat. § 151.505; Utah Code Ann. § 77-32a-3 (West).
123  See generally Confronting Criminal Justice Debt: A Guide for Policy Reform at 26-30 (2016) (recommending
that legislators amend criminal justice debt statutes to include robust ability-to-pay safeguards,
including clearly defined standards and definitions applicable to the inquiry, and highlighting some
examples).
124  State v. Blazina, 344 P.3d 680 (Wash. 2015).

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37

in that State provides that the court must conduct a pre-imposition inquiry into the
defendant’s ability to pay, taking account of the financial resources of the defendant
and the nature of the burden that costs will impose.125 However, in conducting this
inquiry, the court in appellants’ cases made no findings on the record. Instead, it simply
signed a boilerplate judgment form that stated the inquiry had been conducted and
found that the defendant had the current and likely future ability to pay.126 The state
Supreme Court deemed this rote recitation insufficient, holding that the sentencing
court must:
do more than sign a judgment and sentence with boilerplate language stating that it engaged
in the required inquiry. The record must reflect that the trial court made an individualized
inquiry into the defendant’s current and future ability to pay.127
Notably, the Court then went on to hold that, “[w]ithin this inquiry, the court must
also consider important factors . . . such as incarceration and a defendant’s other debts,
including restitution, when determining a defendant’s ability to pay.”128 And the court
further stated that trial courts should look to Washington’s civil fee waiver court rule
for additional guidance.129 The official comment accompanying that rule in turn states
that an individual should be determined indigent (and thus not subject to certain
debts) if he or she: (1) is currently receiving a needs-based, means-tested public benefit
such as welfare, food stamps, or SSI; (2) has total household income at or below 125% of
the federal poverty line; (3) has total household income above 125% of the federal poverty line and has “recurring basic living expenses . . . that render him or her without the
financial ability to pay the filing fees and other fees or surcharges for which a request
for waiver is made;” or (4) is subject to “other compelling circumstances” that make the
person unable to pay fees.130
People v. Morrison (Illinois).131  This Illinois case challenged the imposition of a $350
fine on the defendant at sentencing. The defendant appealed, arguing that the facts
did not support the finding that he had the future ability to pay. The Illinois Supreme
Court agreed, and listed facts the court may have been able to elicit from the defendant
125  Wash.

Rev. Code § 10.01.160(3).
v. Blazina, 344 P.3d 680 (Wash. 2015).
127  Id. at 685.
128  Id. at 685 (emphasis added). Other cases have similarly identified pending incarceration as an
important factor to consider when determining future ability to pay. See, e.g., State v. Duncan, 374
P.3d 83 (Wash. 2016) (court holding that trial court’s ability to pay analysis was inappropriate where
court imposed costs of incarceration on defendant serving ninety-six-year prison sentence and would
be released owing well over $1 million in debt).
129  State v. Blazina, 344 P.3d 680, 685 (Wash. 2015).
130  Washington Court Rules GR 34(3).
131  444 N.E.2d 1144 (Ill. App. Ct. 1983).
126  State

38

Confronting Criminal Justice Debt

to show ability to pay, or lack thereof.132 These facts included information regarding the
defendant’s living expenses; whether the defendant’s spouse contributed income to the
household and if so how much; the defendant’s educational background and marketable skills; and any property or other sources of income available to the defendant.133
Absent this information, the court held, there were insufficient facts available to the
trial court to properly impose the fine. The state supreme court thus vacated the fine
and remanded the case for the limited purpose of conducting a hearing to determine
the defendant’s ability to pay the fine, and the amount of the fine.134
State v. Robinson (Kansas).135 In Robinson, the defendant was ordered to pay over $700
in indigent defense fees after conviction. On appeal, he argued that the sentencing
judge violated the Kansas attorney fee recoupment statute by failing to explicitly consider Robinson’s ability to pay and the financial burden that payment would impose
at the time of the assessment. The court agreed, stating that the sentencing court, at
the time of initial assessment, must not only consider the financial resources of the
defendant and the nature of the burden that payment will impose, but also must state
on the record how those factors have been weighed in the court’s decision.136 Without
an adequate record on these points, meaningful appellate review of whether the court
abused its discretion in setting the amount and method of payment of the fees would
be impossible.137
Beyond these three cases,  there are other cases addressing both the imposition and
enforcement stages of criminal justice debt in which courts have offered guidance as
to ability to pay, or held that a reasonable ability to pay analysis must be more than
perfunctory.138 For example, in the context of inquiries into whether a defendant who
failed to pay criminal justice debt was able to pay, an appeals court found that an analysis based solely on imputed rather than actual wages was reversible error.139 Also, before
imposing indigent defense fees, some courts require a finding that circumstances have
changed since the original determination of indigence was made at the time counsel was
132  444

N.E.2d 1144, 1145 (Ill. App. Ct. 1983).

133  Id.
134  Id.
135  132
136  Id.

P.3d 934 (Kan. 2006).
at 940.

137  Id.
138  See,

e.g. People v. Daniels, 28 N.E.3d 216 (Ill. App. Ct. 2015)(vacating public defender fee where trial
court held a perfunctory hearing); State v. Carrasco, 950 P.2d 293, 296 (N.M. Ct. App. 1997) (holding
that the court must make an actual ability-to-pay determination and cannot delegate this
responsibility to the probation officer).
139  See, e.g. Skipper v. State, 189 So. 3d 269, 271(Fla. Dist. Ct. App. 2016) (reversing a probation revocation
for failure to pay restitution where “the State did not offer any evidence to contradict Skipper’s
testimony. Instead, the State simply argued that it believed that Skipper should be able to find work.”).

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39

appointed.140Additionally, some states establish presumptions regarding ability to pay,
though they may or may not be reasonable or helpful as applied to a given defendant’s
situation. For example, in the context of collection (rather than imposition), in Florida
a monthly payment amount is presumed to correspond to the person’s ability to pay if
the amount does not exceed two percent of the person’s net annual income divided by
twelve.141 Unreasonable presumptions of ability to pay may be subject to challenge.142
In addition to payment ability factors established by case law or state statute, counsel
should also note that the federal government has promulgated tools for assessing payment ability—albeit in other contexts—that can be cited as potential supporting authority in the absence of established jurisprudential rules. Two possible examples are the
National Collection Standards employed by the IRS143 and the standards for incomedriven repayment options for federal student loans.144 These existing government standards are designed to balance the repayment of a debt obligation owed to the federal
government against the need to ensure that the debtor and his or her household are
able to meet their basic needs. If a client would be deemed to face a financial hardship
or be authorized not to have to make actual payments under these federally approved
standards, that may make for a persuasive argument to a court that he or she lacks the
ability to pay a court-imposed debt.
3.4.4.	 Strategic Considerations Concerning When to Raise Ability to Pay Arguments
In addition to the complicated legal issues discussed above regarding how to assess an
individual’s present or future ability to pay, there remains a separate—and essential—
strategic consideration facing any defense attorney tasked with making inability-to-pay
arguments in the course of a sentencing hearing: How to highlight a client’s inability to
pay while simultaneously emphasizing the client’s capacity to become a productive, i.e.,
a responsible and perhaps ultimately employable, member of society—a showing often
essential to obtaining a favorable non-monetary sentence.
140  See,

e.g., Museitef v. United States, 131 F.3d 714, 716 (8th Cir. 1997) (holding that after a defendant
has demonstrated an inability to pay counsel fees, the fees can only be recouped if the person has the
ability to pay “in light of the liquidity of the individual’s finances, his personal and familial needs,
or changes in his financial circumstances.”).
141  Fla. Stat. § 28.246 (4).
142  See, e.g., People v. Cook, 407 N.E.2d 56, 57 (Ill. 1980) (finding that presumption that posting of bail
demonstrated an ability to pay could not substitute for a due process hearing to determine if a
defendant was indigent).
143  Internal Revenue Service, Collection Financial Standards (eff. Mar. 28, 2016) available at https://
www.irs.gov/businesses/small-businesses-self-employed/collection-financial-standards.
144  See National Consumer Law Center, Student Loan Law § 3.3.3.3 (5th ed. 2015), updated at www
.library.nclc.org (describing income-driven federal student loan payment plans that set monthly
payments as a function of a limited percentage of income in excess of household poverty guidelines,
including payments of as little as $0).

40

Confronting Criminal Justice Debt

Practically speaking, this can be a fine line to walk. Oftentimes, at sentencing, the defendant will need to show herself in the best light possible in order to request the court’s
leniency or to persuade the court that a long prison sentence is not warranted. The
alternative to a long sentence is usually some form of court supervision, such as probation. Courts, however, are considerably more inclined to impose a shorter sentence
when the defendant shows a likelihood of being a responsible and productive member
of the community—which often includes being employable. Indeed, in many courts,
seeking and maintaining employment may be a standard condition of probation. Thus,
an argument that a person is unlikely to have a steady income not only at the time of
sentencing but also going forward into the foreseeable future may affirmatively undercut the perhaps far more important argument to be made at sentencing: that she is
ready, willing and able to reenter the community and secure a steady income.
One tactic counsel might be able to implement in order to address this inherent tension
is to seek bifurcation of the sentencing hearing in order to separate the determination
of the punitive sentence from the legally distinct inquiry into a defendant’s ability to
pay criminal justice debt. Bifurcation can help focus the court’s attention on these two
separate inquiries and alleviate the dilemma discussed above by separating the “contributions to society” arguments from the “inability to pay” arguments. Bifurcation can
also help to establish a clear record of the arguments and evidence considered for purposes of any subsequent appeal.
If bifurcation is not an option—or even if it is—counsel should also bear in mind that
the strategic dilemma posed in this section can often be navigated by nuanced and
thoughtful sentencing advocacy. After all, in a criminal justice system where upwards of
eighty percent of the defendants are in fact indigent, most judges will be aware that the
defendants appearing before them often face considerable financial hardships. And yet,
many poor defendants are not only sentenced to probation, but complete their terms of
probation successfully—a point judges will also either know or remember if prompted
by defense counsel.
Simply put: being poor and being a productive, contributing member of society—
worthy of a lenient or probationary sentence—are hardly mutually exclusive. Indeed, far
from it. Thus, even without bifurcation as an option, a sentencing hearing is often an
opportunity to humanize a client’s financial hardships and to highlight how the client’s
history of enduring and persevering in the face of those hardships demonstrates resiliency—a
trait that sentencing advocates will often wish to emphasize. Moreover, the sentencing
hearing is an opportunity to educate the court as to the hardships inherent in criminal
justice debt obligations and the perverse consequences that such debts can impose on
a person whom the court and the justice system are supposed to be trying to rehabilitate. In short, by discussing the financial realities facing a person with a criminal

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41

conviction,145 counsel may be able to avoid a lengthy sentence and imposition of debts
at the same time. Even if not, incorporating such arguments into sentencing advocacy
can help to broaden judges’ perspectives in the long run, perhaps softening judges to
clients’ hardships at the enforcement or remission stage, or altering their views on debt
imposition practices over time.
Finally, it is important to note that many courts in jurisdictions with ability-to-pay
inquiry requirements do not—in practice—actually conduct anything more than a perfunctory “hearing” on the issue. In such cases, defense counsel should object to the
imposition of the debt during the hearing in order to preserve the issue for appeal. If
possible, counsel should attempt to state with as much specificity as possible the reasons why the debt ought not be imposed—for example, by citing any authority requiring an inquiry into ability to pay and providing evidence of inability, or by providing
reasons that the fee or fine is inapplicable or unwarranted under the circumstances.
Counsel should be mindful, however, not to jeopardize the outcome of the sentencing hearing itself—for example, by frustrating the judge with an extended (and perhaps
uncustomary) argument about the need to comply with the applicable ability-to-pay
statute, right before the judge sentences the client. Failure to object at all may be considered a waiver and should be avoided,146 but even a brief pro forma objection may be
sufficient to preserve the issue for appeal, without detracting from other sentencing
hearing objectives.
145  There

is substantial information available on the impact of a criminal conviction and the general
circumstances of those who have them. This information may be useful in showing what a
defendant’s life will look like once the conviction is entered, or how it will worsen if the individual
has previous convictions in addition to the current one. For example, the individual may be reentering
society with a limited education, which along with the conviction, will create serious limitations on
future employment prospects and one’s ability to pay criminal justice debts. See Bannon, et. al., supra
at 4 (between 15-27 percent of prisoners expect to live in homeless shelters upon release); John
Schmitt & Kris Warner, Center for Economic and Policy Research, Ex-Offenders in the Labor Market
2 (2010) (felony conviction or time in prison makes individuals significantly less employable). A
person with a criminal conviction is also more likely to have a substance abuse problem or a physical
or mental disability that precludes gainful employment and is also more likely to be forced into a
tenuous housing situation. See National Center on Addiction and Substance Abuse, Columbia
University, Behind Bars II: Substance Abuse and America’s Prison Population 25–26 (2010) (of the
2.3 million prisoners in U.S., 1.5 million meet the DSM-IV medical criteria for substance abuse or
addiction; 32.9% have a mental health disorder).
146  See People v. McCullough, 298 P.3d 860 (Cal. 2013) (holding that a defendant waived his right to
challenge the imposition of a booking fee when he failed to object during the ability to pay
determination). But see People v. Trujillo, 340 P.3d 371, 378 (Cal. 2015) (holding that “in an
appropriate case a defendant’s discovery of trial counsel’s failure properly to advise the defendant,
before the sentencing hearing, of the requirement of a waiver of a court hearing on ability to pay
probation costs may constitute a change of circumstances supporting a postsentencing request for
such a hearing.”).

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Confronting Criminal Justice Debt

BIFURCATION CONSIDERATIONS
In considering whether to seek to bifurcate penalty sentencing and imposition of costs, counsel
should consider:


Whether the client has a strong argument that he or she would be unable to pay the
potential debt that may be imposed:  If a client’s inability-to-pay defense is unlikely to be
successful in avoiding the debt obligation, then it may not be worth risking that such arguments could undermine sentencing arguments that highlight her capacity and eagerness to
obtain employment. Conversely, if a client has a strong shot at both avoiding debt imposition and benefitting from “productive member of the community” arguments, bifurcation
may be worthwhile.



How much discretion the sentencing judge has in setting the length of any incarceration
or supervision terms or conditions that may be imposed:  If the client’s likely sentence is
fairly predictable, either due to the nature of the case or the terms of any applicable plea
bargain, then the risk that inability-to-pay arguments will adversely affect the sentencing
decision may be mitigated. On the other hand, if the sentencing judge has a wide range of
discretion, bifurcation may be worthwhile.



Whether the facts or arguments that would support limiting incarceration or supervision
would undermine an argument for inability to pay, and vice versa:  Inability-to-pay arguments are not always in tension with effective sentencing advocacy, which means bifurcation
may not be necessary in every case. It should be considered, however, when the arguments
for debt waiver and the arguments for a low or a probationary sentence truly are in tension.
For example, a client who has a full-time and well-paying job with a steady work history may
wish to highlight this fact at sentencing to demonstrate his or her reliability—while perhaps
simultaneously wishing to downplay the fact that he or she is, say, in default on child support payments (raising an inference of poor character), or is subject to a series of preexisting criminal justice debt obligations (highlighting a criminal history). Those debts, however,
may constitute the very reason why the client lacks the ability to pay any additional debts.
Bifurcation may be a useful tool in situations similar to this one.

3.5.	 Plea Bargaining and Criminal Justice Debt
In jurisdictions that provide for ability-to-pay determinations at the imposition stage,
it may be common practice for prosecutors to demand waiver of such an inquiry as a
condition of a plea agreement. Plea negotiations are inherently case-specific, and the
proper approach to conducting them will necessarily depend on both the strengths
and weaknesses of the parties’ cases and on the goals and interests that the client is

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43

hoping to maximize. Still, even taking such nuances into account, one point bears special emphasis: Ability-to-pay hearings have value—potentially quite significant value—to
both sides in the plea negotiation, and therefore should not be waived thoughtlessly, or
without obtaining a commensurate concession from opposing counsel.
On the defendant’s side, the potential value of an ability-to-pay hearing is obvious: it
could save the client from the imposition of a potentially sizable criminal justice debt,
and spare her all of the associated difficulties that can arise from years of payment
and potentially devastating enforcement actions. Of course, the value of the hearing
is not static—some defendants will have a better chance at demonstrating inability-topay than others, or will be more sympathetic at a payment capacity hearing. Similarly,
some judges will be more amenable to inability-to-pay arguments than others, which
could affect how valuable the hearing will be perceived by counsel on both sides of the
negotiation. At a minimum, however, it is incumbent on defense counsel to ensure that
her client understands the potential value of the ability-to-pay inquiry, the likelihood of
success, and the potential long-term hardship that could follow from allowing debt to
be imposed without challenge. Only by understanding the value of the hearing can the
client decide whether it is worth waiving the inquiry as part of a plea bargain.
In advising clients with respect to that assessment, it is important for defense counsel
to bear in mind that prosecutors often have an interest in avoiding the ability-to-pay
hearing altogether. For one thing, hearings require time and resources—particularly
if the governing statute puts the burden on the prosecutor to affirmatively establish
the defendants’ ability to pay. Prosecutors, who often also face resource constraints,
may not have the time or energy to assemble the necessary documentation or to prepare arguments for a hearing in every case. They may thus have a strong incentive to
secure waiver of the hearing. Moreover, as a representative of the state, the prosecutor
may have a more direct, budgetary interest in making sure that debts are imposed and
paid—and may even face some institutional pressure in this regard. All of which is to
say that the prosecutor may have a strong incentive to guarantee the imposition of debt
by securing waiver of a payment-ability inquiry from the defendant. And that means
that a defendant who is legally entitled to such a hearing has something of value that
the prosecutor wants—his waiver. Defense counsel should thus be thoughtful in exploring concessions that the client might be able to bargain for in exchange for agreeing to
waive the hearing—e.g., dropped charges, lower sentences, more favorable conditions
of supervision. And counsel should then be sure to discuss with the client whether he
or she in fact prefers receiving those concessions to having the opportunity to argue
against imposition of the debt.
Finally, apart from considering whether and how to bargain over waiver of payment
ability determinations, defense counsel should also more generally consider ways to

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Confronting Criminal Justice Debt

negotiate plea terms that decrease or avoid the risk of excessive fines and fees for the
client. The strategies through which this could succeed are likely to vary by jurisdiction
and judge, but some options may include: (1) pleading guilty to charges or offenses
that carry lower mandatory fees than other charges, or to charges that do not carry
mandatory fees; (2) negotiating the amount of the fines or fees that the prosecutor will
recommend the judge should impose, if the prosecutor has a say in the matter at sentencing; (3) negotiating the content of the factual recitation the prosecutor will proffer
regarding the defendant’s financial circumstances; or perhaps even (4) negotiating that
the prosecutor will either not oppose or will affirmatively endorse a finding by the court
that the defendant is unable to pay fines and fees, either at all or in excess of a negotiated amount.

3.6.	 Community Service as an Alternative to Criminal Justice Debt
If a client is too poor to pay criminal justice debts, one potential option to mitigate this
problem can be to seek alternatives to imposition of the debt. In several jurisdictions,
this can be achieved via statutes that allow a court to convert criminal justice debts into
community service.147 Community service can be an acceptable alternative for some
defendants who lack the ability to pay, especially if the service that may be completed is
meaningful, promotes useful job skills or connections, and is reasonably convenient.148
Community service is not, however, a one-size-fits-all solution for every debtor, and may
not be an appropriate option for a number of reasons:


Physical and mental disabilities and substance abuse issues:  Many defendants have
mental or physical disabilities or substance abuse issues that make community service inappropriate, if not impossible, or that interfere with treatment schedules.149

147 

See, e.g., Cal. Penal Code § 1209.5 (West) (authorizing court to convert fine for infraction to
community service upon showing fine would pose hardship to defendant or his or her family); Kan.
Stat. Ann. § 8-1567 (authorizing community service in lieu of payment of fine for DUI convictions);
Minn. Stat. § 609.101 (allowing for conversion of fine to community service if court finds on record
that person is indigent or that payment could create undue hardship on person or person’s immediate
family); N.M. Stat. Ann. § 31-12-3 (giving court discretion to allow any person who has been
sentenced to pay a fine, or fees and costs to serve a period of time in labor in lieu of them); Okla. Stat.
tit. 11, § 27-122.2 (municipal court authorization to order term of community service in lieu of fine
or in conjunction with imprisonment); Va. Code Ann. § 19-2-354 (allowing defendant assessed fines
or costs to discharge all of part of fines or costs through community service); W. Va. Code § 62-4-16
(allowing municipal judge to substitute community service in lieu of sentence of incarceration or
imposition of fine); Wis. Stat. § 973.05(3)(a) (community service in lieu of fine authorized at
sentencing).
148  For a discussion of elements and benefits of well-designed community service programs, see
Confronting Criminal Justice Debt: A Guide for Policy Reform at 21-22 (2016).
149  See National Center on Addiction and Substance Abuse, Columbia University, Behind Bars II:
Substance Abuse and America’s Prison Population 25–26 (2010) (of the 2.3 million inmates in the

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45



Lack of access to transportation:  Getting to the community service location can be
problematic, especially in rural or other sparsely populated areas.



Time restrictions:  Many indigent clients have work or child care obligations, or need
to be looking for work or stable housing or addressing other immediate needs during
much of the day. Community service options may not be available during the hours
the client is available. It may also be counterproductive to require that an individual
perform community service—especially tasks that cannot translate into marketable
job skills or are not otherwise rehabilitative—while abandoning responsibilities that
better promote accountability and successful reintegration back into the community.



Multiple debt obligations:  Many individuals who cannot afford to pay tickets or
other court costs promptly end up accruing several debts (including traffic and other
municipal infractions) from different counties, all of which may be owed at the same
time. It might not be possible to convert the payment of each of these fines into community service, as it could take a year or more of full time service to pay off debts
throughout a state.

It is also important to realize that community service is not a “risk free” alternative
to criminal justice debt, as a client who is ordered to complete community service as
(for example) a condition of probation, could potentially have his or her probation
revoked—and thus face incarceration—for failure to complete the community service on
time, just as is true when a more formal financial debt is not paid on time. Community
service, moreover, is nontransferable: unlike financial debt obligations, a client cannot
get help from family members or friends to “pay off” community service. An attorney
should always consult his or her client regarding whether community service is a viable
option and should discuss all of the possible pitfalls that could make completion of
community service difficult.
Finally, even for clients for whom community service may be a viable alternative to the
imposition of criminal justice debt, defense counsel should still first attempt to argue that
costs are not appropriate for an indigent defendant in the first place. The best alternative
to the imposition of criminal justice debt is always not having the debt imposed at all.

3.7.	 Communicating with Your Client
Attorneys who represent indigent clients know that their clients are poor. The details
of a client’s financial circumstances, however, are rarely the subject of extensive discussion between the attorney and the client—especially when criminal justice debt issues
are treated as peripheral concerns, or worse, ignored altogether. For all the reasons
nation’s prisons, 1.5 million meet the DSM-IV medical criteria for substance abuse or addiction;
32.9% of inmates have a mental health disorder).

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Confronting Criminal Justice Debt

discussed in this guide, however, criminal justice debt issues should not be allowed
to fall through the cracks. And in order to address them effectively—at the imposition
stage and, subsequently, in the course of potential enforcement proceedings—counsel
must develop a sound understanding of their clients’ financial status.
As with all aspects of criminal defense representation, it is important to build a relationship of trust so that defendants feel comfortable sharing what can often be deeply
personal hardships and struggles. Similarly, as is true of criminal representation more
generally, it is important for counsel to make certain that the client fully understands
the obligations and consequences associated with criminal justice debt, pre- and postconviction. Just as an attorney must advise a defendant about the consequences of violating conditions of probation, parole, community corrections or supervised release,
so too should an attorney be sure to explain the meaning of legal financial obligations
and the consequences that ensue when they are not paid or addressed.150 Defense counsel have a duty to understand the details of the debt obligations themselves. And they
have an obligation to explain those obligations to the defendant, making clear the
defendant’s responsibilities regarding timely payment, the potential consequences of
failure to pay, the processes for making payments during and post-incarceration, and
any potential avenues for remission. A defendant’s liberty and successful re-entry could
depend on these concepts being fully and clearly understood.
For all of these reasons, successful representation regarding criminal justice debt issues
requires open communication between client and counsel. Here are some specific steps
defense counsel should take when communicating with a client about these issues:
First, counsel should incorporate discussion of criminal justice debt issues into their
existing conversations about the nature and consequences of the case—at each
stage of the representation.  Defense counsel are accustomed to talking with their
clients about the substantive criminal law that governs the case, explaining how the
evidence obtained through discovery or investigation relates to the elements of the
offense or potential defenses. Similarly, defense counsel routinely walk clients through
the mechanics of sentencing, describing concurrent versus consecutive sentencing as
well as the details of probation, parole, supervised release, and good-time credit. The
same attention to detail should be paid to the financial consequences of a criminal case.

150 

Cf. American Bar Ass’n, Criminal Justice Standards for the Defense Function, Collateral
Consequences 4-5.4(a) (4th ed.) (“Defense counsel should identify, and advise the client of, collateral
consequences that may arise from charge, plea or conviction. Counsel should investigate consequences
under applicable federal, state, and local laws, and seek assistance from others with greater knowledge
in specialized areas in order to be adequately informed as to the existence and details of relevant
collateral consequences. Such advice should be provided sufficiently in advance that it may be fairly
considered in a decision to pursue trial, plea, or other dispositions.”).

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47

This of course requires, first and foremost, that counsel know the details themselves. As
emphasized in earlier parts of this guide, counsel should study the statutory framework,
case law, and common practices in the jurisdiction in order to determine the range of
criminal justice debts that could be imposed, the consequences for failure to pay, the
process for remission, and the law governing ability to pay. Once the attorney masters
these details, she should then take the time to explain them to the client—clearly and
patiently—just as she would for other aspects of the case.
It is important to bear in mind that for many clients, the details of criminal justice debt
and its consequences will likely be unfamiliar. Moreover, some clients may lack financial
literacy or sophistication. And even sophisticated clients often experience common and
well known psychological traits that cause people to discount the significance of seemingly far off consequences—like future debt. For all these reasons, it is incumbent on
the attorney to make sure that the client fully understands the nature of the criminal
justice debt at issue and the consequences at stake.
It may be helpful along these lines to provide a one or two page summary to the client,
written in plain language (and translated into the client’s native language if necessary).
Such a summary can both help the client understand the criminal justice debt landscape
and also help eliminate any element of surprise. Counsel, public defender agencies, or
legal service providers may also consider developing short summaries that incorporate
illustrations or other visual cues that simplify the criminal justice debt issues into easily
understandable formats, as research shows such illustrations substantially enhance
comprehension.151
Finally, and most importantly, counsel should be sure to continue discussions of criminal justice debt issues throughout the course of representation, folding this aspect of
the case into each significant discussion of the client’s goals and strategic choices. This
includes discussing criminal justice debt issues as they relate to plea negotiation, plea
offer evaluation, sentencing preparation, and post-conviction support and litigation.
Second, counsel should determine the totality of the client’s financial circumstances
early in the representation.  Defense attorneys must understand all aspects of their
clients’ financial circumstances in order to represent them successfully regarding debt
obligations. This requires the attorney to gain understanding of, among other things,
the client’s income (formal and informal), their financial obligations and expenses
(including monthly expenditures and obligations to dependents), their outstanding
debts, and any circumstances (such as medical and mental health needs or physical
151  W.

Howard Levie & Richard Lentz, Effects of Text Illustrations: A Review of Research, 30 Educ. Commc’n
& Tech. 195, 206 (1982) (analyzing 155 studies on the effect of illustrations on reading
comprehension).

48

Confronting Criminal Justice Debt

disabilities) that could impact earning capacity. It may be helpful to develop a chart
or check list of questions that counsel or an intake staff person can go through with
clients. Ask questions that invite specificity rather than asking broad, sweeping, openended questions. For example, instead of asking “what are your monthly expenses,” try
asking:
1.	 How much is your rent?
2.	 How much are your phone and utility bills per month?
3.	 How much do you spend on food each month?
4.	 How much do you spend on household supplies?
5.	 How much do you spend on transportation?
6.	 How much do you spend on daycare?
7.	 How much do you spend on prescriptions or other medical expenses?

Some clients overestimate such expenses while others may underestimate their income,
expenses, assets, debts and other factors that affect their ability to pay criminal justice
debt. It is the duty of defense counsel to gain an accurate understanding of the client’s
circumstances—both in order to advise the client properly and, potentially, to help the
court gain a complete understanding of the client’s current and future ability (or inability) to pay. Counsel should consider having the client sign a generalized release that
authorizes the attorney or her investigator to obtain records detailing the client’s key
financial transactions or account balances, and should further consider incorporating
collection of such information into the standard tasks assigned to an investigator (if
available) prior to sentencing. In short, the more information obtained, the better and
more comprehensive the representation will be.
It is important to stress, however, that the details a client shares about his or her financial circumstances are not only potentially sensitive but are also covered by the attorney client privilege. This is especially important to bear in mind regarding information
about income or other issues that may reflect potentially suspicious activity—such as
unreported taxable income or income gained from potentially illegal activity. Counsel
must always give careful thought to such aspects of a client’s financial profile in order
to avoid inadvertently disclosing information that could expose the client to criminal
liability. And even where criminal liability is not at risk, counsel should never disclose
the details of the client’s finances without the client’s permission.
Third, defense counsel should prepare the client for any criminal justice debt hearings.  As with sentencing hearings more generally, defense counsel will often be in the
best position to steer the proceedings on the client’s behalf, arguing the law and explaining how the circumstances surrounding the client’s financial posture, criminal history
and collateral consequences of a conviction might affect the client’s current and future

A Guide for Litigation

49

ability to pay criminal justice debt. The presiding judge, however, often may direct questions to the defendant him or herself. Defense counsel should prepare the defendant for
these questions, including by practicing common questions and responses in advance.
Counsel should also advise the client to think critically about her answers and advise
her to request a moment to speak with counsel privately should she feel uncomfortable or confused at any point during the hearing. Furthermore, the client should be
informed that if she fails to provide complete information, the court may accept what is
presented as the truth and make imposition determinations based on the information
that is provided.152 Finally, it is important to make sure the client understands that the
ability to pay inquiry is not an assessment of character and that, in most cases, honestly
conveying her financial hardship is likely to help the client—not to result in more jail
time due to inability to pay.
Additionally, it is important to remember that clients present themselves with more
than just their words. It is always in a client’s interest to come to a sentencing hearing presenting themselves—through words, action, and appearance—as a responsible
member of the community. With respect to ability-to-pay inquiries, however, this can
become more complicated, as it may not be in a client’s best interest, for example, to
bring or wear especially expensive or flashy items or clothing to such a hearing. Counsel should not shy away from advising a client even at this level of detail, always being
mindful, of course, to treat the client with dignity and respect.
Fourth and finally, counsel should thoroughly review the criminal justice debt portion
of the judgment and sentence with the client.  The discussion with a defendant after
sentencing typically involves a review of the sentence imposed, conditions of supervised
release, and avenues for appeal, among other things. Defendants are rarely as concerned
about the sometimes long list of costs and fees printed at the end of the judgment
form. However, failure to pay these criminal justice debts can cost defendants dearly,
perhaps even landing them back in jail, or otherwise preventing them from securing
employment and housing, harming their credit, and generally impairing their ability to
rebuild their lives. As a result, defense attorneys should take the time to explain what a
defendant should do to address criminal justice debt upon release from incarceration,
and what collateral consequences flow from failure or inability to pay. Even the simple
act of using a highlighter or a marker to emphasize payment amounts and due dates on
the judgment order can be helpful. And once again, preparing a standard and visually
informative handout to simplify the process can be valuable as well.

152  See, e.g., People v. Green, 1998 WL 1991155 (Mich. Ct. App. June 12, 1998) (holding that the court may

rely on information in the presentencing report, which is presumed to be accurate, when making an
ability to pay determination unless the defendant objects).

50

Confronting Criminal Justice Debt

Finally, if the attorney or the attorney’s office is available to offer ongoing representation for the client in the event issues arise in the course of payment and collection, the
attorney should stress to the client that he or she should contact the attorney at the
first sign of difficulty fulfilling a debt. Oftentimes, a proactive attorney can try to work
things out with a probation officer or other monitoring official to gain more time to
make a payment or to otherwise lend assistance before the situation becomes dire. But
such opportunities for early intervention only arise if the client alerts the attorney to
potential problems in advance, before the attorney is served with notice that the client
is in violation of the payment terms of her sentence.

3.8.	 Checklist for Representation of Clients Facing Imposition of Criminal
Justice Debts
Below is a brief checklist that attorneys may use to help guide representation of clients
facing imposition of criminal justice debts, along with cross references to the sections
in this guide that discuss each issue.
types and amounts of debts might be imposed on your client? (see 1.1, 3.2)
Indigent defense fees?
Other fees or costs?
Surcharges?
Fines?
Restitution?
Other?

aa What







aa Are






the debts mandatory?
Debts that are commonly treated as mandatory may actually be discretionary or
include conditions under which they should not be imposed. (see 3.2.2)
Imposition of non-mandatory debts may be avoided or reduced based on the existence of specified conditions—often including a defendant’s inability to pay—or as
a matter of the court’s discretion. (see 3.2.3)
Consider potential constitutional challenges to imposition of mandatory debts.
(see 3.2.2)

aa If your client is indigent, does the law require an ability to pay analysis prior to impo-

sition of costs or fines?
Review statutory language and case law for your jurisdiction to determine which
types of debt, if any, require an ability to pay analysis prior to imposition. (see 3.3.4)
 If the statutory or case law is indeterminate, consider potential constitutional
arguments that an ability to pay determination is needed. (see 3.3.2, 3.3.3)


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51



Recognize and educate courts as to why post-sentencing remission options may
not be an adequate substitute for a pre-imposition ability to pay determination.
(see 3.3.5)

aa If

an ability to pay analysis is required or permitted, must future ability to pay be
considered?
 If the law clearly requires consideration of future ability to pay, focus on whether
such future ability is reasonably foreseeable for this client. (see 3.4.2)
 If the statute is silent as to the time period to consider for ability to pay, focus on
current ability and financial condition. (see 3.4.2, 3.4.3)

aa If

an ability to pay analysis is required or permitted, what evidence will the court
consider and how?
 As “ability to pay” is often not defined, look not only to statutory authority, but
also to case law in the jurisdiction and beyond, ask colleagues about their experiences with particular judges’ approaches, and consider federal standards applied
to other government debts. (see 3.4.3)
 Potentially relevant factors include:
 Whether the client was deemed indigent for purposes of appointment of counsel
 Employment status and prospects
 Income in relation to federal poverty guidelines for household size
 Comparison of income to necessary expenses
 Debt-to-income ratio
 Receipt of benefits
 Pending incarceration
 Physical or mental disabilities
 Substance abuse issues
 Other debt

aa What is your client’s financial position and what capacity does your client have to pay

such debts?
Open communication with your client about the details of their financial condition is critical to effective representation in ability to pay hearings. (see 3.7)
 Communication regarding the rights, obligations, and risks associated with criminal justice costs is similarly critical. (see 3.7)


aa Is




52

your client interested in pursuing a plea agreement?
Counsel the client regarding the risks of any proposals by the prosecutor to waive
the ability to pay determination as part of a plea deal. (see 3.5)
Consider ways plea bargaining may be used to reduce the likelihood of imposition
of burdensome debts or other negative sentencing outcomes, and discuss such
options thoroughly with the client. (see 3.5)

Confronting Criminal Justice Debt

aa Is





community service an alternative to fines and fees?
If so, determine key facts like hours, accessibility, and type of service.
Community service may be a good option for some individuals, but there are a
number of pitfalls to be aware of and discuss with clients as relates to their specific
circumstances and goals. (see 3.6)
Avoiding service and financial obligations to the state altogether best protects the
liberty of clients who are too poor to pay. (see 3.6)
TABLE 2

Key Steps Defense Counsel Should Take to Address Criminal Justice Debts at Imposition
 Explain court fines
and fees to your
client throughout
representation
 Have knowledge of
applicable statutes,
case law and common
practice
 Prepare short summary

FIRST

SECOND
 Assess your
client’s financial
cicrumstances
 Create a chart or
checklist of specific
questions to ask
client

FOURTH
 Attorney should
argue ability to pay,
NOT THE CLIENT
 Client should still be
prepared to answer
questions from the
court

 Review court
debt obligations
post-judgment and
sentence
 Discuss collateral
consequences for
failure to pay

THIRD

4.  DEFENDING COLLECTION OF CRIMINAL JUSTICE DEBT:
REPRESENTATION OF CLIENTS FACING COLLECTION OR
SANCTIONS FOR NONPAYMENT OF CRIMINAL JUSTICE DEBT,
INCLUDING THOSE FACING THREATS TO THEIR LIBERTY
4.1.	 Introduction
In at least 44 states and the District of Columbia, individuals may be incarcerated for
“willful” nonpayment of criminal justice debts.153 Incarceration may be imposed in a
number of different ways. Among the most common are civil or criminal contempt
orders for violation of the order to pay; sanctions imposed for failure to appear at a debtrelated hearing; revocation of probation or parole where payment was a condition of
supervision; and “pay or stay” policies that offer individuals the “choice” of serving time
in jail in lieu of paying a criminal justice debt.154 Additionally, in many jurisdictions,
153  See

Alexes Harris, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor 50 (2016). For
a summary of all states, see id. at tbl. 4.2, and for a chart of the state law authority relied upon, see id.
at tbl. A2.2.
154  See Alicia Bannon, Mitali Nagrecha & Rebekah Diller, Brennan Center for Justice, Criminal Justice

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53

nonpayment of criminal justice debt can result in governmental sanctions—beyond
imprisonment—that can infringe on vital rights and interests essential to self-sufficiency,
including suspension of driver’s or professional licenses, restrictions on expungement
of criminal records, and denial of the right to vote.155 All attorneys—civil and criminal—
who represent individuals who owe criminal justice debt should educate themselves on
the consequences of missed criminal justice debt payments or hearings related to criminal justice debts in their jurisdiction, and should counsel clients with criminal justice
debt accordingly.
In light of these potential consequences, the most urgent legal needs of criminal justice
debtors will often consist of finding ways to defend against incarceration, forestalling
the loss of an essential right, or quickly reducing the risk of nonpayment consequences
through modification of the debt or payment plan. This section addresses several potential grounds for defending against incarceration and other collection actions related to
criminal justice debts, focusing specifically on modification or remission of criminal justice debts based on financial hardship or other circumstances, constitutional protections
against incarceration for inability to pay, other potential federal and state constitutional
defenses, and statutes of limitations. These approaches are by no means exhaustive.
However, they may often address the most immediate or serious needs of a client facing
incarceration or other severe consequences arising from a difficulty in paying criminal
justice debts. Advocates should also consider whether bankruptcy (discussed below in
Section 5) and exemptions from garnishment, seizure, and offset (discussed in Section
6) might provide relief from collection, as well as other constitutional and statutory
protections discussed below in the context of affirmative claims (see Section 7).

4.2.	 The Advocacy Gap
Before describing the various tools attorneys can use to help protect individuals facing
criminal justice debt collection actions, one critically important point bears emphasis:
Far too often, attorneys are not involved in these proceedings at all. While the Constitution generally precludes ordering imprisonment of a defendant in a criminal prosecution

Debt: A Barrier to Reentry 20–23 (2010), available at http://www.brennancenter.org/sites/default/
files/legacy/Fees%20and%20Fines%20FINAL.pdf. See also Alexes Harris, A Pound of Flesh:
Monetary Sanctions as Punishment for the Poor 50, 104, 115 (2016).
155  See, e.g., Ark. Code. Ann, § 16-90-1404 (driver’s license suspensions); Iowa Code §§ 901C.1, 907.9
(expungement). See also Alicia Bannon, Mitali Nagrecha & Rebekah Diller, Brennan Center for
Justice, Criminal Justice Debt: A Barrier to Reentry 2, 25, 29 (2010), available at http://www
.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf; Allyson
Fredericksen and Linnea Lassiter, Alliance for Justice, Disenfranchised by Debt (2016). See generally
Confronting Criminal Justice Debt: A Guide for Policy Reform at 15-17, 22-23 (2016).

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Confronting Criminal Justice Debt

without the right to appointed counsel for those who cannot afford counsel,156 the
scope and application of the right to the various types of post-sentencing nonpayment
proceedings is complex, varies by jurisdiction, and sometimes depends upon case-bycase factors.157 Additionally, some states do not recognize a right to counsel in civil
contempt proceedings under state law, even when incarceration may result.158
These gaps in the right to appointed counsel for indigent debtors create a significant
representation need in many jurisdictions—a need that all attorneys, civil and criminal,
who represent criminal justice debtors can help fill by educating themselves on criminal
156  See

Scott v. Illinois, 440 U.S. 367, 373–374, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979) (holding “that the
Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent
criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right
to assistance of appointed counsel in his defense”); Gideon v. Wainwright, 372 U.S. 335, 343–345, 83 S. Ct.
792, 9 L. Ed. 2d 799 (1963) (holding right to appointed counsel applies to state criminal prosecutions).
157  See generally 3 Crim. Proc. § 11.2(b) (4th ed. updated Dec. 2015) (addressing when the right to
appointed counsel attaches in criminal proceedings, including the circumstances under which a
Sixth Amendment or due process right to counsel applies in probation and parole revocation
proceedings); Colin Reingold, Pretextual Sanctions, Contempt, and the Practical Limits of Bearden-Based
Debtors’ Prison Litigation, 21 Mich. J. Race & L. 361, 369–372 (2016) (discussing right to appointed
counsel in criminal contempt proceedings and application to contempt proceedings for failure to
appear at a criminal justice debt status or payment hearing). See also Turner v. Rogers, 564 U.S. 431,
441, 448-449, 131 S. Ct. 2507, 180 L .Ed. 2d 452 (2011) (noting that there is generally a Sixth
Amendment right to counsel in criminal contempt proceedings, but holding “that the Due Process
Clause does not automatically require the provision of counsel at civil contempt proceedings to an
indigent individual who is subject to a child support order, even if that individual faces incarceration
(for up to a year),” though explicitly leaving open the possibility of a right to appointed counsel in
civil contempt proceedings in which the debt is owed to the state, especially if the state is represented
by counsel); Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)
(distinguishing probation and parole revocation hearings from criminal trials, and concluding that
“the need for counsel” at such hearings “must be made on a case-by-case basis in the exercise of a
sound discretion by the state authority charged with responsibility for administering the probation
and parole system”).
158  See, e.g., Alicia Bannon, Mitali Nagrecha & Rebekah Diller, Brennan Center for Justice, Criminal
Justice Debt: A Barrier to Reentry 22, nn.32–136 (2010), available at http://www.brennancenter.org/
sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf (noting that some states order
incarceration for nonpayment of criminal justice debt through the civil contempt process and that
“[w]hile most states recognize a right to counsel in civil proceedings that could result in incarceration,
high courts in Florida, Georgia, and Ohio have rejected this notion (although lower courts in Ohio
are divided as to whether the high court’s ruling continues to be good law)”). See also Turner v. Rogers,
564 U.S. 431, 441, 448-449, 131 S. Ct. 2507, 180 L .Ed. 2d 452 (2011) (noting that there is generally a
Sixth Amendment right to counsel in criminal contempt proceedings, but holding “that the Due
Process Clause does not automatically require the provision of counsel at civil contempt proceedings
to an indigent individual who is subject to a child support order, even if that individual faces
incarceration (for up to a year),” though explicitly leaving open the possibility of a right to appointed
counsel in civil contempt proceedings in which the debt is owed to the state, especially if the state is
represented by counsel).

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55

justice debt collection in their jurisdiction and by offering counsel to clients with criminal
justice debt issues. Attorneys can provide critical assistance in defending against incarceration by identifying and pursuing available defenses, as well as by navigating the often
complex procedural processes and identifying types and sources of relevant evidence.
Legal services and other civil attorneys may also play important roles in representing
clients in collection-related proceedings—including, potentially, when incarceration is
a risk. Attorneys with expertise in debt collection actions and in representing indigent
clients may provide a valuable service by defending clients in collection actions or representing them in hearings related to criminal justice nonpayment. Additionally, legal
services and pro bono attorneys may provide valuable representation in affirmative proceedings to modify a debt obligation or repayment plan. In such situations, debtors are
unlikely to have court-appointed counsel or to be able to afford private counsel.

LEGAL SERVICES ATTORNEYS AND CRIMINAL JUSTICE DEBT
Legal Services Corporation (“LSC”) regulations restrict when LSC funds may be used for
representation of clients in relation to criminal matters, but do not preclude representation
in many types of proceedings related to criminal justice debt. Three key restrictions bar use
of LSC funds to represent clients with respect to: (1) “criminal proceedings” in which a client
has been charged with an offense punishable by “death, imprisonment, or a jail sentence,” 45
C.F.R. § 1613; (2) actions collaterally attacking a criminal conviction—such as habeas corpus
proceedings, 45 C.F.R. § 1615; and (3) representation of prisoners and incarcerated pre-trial
detainees in civil litigation, 45 C.F.R. § 1637.
These rules leave open significant opportunities for LSC-funded attorneys to represent clients
in proceedings involving criminal justice debt. Notably, as stated in the preamble to 45 C.F.R.
§ 1613, the “criminal proceedings” rule “does not prohibit legal assistance with respect to
any matters that are not part of a criminal prosecution such as probation revocation after
a sentence has been imposed . . . [or] parole revocation.” 41 Fed. Reg. 38,506 (Sept. 1976)
(emphasis added) (internal citations omitted). (Attorneys must still, however, determine whether
representation in specific instances would violate the limitations in § 1637 on representation
of pre-trial detainees and other incarcerated persons.) The preamble also emphasizes that
because infractions “punishable by no more than a fine” are “basically civil in nature,” and
“because the imposition of a fine may be extremely burdensome for the clients of legal services
programs, the regulation permits representation of defendants in such cases.” 41 Fed. Reg.
38,506 (Sept. 1976). Further, the rules do not preclude use of LSC funding to represent clients
in civil proceedings related to criminal justice debt or in proceedings where the underlying
conviction or culpability is not at issue, and where the client is not in jail or prison.

56

Confronting Criminal Justice Debt

Given these rules, there is one area in which LSC-funded attorneys likely cannot provide
assistance: serving as defense counsel when a client is being prosecuted for an independent
charge of criminal contempt or other criminal violation due to nonpayment or failure to
appear, if incarceration may be ordered. However, the regulations should generally permit
representation in many proceedings, often including: (1) seeking remission or modification of
criminal justice debt or payment plans, (2) defending against probation or parole revocation, (3)
defending against collection actions for criminal justice debt, including garnishment and license
suspension hearings, and (4) defending against civil contempt—although an individualized
analysis will often be necessary to determine whether a given contempt matter is civil or
criminal. See LSC Advisory Opinion EX-1999-05 (Mar. 4, 1999), available at http://www.lsc
.gov/sites/default/files/LSC/laws/pdfs/olaeo/EX-1999-05.pdf.
The National Legal Aid & Defender Association has prepared a detailed analysis and guidance on
LSC-funding restrictions as applied to various criminal justice debt proceedings; the memorandum
is available to members of the Association. See Robin C. Murphy, National Legal Aid & Defender
Association Guidance for LSC Programs RE: Criminal Justice Debt Collection (July 2016).

4.3.	 Seeking Remission or Modification of Criminal Justice Debts or Payment
Plans After Imposition
When individuals are burdened by criminal justice debt, counsel can provide substantial assistance by seeking to have the debts remitted (i.e., cancelled) in whole or in part,
or by seeking to have a payment plan created or modified, based on the client’s financial
situation or other relevant factors. Depending on the jurisdiction, counsel may be able
to modify or cancel a debt in various procedural settings, including (1) in a defensive
proceeding, such as a hearing to show cause for nonpayment; (2) in the course of a
routine administrative hearing, such as a probation or payment status hearing; or (3)
through an affirmative petition to remit the debt.159 Complete cancellation of an obligation to pay a criminal justice debt will often relieve a debtor not only of the threat of
incarceration for nonpayment, but also of other significant threats to liberty and livelihood related to collection of the debt or consequences of nonpayment. Modification of
the amount of a debt or the terms of a payment plan, though not as complete a remedy,
may make it possible for a client to make more manageable payments, avoid imminent
penalties for nonpayment, avoid collection costs, or reduce the amount of time he or
she will remain subject to payment terms.160
159  See,

e.g., Wash. Rev. Code § 10.01.160(4). See also Wash. Rev. Code § 10.01.160(4).
example, Community Legal Services has created a pamphlet on Criminal Court Fines and Fees
in Philadelphia: Know Your Rights that describes how to get an affordable payment plan for local court

160  For

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57

Advocates representing individuals with criminal justice debt should thus be sure to
determine what opportunities for cancellation and modification are available in their
jurisdiction, paying special attention to the procedural rules governing how such claims
may be raised and what criteria the court will apply. Criminal justice debt waiver and
modification opportunities may be provided by statute, court rules, or judicial discretion. Additionally, at least with respect to indigent defense fees, some jurisdictions have
held that a meaningful remission process is a required feature of a constitutionally
permissible cost recoupment statute;161 counsel should consider the availability of such
arguments in their jurisdiction if remission is not otherwise provided.
Although the availability and terms of remission vary by jurisdiction, many state remission statutes are similar in their language. As seen in Table 3, which collects examples
of such statutes, many states authorize courts to remit all or part of court costs, costs
of defense, or costs of incarceration if the debt will impose “manifest hardship” to the
defendant or the defendant’s family, so long as the defendant is not willfully or contemptuously refusing to pay. Other statutes are more explicit about what circumstances merit
remission, and may also expressly state that remission is available for fines as well as costs
in cases of financial hardship. For example, a Georgia statute mandates that all nonrestitution criminal justice debt from misdemeanors or ordinance violations “shall be
waive[d], modif[ied], or convert[ed] . . . upon a determination . . . that a defendant has a
significant financial hardship or inability to pay or that there are any other extenuating
factors which prohibit payment or collection.”162 The Georgia statute further provides a
rebuttable presumption that an individual has a significant financial hardship in several
circumstances, including if he: (i) “earns less than 100 percent of the federal poverty guidelines unless there is evidence that the individual has other resources that might reasonably
be used without undue hardship for such individual or his or her dependents;” (ii) has
certain disabilities; or (iii) has recently experienced a month or more of incarceration.163
Remission may also be authorized under court rules. For example, as discussed in the
companion Guide for Policy Reform at 24-25, the Supreme Court of Michigan recently
enacted court rules that allow Michigan courts to waive all or part of a criminal justice
debt owed, modify an existing payment plan, or impose a payment alternative upon
finding that the debtor is unable to comply with an order to pay without “manifest
hardship.”164
debts—and the benefit of getting such a plan before being subjected to collection costs of 25%. It also
describes when and how supervision fees and bail judgments may be waived or reduced, and has copies
of the forms needed. See https://clsphila.org/learn-about-issues/court-fines-and-costs-guide.
161  See §§2.3, 3.3.5, supra.
162  Ga. Code Ann. § 42-8-102(c)–(e).
163  Id.
164  Michigan Supreme Court, Order No. 2015-12 (May 25, 2016), available at http://courts.mi.gov/

58

Confronting Criminal Justice Debt

TABLE 3

Examples of Remission Statutes
STATE

REMISSION PROVISION

Alabama: Ala.
Code 1975 § 1512- 25(2) (defense
costs)

“A defendant who has been ordered to pay the fees of court appointed counsel and
who is not in contumacious default in the payment thereof may at any time petition
the court which sentenced him or her for remission of the payment of these fees or of
any unpaid portion thereof. If it appears to the satisfaction of the court that payment
of the amount due will impose manifest hardship on the defendant or the immediate
family of the defendant, the court may remit all or part of the amount due in fees or
modify the method of payment.”

Alaska:
Alaska Stat. §
18.85.120(c) (costs
of defense)

“Upon the person’s conviction, the court may enter a judgment that a person for
whom counsel is appointed pay for services of representation and court costs… Upon a
showing of financial hardship, the court … (3) may remit or reduce the balance owing
on the judgment or change the method of payment if the payment would impose
manifest hardship on the person or the person’s immediate family.”

Delaware: Del.
Code Ann. tit. 10,
§ 8601(d) (costs of
defense)

“A defendant who has been required to pay the costs of defense and who is not in
contumacious default in the payment thereof may at any time petition the court for
remission of the payment of such costs, or of any unpaid portion thereof. If it appears
to the satisfaction of the court that payment of the amount due will impose manifest
hardship on the defendant or immediate family, the court may remit all or part of the
amount due in costs, or modify the method of payment.”

Georgia: Ga.
Code Ann. § 428-102(e) (fines,
surcharges, and
any other costs
assessed)

“(e)(1)(B) ’Indigent’ means an individual who earns less than 100 percent of the
federal poverty guidelines unless there is evidence that the individual has other
resources that might reasonably be used without undue hardship for such individual
or his or her dependents.
(e)(1)(C) ’Significant financial hardship’ means a reasonable probability that an
individual will be unable to satisfy his or her financial obligations for two or more
consecutive months.
(e)(2) The court shall waive, modify, or convert fines, statutory surcharges, probation
supervision fees, and any other moneys assessed by the court or a provider of probation
services upon a determination by the court prior to or subsequent to sentencing that a
defendant has a significant financial hardship or inability to pay or that there are any
other extenuating factors which prohibit payment or collection; provided, however,
that the imposition of sanctions for failure to pay such sums shall be within the
discretion of the court through judicial process or hearings.
(e)(3) Unless rebutted by a preponderance of the evidence that a defendant will be able
to satisfy his or her financial obligations without undue hardship to the defendant or
his or her dependents, a defendant shall be presumed to have a significant financial
hardship if he or she:
(A) Has a developmental disability;
(B) Is totally and permanently disabled;
(C) Is indigent; or
(D) Has been released from confinement within the preceding 12 months and was
incarcerated for more than 30 days before his or her release.”

Courts/MichiganSupremeCourt/rules/court-rules-admin-matters/Court%20Rules/2015-12_
2016-05-25_formatted%20order_various%20MCRs-ability%20to%20pay.pdf.
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60

STATE

REMISSION PROVISION

Montana: Mont.
Code Ann. § 468-113(5) (costs of
defense)

“A defendant who has been sentenced to pay costs may at any time petition the court
that sentenced the defendant for remission of the payment of costs or of any unpaid
portion of the costs. If it appears to the satisfaction of the court that payment of
the amount due will impose manifest hardship on the defendant or the defendant’s
immediate family, the court may remit all or part of the amount due in costs or
modify the method of payment.”

Nevada: Nev. Rev.
Stat § 178.3975(3)

“A defendant who has been ordered to pay expenses of the defendant’s defense and
who is not willfully or without good cause in default in the payment thereof may at
any time petition the court which ordered the payment for remission of the payment
or of any unpaid portion thereof. If it appears to the satisfaction of the court that
payment of the amount due will impose manifest hardship on the defendant or the
defendant’s immediate family, the court may remit all or part of the amount due or
modify the method of payment.”

Oregon: Or. Rev.
Stat. § 161.665
(costs)

“A defendant who has been sentenced to pay costs under this section and who is not
in contumacious default in the payment of costs may at any time petition the court
that sentenced the defendant for remission of the payment of costs or of any unpaid
portion of costs. If it appears to the satisfaction of the court that payment of the
amount due will impose manifest hardship on the defendant or the immediate family
of the defendant, the court may enter a supplemental judgment that remits all or part
of the amount due in costs, or modifies the method of payment…”

Utah: Utah Code
Ann. § 77-32a-4
(West) (defense
costs)

“If it appears to the satisfaction of the court that payment of the amount due will
impose manifest hardship on the defendant or his immediate family, the court may
remit all or part of the amount due in costs…”

Vermont: Vt. Stat.
Ann. tit. 13, §
5238(f ) (defense
costs)

“A person who may be or has been ordered to pay all or part of the cost of
representation by co-payment or reimbursement order may at any time petition the
Court making the order for remission of all of the amount or any part thereof. If it
appears to the satisfaction of the Court that payment of the amount due will impose
manifest hardships on the defendant or the defendant’s immediate family or that the
circumstances of case disposition and the interests of justice so require, the Court may
remit all or part of the amount due or modify the method of payment.”

Washington:
Wash. Rev. Code
§ 10.01.160(4)
(costs)

“A defendant who has been ordered to pay costs and who is not in contumacious
default in the payment thereof may at any time petition the sentencing court for
remission of the payment of costs or of any unpaid portion thereof. If it appears to
the satisfaction of the court that payment of the amount due will impose manifest
hardship on the defendant or the defendant’s immediate family, the court may remit
all or part of the amount due in costs…”

West Virginia:
W. Va. Code §
7-8-14(c) (costs of
incarceration)

“A defendant who has been sentenced to pay costs and who is not in willful default in
the payment of the costs may at any time petition the sentencing court for remission
of the payment of costs or of any unpaid portion of the costs. If it appears to the
satisfaction of the court that payment of the amount due will impose manifest hardship
on the defendant or the defendant’s family or dependents, the court may excuse
payment of all or part of the amount due in costs, or modify the method of payment.”

Confronting Criminal Justice Debt

4.4.	 Defending Against Incarceration Based on Inability to Pay
When representing a criminal justice debtor who is facing incarceration as a potential consequence for nonpayment or late payment, it is critical that counsel determine
whether the client has the ability to pay the debt, including through a repayment plan. If
the client is unable to pay, this should be raised as a constitutionally-grounded defense
to incarceration for nonpayment. Depending on the jurisdiction, inability to pay may
also provide a basis for a defense to other sanctions or negative repercussions, and, as discussed above in Section 4.3, it may provide a basis for waiver or modification of the debt.
As discussed above in Section 2.2, Bearden v. Georgia165 makes clear that incarcerating
a defendant for nonpayment of criminal justice debt without careful analysis of his or
her ability to pay and of alternative methods of punishment violates the Fourteenth
Amendment. Further, subsequent case law has made clear that the ability to pay analysis must comport with sufficient safeguards to protect against erroneous deprivation of
liberty.166 This may require provision of counsel or other protections such as notice, a
hearing at which the debtor can present information and respond, and express findings
on ability to pay.167 Further, state procedural protections may exceed federal constitutional minimums.168
Thus, in theory, no individual should be incarcerated for nonpayment without meaningful assessment of ability to pay, and lack of ability to pay should provide a constitutional defense to incarceration. In practice, however, substantial anecdotal accounts
from knowledgeable observers and public defenders report that courts in many jurisdictions often do not engage in the required analysis of ability to pay, or do so in a
cursory or inadequate manner.169 It is therefore critical that advocates vigorously assert

165  461

U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983).
§§ 2.2, 2.4-2.5, supra.
167  See § 2.4, supra (discussing Turner v. Rogers, 564 U.S. 431, 45–49 (2011)).
168  See, e.g., Jordan v. State, 939 S.W.2d 255, 257 (Ark. 1997) (requiring written findings of fact regarding
ability to pay); Greene v. Dist. Ct. of Polk Cnty., 342 N.W.2d 818–821 (Iowa 1983) (requiring a hearing
to determine responsibility for failure to pay prior to commitment and finding that jailing defendant
without notice or an opportunity to explain why he had not satisfied the conditional order was a
denial of due process); Hendrix v. Lark, 482 S.W.2d 427, 431 (Mo. 1972) (remanding indigent
defendant to city court for a hearing to determine her ability to pay the fines and costs, and if unable
to pay immediately, ordering an opportunity for her to pay in reasonable installments based upon
her ability to pay); Gilbert v. State, 669 P.2d 699, 703 (Nev. 1983) (“[B]efore a defendant may be
imprisoned for nonpayment of a fine, a hearing must be held to determine his financial condition,
and an indigent defendant must be allowed reduction of fine or discharge of fine through installment
payments.”).
169  See, e.g., Alexes Harris, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor 120 (2016)
(describing courtroom observations of ability to pay in Washington State, and noting officials who
deemed debtors willful in nonpayment if they received disability or unemployment benefits but did
166  See

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61

this defense if there is risk of incarceration. It is also essential to work with clients to
collect and effectively present evidence of their inability to pay. Moreover, if a judge
indicates an inclination to reject the claim, counsel should demand express findings
and otherwise take all steps to preserve the issue for potential appeal.
While an ability to pay analysis is mandated by the federal constitution, the process
and standards for assessing ability to pay, including any evidentiary presumptions and
guidance regarding financial evidence the court will consider, vary by jurisdiction170 as
well as by type of proceeding.171 However, the general principles and strategies laid out
above in Section 3.4 for defending against imposition of court fines and fees based on
inability to pay are equally applicable to defending against incarceration for nonpayment, and should be considered alongside any jurisdiction-specific laws or court rules.

4.5.	 Other Constitutional Defenses
In addition to the right to an ability to pay assessment prior to incarceration, rooted
in the Fourteenth Amendment, a range of other potential constitutional defenses to
collection or incarceration for nonpayment of criminal justice debts may be applicable.
For convenience, this guide groups discussion of Due Process and other constitutional
challenges to criminal justice debt practices below under “Affirmative Constitutional
Claims.”172 Many of the constitutional issues discussed there may also be raised in a
defensive posture.
Moreover, some potential constitutional protections may be particularly suited to an
individualized defensive proceeding. For example, defendants who face activation of a
suspended prison sentence as a result of nonpayment (where payment was a condition

not make payments, and those who even encouraged begging); Alicia Bannon, Mitali Nagrecha &
Rebekah Diller, Brennan Center for Justice, Criminal Justice Debt: A Barrier to Reentry 21 (2010)
(“For example, a public defender in Illinois observed that rather than evaluating a person’s assets and
obligations, one judge simply asked everyone if they smoked. If they smoked and had paid nothing
since the last court date, he found willful nonpayment and put them in jail without doing any
further inquiry.”)
170  See Confronting Criminal Justice Debt: A Guide for Policy Reform at 27-30 (2016) for discussion of statutory
ability-to-pay schemes, as well as a list of critical elements of such schemes that states should adopt.
See also Tamar R. Birckhead, The New Peonage, 72 Wash. & Lee L. Rev. 1595, 1634 (2015) (“There has
been conflicting case law among the lower courts . . . as to whether the defendant or the state bears
the burden of proving indigence and willfulness.”).
171  See, e.g., Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 637, 108 S. Ct. 1423, 99 L. Ed. 2d 721 (1988)
(explaining that in a contempt proceeding for willful failure to pay that is criminal in nature, a
statute requiring the defendant to carry the burden of persuasion in showing inability to pay would
violate the Due Process Clause because it would be inconsistent with state’s burden to prove guilt,
but that the same statute would be constitutional as applied in a civil proceeding).
172  See § 7.3, infra.

62

Confronting Criminal Justice Debt

of the suspended sentence) may be able to raise a defense based on lack of appointed
counsel during the underlying criminal proceeding. In Alabama v. Shelton, the Supreme
Court concluded that courts may not impose a suspended sentence that may result in
imprisonment, and may not activate a suspended sentence of incarceration, without
having afforded an indigent defendant appointed counsel during the initial criminal
proceeding.173
Some lower courts have applied similar analysis to bar the imposition of a suspended
sentence conditioned on payment of court fines or fees if the defendant did not have
or waive a right to counsel during the underlying criminal proceeding.174 For example,
in United States v. Reilley,175 the trial court imposed a suspended sentence of imprisonment plus a $500 fine on an unrepresented defendant, conditioned on the defendant’s
payment of $100. On appeal, the Tenth Circuit vacated the prison sentence, holding that as a constitutional matter “a conditionally suspended sentence of imprisonment cannot be imposed on a defendant who has been denied counsel.”176 The court
observed that because of the lack of counsel at the underlying criminal proceeding,
the threat of imprisonment “could never be carried out . . . and should be considered
a nullity.”177 Following this reasoning and that in Shelton, one should similarly be able
to argue against activation of a suspended sentence based on nonpayment, if the suspended sentence was originally imposed in a proceeding for which the debtor was not
provided counsel.178

4.6.	 Defenses Based on State Constitutional Violations
Beyond federal constitutional claims, counsel should also explore the possibility that
state constitutions might provide additional—and sometimes novel—protections
against criminal justice debt practices. For example, some states have rejected fines
173  535 U.S. 654, 658, 122 S. Ct. 1764, 152 L. Ed. 2d 888 (2002) (“We hold that a suspended sentence that

may “end up in the actual deprivation of a person’s liberty” may not be imposed unless the defendant
was accorded “the guiding hand of counsel” in the prosecution for the crime charged.”); id. at 662
(concluding also that, “[w]here the State provides no counsel to an indigent defendant” the
constitution does not “permit activation of a suspended sentence upon the defendant’s violation of
the terms of probation”).
174  See generally 3 Crim. Proc. § 11.2(a) (4th ed. updated Dec. 2015) (discussing United States v. Foster,
904 F.2d 20 (9th Cir.1990); State v, Stott, 576 N.W.2d 843 (Neb. Ct. App. 1998), reversed on other
grounds, 586 N.W.2d 436 (Neb. 1998)).
175  948 F.2d 648, 654 (10th Cir. 1991).
176  Id.
177  Id.
178  For further discussion of the constitutional considerations around limits on activation of a
suspended sentence based on failure to provide counsel to indigent defendants at the time of the
underlying conviction, see Alabama v. Shelton, 535 U.S. 654, 122 S. Ct. 1764, 152 L. Ed. 2d 888
(2002).

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63

or fees imposed by judges without specific statutory authority, on the grounds that
such debts violate separation of powers principles. In State v. Lanclos,179 the Louisiana
Supreme Court concluded that an extra assessment added to the fines imposed for
certain traffic citations violated state separation of powers law because it amounted
to a tax, because it was used to fund “police salaries and uniform equipment,” and it
was not directly related to the “administration of justice.”180 A Texas court addressing a similar challenge, however, rejected it after concluding that the fine at issue was
“directly related to the recoupment of costs of judicial resources expended in connection with the prosecution of criminal cases within [the] criminal justice system,” even if
not directly related to the prosecution at issue.181

4.7.	 Statute of Limitations
4.7.1.	 General
When representing a client whose criminal justice debt was imposed many years earlier, counsel should consider whether a statute of limitations on collection actions, a
limit on the period of enforcement of a debt tied to the term or limit of probation, or a
statute of repose that could extinguish the underlying state right to collect, should be
raised as an affirmative defense. The defensive application of statutes of limitations in
criminal justice debt collection proceedings is highly variable across jurisdictions.
This section discusses some of the aspects of statutes of limitations and repose that are
particularly relevant or unique to defending against criminal justice debt collection.
These include arguments that civil judgment periods should be applied if the state law
does not explicitly provide a limitation period for criminal justice debt; possible shortcomings of limitations periods when the government has coercive non-judicial means
to collect; and the potential of statutes of repose and similar limitations periods to stop
non-judicial collection actions.
For more detail on statutes of limitations generally, including issues such as tolling and
revival of the limitations period, see National Consumer Law Center, Collection Actions §
3.6 (3d ed. 2014), updated at www.nclc.org/library.
4.7.2.	 Limitations Periods Applicable to Criminal Justice Debt
Whether a statute of limitations applies to criminal justice debts and, if so, the length
of the limitations period, varies by jurisdiction and sometimes by type of debt. In the

179  980

So. 2d 643, 645 (La. 2008).
654.
181  Peraza v. State, 467 S.W.3d 508, 517 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1188 (2016).
180  Id. at

64

Confronting Criminal Justice Debt

federal system, criminal justice debt can be collected up to twenty years after either
imposition or release from incarceration on the underlying charge, whichever is later.182
On the state level, some jurisdictions have explicitly codified limitations periods for
collection of criminal justice debt.183 These periods may or may not differ from the
jurisdiction’s general limitations period for collection of a civil judgment through garnishment, execution, and other civil processes. The period may also differ depending on
the type of criminal justice debt.184
Alternatively, some states provide by statute that limitations periods do not apply to the
collection of criminal justice debt.185 Additionally, at least one state, Mississippi, provides in its state constitution that no statute of limitations shall apply to civil actions
by the state or a subdivision thereof.186
Still others provide that criminal justice debt shall be “written off ” after a specified
period of time, but do not explicitly reference or supersede the general limitation on
judgments.187 Some states also provide different limitations periods for different kinds
of actions—for example, limiting actions for contempt to two years, while presumably
allowing civil collection of the judgment under the general limitations on judgments
statute for ten years.188
Notwithstanding the above examples, statutory clarification of criminal justice debt
limitations periods remains the exception rather than the rule. Most states do not have
182  18

U.S.C. § 3613(b).
e.g., Conn. Gen. Stat. § 53a-28a (limiting collection period for criminal restitution to ten years
after imposition or after release from incarceration, whichever is longer); N.D. Cent. Code § 29-2622.1 (providing that a criminal judgment imposing fines and costs in North Dakota may be docketed
for up to ten years from the date of judgment, and that once docketed the order is subject to the same
statute of limitations as applies to civil judgments for money); Va. Code Ann. § 19.2-341 (limiting
criminal justice debt collection to ten or twenty years, depending on whether the criminal case was
adjudicated in district or circuit court).
184  Compare N.D. Cent. Code § 29-07-01.1 (six years for indigent defense reimbursement) with N.D. Cent.
Code § 29-26-22.1 (ten years for criminal justice debt generally). See also Conn. Gen. Stat. § 18-85a
(providing a shorter limitations period for collection of costs of incarceration).
185  Cal. Penal Code § 1214(e) (West) (limitations period applicable to civil money judgments does not
apply to court-ordered judgments for fines, restitution, and fees); Utah Code Ann. § 76-3-201.1(11)
(West) (debts arising from criminal judgments, including criminal fines and costs, are not subject to
a limitations period); Vt. Stat. Ann. tit. 13, § 7179 (“A criminal fine owed to the state . . . shall not be
subject to a statute of limitations.”).
186  Miss. Const. art. 4, § 104. Oklahoma’s constitution has been similarly interpreted to bar application
of statutes of limitations in some situations when the state, or its agents, acts to collect on a debt
owed to the state. See State ex rel. Oklahoma Student Loan Auth. v. Akers, 900 P.2d 468, 470 (Okla.
Civ. App. 1995).
187  Iowa Code § 602.8107.
188  W. Va. Code § 62-4-15.
183  See,

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65

limitations statutes that explicitly reference criminal justice debt. In such cases, absent
contrary case law, advocates should argue for application of the general limitations
period for post-judgment actions upon a civil judgment.189 This argument is bolstered
by the fact that, in many states, criminal justice debt obligations are treated as civil judgments for the purposes of post-judgment collection, codifying the common law rule.190
Equal protection arguments may sometimes support the application of the same limitations on collection enjoyed by civil judgment debtors, even in the face of statutory
language to the contrary. To the extent that criminal justice debt is owed to the state
solely by virtue of indigence, for example, for indigent defense fee reimbursement,
imposition of a limitations period more onerous than that which would apply to collection of a civil judgment may be barred under the logic of James v. Strange and Fuller v.
Oregon, discussed in Section 2.3. An example of such reasoning is evidenced in the 1977
Florida case State v. Williams,191 which applied James and Fuller. In Williams, the Florida
Supreme Court struck down a portion of a statute that created a perpetual lien for indigent defense fee reimbursement.192 This provision was found to hold the debtor to a
“different standard of indebtedness than the ordinary [civil judgment] debtor” without
a rational basis, thus depriving these debtors of equal protection of the laws.193 Notably,
at least one state specifically limits the period for civil recovery of indigent defense fee

189  See, e.g., Smith v. Whatcom Cnty. Dist. Ct., 52 P.3d 485 (Wash. 2002) (finding that the general ten-year

limitations period for post-judgment collection of civil judgments applied, in the absence of specific
language referencing criminal justice debt).
190  See Ariz. Rev. Stat. Ann. § 13-805 (criminal justice debt order is “enforceable as any civil judgment”);
Ark. Code Ann. § 16-13-707 (criminal justice debt “may be collected by any means authorized for the
enforcement of money judgments in civil actions”); Conn. Gen Stat. § 53a-28a (criminal justice debt
“may be enforced in the same manner as a judgment in a civil action”); Fla. Stat. § 922.02 (collection
of criminal justice debt is subject to execution in the same manner as a civil judgment); N.D. Cent.
Code § 29-26-21 (criminal justice debt considered to be collectible as a civil judgment); Or. Rev. Stat.
§ 137.450 (criminal justice debt collectible as a civil judgment); Tenn. Code Ann. § 40-24-105
(criminal justice debt collected as a civil judgment); Tex. Code Crim. Proc. Ann. art. 43.07 (West)
(execution shall be collected and return as in civil actions); Tex. Code Crim. Proc. Ann. art. 45.047
(West) (“fine and costs collected by execution against the defendant’s property in the same manner
as a judgment in a civil suit”); Utah Code Ann. § 77-18-6 (West) (criminal justice debt collected in
like manner as a civil judgment, although a separate provision [Utah Code Ann. § 76-3-201.1 (West)]
abolishes statute of limitations); Utah Code Ann. § 77-32a-12 (West) (indigent defense fee
reimbursement judgments collected in the same manner as a civil judgment); Wash. Rev. Code §
10.01.160 (criminal justice debt constitutes a civil judgment); W. Va. Code § 62-5-7 (cost judgments
constitute civil judgments); Wis. Stat. § 973.20 (restitution is a civil judgment); Wis. Stat. § 977.076
(judgments for indigent defense fee reimbursement are a civil judgment); Wyo. Stat. Ann. § 7-13-109
(jail fees constitute a civil judgment); Wyo. Stat. Ann. § 7-9-103 (restitution constitutes a civil judgment).
191  State v. Williams, 343 So. 2d 35, 37–38 (Fla. 1977).	
192  Id.
193  Id. at 38.

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Confronting Criminal Justice Debt

reimbursement to a shorter period of time than criminal justice debt generally.194 There
may also be statutory limits precluding delayed imposition, rather than enforcement,
of indigent defense fees.195
Finally, limitations periods are often subject to tolling (or suspension of the running of
the period) and reviving (restarting the limitations period from the beginning) based
on certain actions by a debtor. In many states, making a payment on a debt can revive
the statute of limitations.196 For more on tolling and reviving of statutes of limitations
in collection actions, see National Consumer Law Center, Collection Actions § 3.6.8 (3d
ed. 2014), updated at www.nclc.org/library.
4.7.3.	 Raising the Defense
Statutes of limitation are affirmative defenses and may be used as grounds for a motion
to dismiss. They are not jurisdictional absent clear statutory language to the contrary.197
In other words, if the defense is not raised, it is waived.198 Moreover, as a general rule,
if a party has two or more remedies to enforce a right, the fact that one is barred by
the statute of limitations does not bar the other, unless the law requires an election of
remedies.199
One potential complication with a statute of limitations argument is that a statute
of limitations generally extinguishes the remedy—usually an enforcement lawsuit—not
the underlying right. For example, in the context of private sector debt collection, while
a debt based on a written contract may only be recoverable by lawsuit for a certain
number of years from breach, the debt itself may continue indefinitely, albeit unenforceable by lawsuit.200 This concept is especially important in regard to collection actions
194  Compare

N.D. Cent. Code § 29-07-01.1 (six years for indigent defense fee reimbursement judgments)
with N.D. Cent. Code § 29-26-22.1 (ten years for criminal justice debt generally).
195  See, e.g., People v. Barger, 158 Cal. Rptr. 825 (Cal. Ct. App. 1979) (applying a three-year statute of
limitations from date of criminal judgment to preclude later order imposing costs of court-appointed
counsel on defendant).
196  See Kan. Stat. Ann. § 60–520(a); Krawczyk v. Centurion Capital Corp., 2009 WL 395458 (N.D. Ill.
Feb. 18, 2009); Martindell v. Bodrero, 63 Cal. Rptr. 774 (Cal. Ct. App. 1967); Portfolio Recovery
Associates, L.L.C. v. Neska, 2010 WL 696649 (Minn. Ct. App. Mar. 2, 2010); Dodeka, L.L.C. v. Campos,
377 S.W.3d 726 (Tex. App. 2012); Citibank S.D. v. Cramer, 139 Wash. App. 1089 (Wash. Ct. App.
2007). See also Davis v. World Credit Fund I, L.L.C., 543 F. Supp. 2d 953 (N.D. Ill. 2008); Davis v.
Unifund CCR Partners, 2008 WL 191272 (N.D. Cal. Jan. 22, 2008). See generally Annotation, Payment
on Account, or Claimed to be on Account, as Removing or Tolling Statute of Limitations, 156 A.L.R. 1082
(1945); National Consumer Law Center, Collection Actions § 3.6.8.3.1 (3d ed. 2014), updated at www
.nclc.org/library.
197  54 C.J.S. Limitations of Actions §§ 20–21 (2010).
198  United States v. Kwai Fun Wong, 135 S. Ct. 1625, 191 L. Ed. 2d 533 (2015).
199  54 C.J.S. Limitations of Actions § 22 (2010).
200  See Huertas v. Galaxy Asset Mgmt., 641 F.3d 28 (3d Cir. 2011); Freyermuth v. Credit Bureau Services,

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67

pursued by governmental actors, given that the range of collection tools at the state’s
disposal—including driver’s license suspensions and bars on expungement relief—is
usually far broader than that available to the private sector civil judgment creditor.
Additionally, some jurisdictions use non-judicial administrative garnishment procedures.201 States may argue that these sanctions, denials of relief, and alternative garnishment procedures can be imposed indefinitely, even if they cannot collect the amounts
through the judicial remedies barred by a statute of limitations.
This wider problem created by the expanded set of remedies afforded to the state should
not be confused with the issue of a debt collector threatening to collect on a debt when
the remedy itself is barred. Some federal circuit courts have found such demands for
payments of debt beyond the applicable statute of limitations to be actionably deceptive
under the Fair Debt Collection Practices Act (FDCPA), even when the demands did not
explicitly threaten an illegal action (for example, filing a lawsuit).202 In part, these courts
reached these holdings by applying the “least sophisticated consumer” standard—in
other words, the recipients of these letters would read them as implicitly threatening to
bring a lawsuit. Other circuit courts have rejected such liability, arguably by misapplying the least sophisticated consumer standard, finding that the demand for payment
did not explicitly deceive debtors into believing that they would be subject to suit.203 It
should be noted that the Consumer Financial Protection Bureau is also contemplating
rulemaking that may affect this issue in the context of FDCPA claims.204
Finally, as discussed in the next sections, it may be possible to show that the limitations
period is jurisdictional, that the limitation is based on a statute of repose, or that the
action is barred by laches.
4.7.4.	 Statutes of Repose and Limitations on the Underlying Obligation
Some statutes impose more stringent limitations that affect the underlying obligation,
not just the state’s remedies to collect. These statutes fall into three main classifications: statutes of repose, jurisdictional statutes of limitation, and “non-claim” statutes.
Inc., 248 F.3d 767 (8th Cir 2001).
e.g., Iowa Code § 421.17A; Utah Code Ann. §§ 63A-3-502, 76-3-201.1 (West); Va. Code Ann. §
19.2-349.
202  Buchanan v. Northland Grp., Inc., 776 F.3d 393 (6th Cir. 2015); McMahon v. LVNV Funding, L.L.C.,
744 F.3d 1010 (7th Cir. 2014). See generally § 7.9, infra; National Consumer Law Center, Fair Debt
Collection § 5.5.2.13.3.2 (8th ed. 2014), updated at www.nclc.org/library.
203  Huertas v. Galaxy Asset Mgmt., 641 F.3d 28 (3d Cir. 2011); Freyermuth v. Credit Bureau Services, Inc.,
248 F.3d 767 (8th Cir 2001).
204  See Consumer Financial Protection Bur., Small Business Review Panel for Debt Collector and Debt
Buyer Rulemaking, Outline of Proposals Under Consideration and Alternatives Considered (July 28,
2016), available at http://files.consumerfinance.gov/f/documents/20160727_cfpb_Outline_of_
proposals.pdf.
201  See,

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Confronting Criminal Justice Debt

Statutes of repose generally serve to extinguish the underlying legal right.205 Jurisdictional statutes of limitation clearly set out a jurisdictional limitation that similarly acts
to extinguish the underlying right.206 “Non-claim statutes” simultaneously provide
both for a statutorily created right and a limit on the time during which that right may
be exercised.207 It may be possible for advocates to argue that a statute in their jurisdiction that specifically addresses criminal justice debt falls into one or more of these
categories and thus extinguishes the right to collect.
4.7.5.	 Laches
The equitable defense of laches is established by proving both an unreasonable delay
in asserting a right, and prejudice against the party raising the defense. Thus, in the
context of criminal justice debt, a debtor may wish to argue that laches precludes the
state from pursuing a right to enforce the debt when the state has unreasonably delayed
attempting to enforce it. However, this theory may be of limited use in the collection of
criminal justice debts, due to the theory of nullum tempus occurit regi.208 In essence, this
doctrine provides that equitable limitations do not apply against state governmental
entities. It is based on the public policy that the state should not be limited in the same
manner as private parties, because it is enforcing the rights and defending the interests
of the collective public.209
Some states have abrogated sovereign immunity for contract claims and other actions in
which the state is a plaintiff, and this abrogation of sovereign immunity has sometimes
been considered an abrogation of nullum tempus, given the intertwined and overlapping
policy justifications for these doctrines.210 Other jurisdictions have distinguished the
two, applying nullum tempus even in situations in which sovereign immunity was clearly
abrogated, by drawing nuanced distinctions between the underlying policies.211
Also, municipalities may or may not enjoy the full protection of the nullum tempus doctrine, depending on the jurisdiction.212 In most jurisdictions, municipalities may only
invoke the doctrine to the extent that they are carrying out a public rather than a “private or proprietary function.” One court has held that the primary issue in determin-

205  54

C.J.S. Limitations of Actions § 27 (2010).
R. Sand & Gravel Co. vs. United States, 552 U.S. 130, 128 S. Ct. 750, 169 L. Ed. 2d 591 (2008).
207  54 C.J.S. Limitations of Actions § 33 (2010).
208  “Time doesn’t run against the king.”
209  Joseph Mack, Nullum Tempus: Governmental Immunity to Statutes of Limitation, Laches, and Statutes of
Repose, 73 Def. Couns. J. 180 (2006).
210  See New Jersey Educ. Facilities Auth. v. Gruzen P’ship, 592 A.2d 559 (N.J. 1991).
211  See Ohio Dept. of Transp. v. Sullivan, 527 N.E.2d 798 (Ohio 1988).
212  See generally City of Colorado Springs v. Timberlane Associates, 824 P.2d 776, 799 n.5 (Colo. 1992)
(providing a list of states that limit applicability of nullum tempus when invoked by municipalities).
206  John

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ing whether a political subdivision is engaged in governmental or proprietary activity
is “whether it is seeking to vindicate rights of the state or the citizens of the state as a
whole, as opposed to only the citizens within its own jurisdiction.”213 This distinction
may create an opportunity to raise the equitable defense of laches in the context of
municipal criminal justice debt.
Finally, the general rule is that laches is not available in circumstances to which a clear
statute of limitations applies.214

5.  CRIMINAL JUSTICE DEBT AND BANKRUPTCY
5.1.	Introduction
The Bankruptcy Code offers debtors “a new opportunity in life and a clear field for
future effort, unhampered by the pressure and discouragement of pre-existing debt.”215
For criminal justice debtors, bankruptcy can be a powerful tool. It can eliminate the
obligation to repay certain criminal justice debts or provide an orderly mechanism
for repaying debts that cannot be discharged. Bankruptcy can open the door to relief,
such as expungement or sealing that may otherwise be unavailable due to outstanding
criminal debt.216 Where use of an automobile is a necessity, the Bankruptcy Code can
help debtors by preventing government entities from withholding drivers’ licenses and
vehicle registrations based on the non-payment of dischargeable traffic fines or other
court debt.217
The relief from criminal justice debts available under the Bankruptcy Code depends on
both the nature of the debt and the bankruptcy chapter used. Most individual bankruptcy cases are filed under chapter 7 or chapter 13 of the Bankruptcy Code. Chapter 7
cases are commonly referred to as “liquidations,” while chapter 13 cases are often called
“reorganizations.” In a chapter 7 case, a court-appointed trustee examines the debtor’s
assets to determine if anything is available to be sold or recovered for the benefit of
creditors. In most individual bankruptcy cases virtually all of the debtor’s assets are
“exempt”218 leaving no property available for liquidation and distribution to creditors.
At the end of a chapter 7 case, the debtor receives a discharge, which prohibits creditors from taking or continuing action to collect personally from the debtor on account
213  Fennelly

v. A-1 Mach. & Tool Co., 728 N.W.2d 163 (Iowa 2006).
v. Boyle’s Famous Corned Beef Co., 66 F.3d 164 (8th Cir. 1995).
215  Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934).
216  See, e.g., Iowa Code § 901C.1 (2016) (permitting expungement of dismissed or acquitted cases if
certain conditions are satisfied including the payment of all required court costs).
217  11 U.S.C. § 525(a). See Perez v. Campbell, 402 U.S. 637 (1971).
218  See 11 U.S.C. § 522(b).
214  Ashley

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Confronting Criminal Justice Debt

of the discharged debt. Some debts, however, including certain criminal justice debts,
cannot be discharged in chapter 7.
Chapter 13 cases work very differently than chapter 7 liquidations and provide debtors
with the opportunity to adjust their financial affairs without liquidating assets. In a
chapter 13 case, the debtor submits a plan to repay creditors all or part of what they
are owed. Upon successful completion of the plan the debtor receives a discharge. The
chapter 13 discharge is broader than the chapter 7 discharge. As a result, some criminal
debts that are not dischargeable in chapter 7 may be discharged in chapter 13.
This chapter is not intended to be an exhaustive review of bankruptcy issues, but rather
focuses on the intersection between criminal justice debts and bankruptcy. Section 5.2
examines the Bankruptcy Code’s automatic stay provisions, which generally provide an
immediate stay of all actions against the debtor upon the filing of a bankruptcy petition. Section 5.3 discusses the dischargeability of a range of criminal justice debts in
chapter 7. Finally, section 5.4 provides a brief overview of chapter 13 and the broader
discharge available for criminal justice debts. For a more comprehensive discussion
of bankruptcy, see the National Consumer Law Center’s Consumer Bankruptcy Law and
Practice.219

5.2.	 Automatic Stay
The automatic stay is a fundamental cornerstone of bankruptcy law.220 It is triggered
instantly upon the filing of a bankruptcy petition and operates to stay almost all
actions against the debtor and the debtor’s property.221 With few exceptions the automatic stay stops creditors from taking collection action, pursuing or continuing a court
case against the debtor, or seizing any property of the debtor based on debts that arose
before the debtor filed the bankruptcy petition. The purpose of the stay is twofold: to
provide the debtor a “breathing spell” from his creditors, and to allow the bankruptcy
court to centralize and resolve claims against the debtor in an orderly manner. The
stay remains in place unless the bankruptcy court terminates it or until other events
specified in the Bankruptcy Code occur (e.g., case dismissal or discharge). Actions taken
in violation of the stay are void, and creditors taking such action may be punished
219  National

Consumer Law Center, Consumer Bankruptcy Law and Practice (11th ed. 2016), updated at
www.nclc.org/library.
220  11 U.S.C. § 362(a); H.R. Rep. No. 95-595, at 340 (1977) (“The automatic stay is one of the fundamental
debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his
creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the
debtor to attempt a repayment or reorganization, or simply to be relieved of the financial pressures
that drove him into bankruptcy.”).
221  For repeat bankruptcy filers, limited exceptions to this general rule apply. See 11 U.S.C. § 362(c)(3),
(c)(4).

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by contempt. In addition, the Bankruptcy Code contains a specific cause of action for
willful violations of the stay under which the debtor may be awarded actual damages,
including attorney fees.222
While the automatic stay operates broadly, it does not prohibit the commencement or
continuation of criminal proceedings.223 Thus, the automatic stay is of limited help
in stopping criminal prosecution, and possible incarceration. For example, a criminal
case based upon a bad check can continue without violation of the stay even though
the underlying debt to the payee may be dischargeable in bankruptcy.224 However, the
automatic stay exception generally does not protect a private creditor who attempts to
use criminal proceedings to collect a debt. For example, a creditor may violate the stay
by reporting a bad check claim to the local police and encouraging prosecution of the
debtor.225
While the statutory exception is commonly applied to original prosecutions, several
courts have held that the enforcement of sentencing orders is also excepted. As a result,
these courts hold that probation revocation based on a failure to pay a restitution obligation does not violate the stay.226 One municipal court, after learning of the debtor’s
intent to discharge criminal justice debt in bankruptcy, vacated the prior sentence of a
fine in lieu of jail and ordered the debtor to jail. A bankruptcy court subsequently held
that this action did not violate the automatic stay.227
Whether the automatic stay can forestall the use of civil processes, such as garnishment
or execution on a debtor’s property, to collect criminal justice debt remains an open
question. Under the Mandatory Victims Restitution Act (MVRA), Congress granted
the federal government the authority to use civil procedures to enforce penal fines

222  11 U.S.C. § 362(k). See National Consumer Law Center, Consumer Bankruptcy Law and Practice Ch.

9 (11th ed. 2016), updated at www.nclc.org/library (discussing the automatic stay).
U.S.C. § 362(b)(1). See National Consumer Law Center, Consumer Bankruptcy Law and Practice
§ 9.4.6.2 (11th ed. 2016), updated at www.nclc.org/library.
224  See Dovell v. Guernsey Bank, 373 B.R. 533 (S.D. Ohio 2007); In re Nash, 64 B.R. 874 (B.A.P. 9th Cir.
2012); In re Pickett, 311 B.R. 492 (Bankr. D. Vt. 2005). See also Gruntz v. County of Los Angeles (In re
Gruntz), 202 F.3d 1074 (9th Cir. 1999) (prosecution for failure to pay child support not barred by
automatic stay).
225  In re Brown, 213 B.R. 317 (W.D. Ky. 1997); In re Heeley, 2014 WL 7012652 (Bankr. E.D.N.C. Dec. 11,
2014); In re White, 2010 WL 2465340 (Bankr. E.D.N.C. June 11, 2010); In re Pearce, 400 B.R. 126
(Bankr. N.D. Iowa 2009).
226  United States v. Colasuonno, 697 F.3d 164 (2d Cir. 2012); United States v. Caddell, 830 F.2d 36 (5th
Cir. 1987); United States v. Moore, 825 F. Supp. 754 (N.D. Miss. 1993); In re Williams, 528 B.R. 814
(Bankr. D. Kan. 2015); In re Sims, 101 B.R. 52 (Bankr. W.D. Wis. 1989); Birk v. Simmons, 108 B.R. 657
(Bankr. S.D. Ill. 1988); In re Gilliam, 67 B.R. 83 (Bankr. M.D. Tenn. 1986).
227  In re Perrin, 233 B.R. 71 (Bankr. D.N.J. 1999).
223  11

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Confronting Criminal Justice Debt

notwithstanding any other federal law.228 Courts considering the intersection between
the MVRA and the Bankruptcy Code have concluded that the MVRA trumps the automatic stay.229 Therefore, the federal government may garnish a debtor’s wages or benefits without first obtaining the bankruptcy court’s permission. Despite this weight of
authority, there are good arguments that the application of the automatic stay, which
does not affect the government’s substantive rights to collect criminal justice debts, is
not precluded by the MVRA. Specifically, the authority to enforce a criminal fine under
the MVRA is subject to the “practices and procedures” for enforcing debts under state
and federal law. It would seem that the automatic stay, which only limits the timing of
collection, is a procedural mechanism that is not in conflict with the MVRA’s substantive provisions.230 Further, the “breathing spell” provided by the automatic stay is essential to protect the interests of debtors and creditors alike.231 Those interests are directly
undermined by permitting the government to ignore the stay and frustrate the orderly
bankruptcy process.
The MVRA is not applicable to state actors, and therefore the automatic stay should
limit efforts by non-federal entities to collect criminal justice debts through traditional
civil mechanisms.232 However, some courts have concluded that enforcement actions to
collect criminal justice debt are a continuation of criminal proceedings within the scope
of section 362(b)(1) or that such efforts are an exercise of the government unit’s police
and regulatory power excepted from the automatic stay by section 362(b)(4).233
By contrast, civil contempt proceedings, even if they can result in incarceration, are generally not excepted from the automatic stay. Plainly, civil contempt or bench warrants based
on civil contempt do not fall within the criminal exception to the stay.234 Bankruptcy
courts have repeatedly held that civil contempt proceedings, which allow the debtor to
purge himself of contempt by paying the amount due to the creditor, are stayed.235
228  18

U.S.C. § 3613.

229  In re Partida, 531 B.R. 811 (B.A.P. 9th Cir. 2015), appeal docketed No. 15-60045 (9th Cir. June 29, 2015);

United States v. Robinson, 494 B.R. 715 (W.D. Tenn. 2013), aff’d, 764 F.3d 554 (6th Cir. 2014).
Houck v. Substitute Trustee Servs., Inc. 791 F.3d 473, 481 (4th Cir. 2015) (automatic stay is a
“procedural mechanism”).
231  See Weber v. SEFCU, 719 F.3d 72, 76 n.5 (2d Cir. 2013).
232  See In re Blair, 62 B.R. 650 (Bankr. N.D. Ala. 1986); In re Landstrom Distributors, Inc., 55 B.R. 390
(Bankr. C.D. Cal. 1985).
233  See In re Valle, 456 B.R. 228 (Bankr. D. Md. 2011); In re Scott, 106 B.R. 698 (Bankr. S.D. Ala. 1989).
234  See In re Iskric, 496 B.R. 355, 362 (Bankr. M.D. Pa. 2013) (explaining different underlying purposes
of civil and criminal contempt and relationship to Bankruptcy Code). But see In re Dingley, 514 B.R.
591 (B.A.P. 9th Cir. 2014) (Jury, J., concurring) (holding civil contempt proceeding not stayed based
on incorrect circuit precedent), appeal docketed No. 14-60055 (9th Cir. Sept. 5, 2014).
235  See In re Iskric, 496 B.R. 355, 362 (Bankr. M.D. Pa. 2013): In re Galmore, 390 B.R. 901 (Bankr. N.D.
Ind. 2008); In re Daniels, 316 B.R. 342 (Bankr. D. Idaho 2004); In re Atkins, 176 B.R. 998, 1006
(Bankr. D. Minn. 1994); In re Woodall, 161 B.R. 969 (Bankr. N.D. Ill. 1994); Rook v. Rook (In re Rook),
230  See

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Many states employ a process by which the debtor may be examined if she fails to pay
a civil judgment. The debtor’s exam, or supplementary process as it may be called, is
used to determine whether or not the debtor has an ability to pay.236 Creditors have
been known to abuse this process by setting frequent debtor’s exams even though the
debtor’s circumstances have not changed or scheduling the exam in a distant location.
If the debtor fails to appear for the hearing or exam, the court may issue a bench warrant. The automatic stay has been found to bar execution of warrants issued under such
circumstances in a civil judgment setting.237
Finally, criminal justice debt derived from indigence rather than culpability—for example indigent defense fee debt—may necessitate different treatment under the stay than
other criminal justice debt like victim restitution or fines. Debt that is essentially payment for services should be treated largely the same as private sector debt, and therefore
should be subject to the automatic stay and other protections applicable to ordinary
civil judgment debtors.

5.3.	 Criminal Justice Debts in Chapter 7
5.3.1.	 Overview
The principal goal of most bankruptcies is the discharge, which frees the debtor from
personal liability on most debts. It is this clean slate that normally gives debtors the
fresh start that bankruptcy is meant to provide. However, the discharge is not absolute.
Some types of debts, including some criminal justice debts, may not be discharged in a
chapter 7 bankruptcy.238
The most common basis for finding criminal justice debts are not dischargeable is section 523(a)(7), which excepts from discharge a “fine, forfeiture, or penalty, payable to
and for the benefit of a governmental unit [that] is not compensation for actual pecuniary loss.”239 Based on the plain language of this section, to be nondischargeable a debt
102 B.R. 490 (Bankr. E.D. Va. 1989), aff’d, 929 F.2d 694 (4th Cir. 1991). But see Stovall v. Stovall, 126
B.R. 814, 816 (N.D. Ga. 1990).
236  See National Consumer Law Center, Collection Actions § 12.13 (3d ed. 2014) (general discussion of
debtor’s examinations).
237  See In re Galmore, 390 B.R. 901 (Bankr. N.D. Ind. 2008).
238  See National Consumer Law Center, Consumer Bankruptcy Law and Practice § 15.4.3 (11th ed. 2016),
updated at www.nclc.org/library.
239  11 U.S.C. § 523(a)(7). Other less common exceptions to discharge are “for a fee imposed on a prisoner
by any court for the filing of a case, motion, complaint, or appeal, or for other costs and expenses
assessed with respect to such filing,” 11 U.S.C. § 523(a)(17); domestic support obligations (in regard
to parental responsibility for costs to incarcerate juveniles), 11 U.S.C. § 523(a)(5); and fraud 11 U.S.C.
§ 523(a)(2). See United States v. Horras (In re Horras), 443 B.R. 159 (B.A.P. 8th Cir. 2011) (Medicare
fraud).

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must be 1) a fine, forfeiture or penalty, 2) punitive, rather than compensatory, 3) payable to a governmental unit, and 4) for the benefit of a governmental unit.
Despite the clear statutory text, the Supreme Court in Kelly v. Robinson240 seemingly
broadened the scope of section 523(a)(7) to include criminal restitution obligations
that are arguably compensatory in nature. In Kelly, the debtor was convicted of welfare
fraud and ordered to pay restitution in the amount of the welfare overpayment to the
State of Connecticut as a condition of probation. The debtor later filed bankruptcy
and sought to discharge the debt, arguing that the restitution was compensation for
a monetary loss. The Court concluded that, even though the obligation was the exact
amount of the improperly received benefits, the debt was not merely compensation for
actual pecuniary loss. Rather, the Court focused on the penal purpose of the restitution, concluding that it served a punitive function even if calculated based on the actual
pecuniary loss to a victim. The Court also relied on the principles of federalism and
its “deep conviction that federal bankruptcy courts should not invalidate the results
of state criminal proceedings.”241 According to the Court, the bankruptcy exception
for “fines, forfeitures, and penalties” “preserv[ed] from discharge any condition a state
criminal court imposes as part of a criminal sentence.”242
Based on the Court’s reasoning in Kelly, courts have created a complicated patchwork of
discharge exceptions and caveats for criminal justice debts, with considerable variation
across jurisdictions. Even though exceptions to discharge are construed narrowly, 243
courts have nevertheless expanded Kelly beyond its limited holding related to criminal
restitution orders. In addition, an explosion in cost shifting measures, designed to place
the onus of funding the courts on largely low-income criminal defendants, and a crisis
in access to reasonable bail, have fundamentally changed the landscape from that in
which Kelly was decided.
5.3.2.	 Dischargeability Under Chapter 7 by Type of Debt
5.3.2.1.	 Criminal Fines in Chapter 7
Fines—financial obligations ostensibly established to serve a punitive function—are not
dischargeable in a chapter 7 bankruptcy.244 This includes traffic and parking fines.245
240  479

U.S. 36 (1986).
at 360.
242  Id. at 361.
243  Kawaauhau v. Geiger, 523 U.S. 57, 118 S. Ct. 974, 140 L. Ed. 2d 90 (1998).
244  McNelis v. Verano (In re McNelis), 2013 WL 5376525 (Bankr. M.D. Pa. Sept. 25, 2013); In re
Farnsworth, 283 B.R. 503 (Bankr. W.D. Tenn. 2002).
245  In re Branch, 525 B.R. 388 (Bankr. E.D. Mich. 2015); In re Stevens, 184 B.R. 584 (Bankr. W.D. Wash.
1995); In re Gallagher, 71 B.R. 138 (Bankr. N.D. Ill. 1987) (parking fines not dischargeable regardless
of lack of evidence they were “imposed by a court”).
241  Id.

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5.3.2.2.	 Civil Penalties in Chapter 7
Courts have generally found penalties in civil and administrative proceedings to be
excepted from chapter 7 discharge. Non-dischargeable civil penalties include remediation fees and penalties arising from violations of environmental protection statutes,246
administrative penalties for illegal access to utilities,247 civil disgorgement orders in SEC
enforcement actions or similar proceedings,248 treble damages and restitution in Medicaid fraud matters,249 Foreign Bank Account Reporting penalties,250 HUD penalties,251
NLRB penalties,252 penalties assessed in contractor licensing proceedings,253 and civil
penalties imposed for fraudulent acquisition of unemployment benefits.254 One court
has found civil fees imposed for reestablishing a driver’s license after adjudication of
guilt in certain traffic offenses to be non-dischargeable.255 Another court has held that
civil penalties related to private attorney general actions brought by individuals cannot
be discharged.256
Several courts have found penalties, fees, and costs associated with civil consumer fraud
actions to be dischargeable because they are payable to but not for the benefit of a governmental unit.257 But other courts have made a distinction between consumer fraud
fines on one hand and restitution, attorney fees, and costs on the other hand, finding

246  Whitehouse v. LaRoche, 277 F.3d 568 (1st Cir. 2002); In re Strong, 305 B.R. 292 (B.A.P. 8th Cir. 2004);

In re Warfel, 268 B.R. 205, 213 (B.A.P. 9th Cir. 2001); Kentucky Natural Res. & Envtl. Prot. Cabinet v.
Seals, 161 B.R. 615 (W.D. Va. 1993); Pennsylvania Dep’t of Envtl. Prot. v. Thebes (In re Thebes), 2011
WL 1239847 (Bankr. M.D. Pa. Mar. 30, 2011); Ohio Envtl. Prot. Agency v. Kirby (In re Kirby), 2007
WL 2492682 (Bankr. N.D. Ohio Aug. 28, 2007); In re Damm, 2001 WL 34065016 (Bankr. C.D. Ill.
May 10, 2001).
247  Maldonado v. Autoridad de Acueductos y Alcantarillados (In re Maldonado), 2013 WL 6860807
(Bankr. D. P.R. Dec. 27, 2013).
248  In re Ott, 218 B.R. 118 (Bankr. W.D. Wash. 1998); In re Telsey, 144 B.R. 563 (Bankr. S.D. Fla. 1992).
249  State v. Sokol (In re Sokol), 170 B.R. 556 (Bankr. S.D.N.Y. 1994), aff’d, 108 F.3d 1370 (2d Cir. 1997); In
re Kelly, 155 B.R. 75 (Bankr. S.D.N.Y. 1993).
250  United States v. Simonelli, 614 F. Supp. 2d 241 (D. Conn. 2008).
251  United States Dep’t of Hous. & Urban Dev. v. Cost Control Mktg. & Sales Mgmt. of Va., Inc., 64 F.3d
920 (4th Cir. 1995).
252  In re Fogerty, 204 B.R. 956 (Bankr. N.D. Ill. 1996).
253  In re Poule, 91 B.R. 83 (B.A.P. 9th Cir. 1988).
254  In re O’Brien, 110 B.R. 27 (Bankr. D. Colo. 1990). However, in many cases courts rely on the fraud
exception to discharge in § 523(a)(2) to prevent the discharge of debts resulting from fraudulently
obtained unemployment benefits.
255  In re Clayton, 199 B.R. 29 (Bankr. W.D. Tenn. 1996).
256  Medina v. Vander Poel, 523 B.R. 820 (E.D. Cal. 2015).
257  In re Towers, 162 F.3d 952 (7th Cir. 1998); In re Styer, 477 B.R. 584 (Bankr. E.D. Pa. 2012).

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only the former excepted from discharge.258 Civil contempt fees between private parties
have been found to be dischargeable.259
5.3.2.3.	 Victim Restitution in Chapter 7
Victim restitution is generally not subject to discharge in a chapter 7 bankruptcy. However, like many other terms in the world of criminal justice debt, the term “restitution”
is defined in different ways across jurisdictions. In certain jurisdictions, for example, the
term is confusingly applied to all criminal justice debt, including fines and fees owed
to the state and not the victim. This misleading use of nomenclature confuses the fundamental purpose of victim restitution and other types of criminal justice debt. Victim
restitution compensates the victim for the damage caused by the crime and implicates
very different purposes and economic dynamics than “restitution” that compensates
the state for the costs of administering the justice system. Victim restitution is generally
not a revenue generator for the state, but rather a mechanism to make a victim whole.
Victim restitution is generally calculated from acts directly related to criminal culpability; it is not dependent upon indigence. Advocates should make sure to carefully disambiguate true victim restitution from other criminal justice debt nominally labeled as
such in order to determine whether debt falls within an exception to discharge.
Courts since Kelly have held that most victim restitution included in a criminal sentencing order is non-dischargeable under section 523(a)(7). This is generally true even
if the state collects money solely for distribution to the victim.260 Courts are divided on
whether a restitution debt owed directly to a non-governmental victim also fits within
the exception.261 Those courts holding that restitution owed to non-governmental
units is still non-dischargeable, expand on Kelly, and conclude that the state “benefits”
from such payments as they help to carry out criminal judgments.262
258  In

re Parsons, 505 B.R. 540 (Bankr. D. Haw. 2014); Hessler v. Maryland Consumer Prot. Div. (In re
Hessler), 2013 WL 5429868 (Bankr. D. Md. Sept. 30, 2013); In re Jensen, 395 B.R. 472 (Bankr. D. Colo.
2008) (AG assessments for violations of various consumer protections statutes non-dischargeable).
259  In re Strutz, 154 B.R. 508 (Bankr. N.D. Ind. 1993).
260  I In re Troff, 488 F.3d 1237 (10th Cir. 2010); In re Verola, 446 F.3d 1206 (11th Cir. 2006); In re
Thompson, 418 F.3d 362 (3d Cir. 2005). But see In re Rayes, 496 B.R. 449 (Bankr. E.D. Mich. 2013)
(restitution dischargeable where ultimate destination of funds was non-governmental unit).
261  Compare Farmers Ins. Exch. v. Mills (In re Mills), 290 B.R. 822 (Bankr. D. Colo. 2003) (debt to
insurance company “victim” was non-dischargeable as restitution “for the benefit” of the state) with
In re Towers, 162 F.3d 952 (7th Cir. 1998) and In re Rashid, 210 F.3d 201 (3d Cir. 2000).
262  United States v. Vetter, 895 F.2d 456, 459 (8th Cir. 1990); In re Reif, 363 B.R. 107 (Bankr. D. Ariz.
2007); Woods v. Ritter (In re Ritter), 2006 WL 3065518 (Bankr. S.D.N.Y. Oct. 27, 2006); In re Ginesin,
2005 WL 3789127 (Bankr. S.D.N.Y. Dec. 7, 2005); In re Wolfson, 261 B.R. 369 (Bankr. E.D.N.Y. 2001);
In re Emerson, 1991 WL 11731127 (Bankr. S.D. Iowa Apr. 5, 1991); Brown v. State, 2012 WL 3061868
(Nev. July 26, 2012); People v. Riverhead Park Corp., 982 N.Y.S.2d 839 (N.Y. App. Term 2013); United
Bldg. Centers v. Ochs, 781 N.W.2d 79 (S.D. 2010).

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Costs flowing from a victim’s loss that are not included in the sentencing order, but
may nevertheless be considered “restitution” in a broad sense, are typically dischargeable.263 Conversely, amounts need not be explicitly called “restitution” to fall under the
523(a)(7) discharge exception. For example, a condition of probation to repay a debt
owed to a victim, although not labeled as restitution, may not be dischargeable.264
5.3.2.4.	 Juvenile Restitution Owed by Parents in Chapter 7
Courts have generally held that juvenile criminal justice debt owed by parents is dischargeable in a chapter 7 bankruptcy. Courts have focused primarily on two factors,
namely the essential non-penal nature of the action, and the fact that the parents who
owe the debt are not themselves the culpable actor.265 The Ninth Circuit has also rejected
the argument that the costs of a juvenile’s incarceration charged to a legal guardian are
excepted from discharge as a domestic support obligation under section 523(a)(5).266
5.3.2.5.	 Costs or “User Fees” in Chapter 7
5.3.2.5.1.	 The Importance of Differentiating Between the Various Types of Costs
Until recently, the underlying purpose of a particular cost has rarely been a substantial
part of chapter 7 dischargeability analysis. A wide variety of fees and costs, serving many
very different purposes and paying many different entities, are often lumped together
when reviewed for nondischargeability. For this reason, courts have generally held that
financial obligations labeled simply as “costs” in criminal cases are excepted from discharge.267 However, when costs are broken down into their constituent components,
partial discharge may be possible. In at least one case, service fees attached to parking
fine were held to be dischargeable.268
In re Lopez illustrates the undifferentiating manner in which many courts have considered “costs,” and the deficiency of that approach.269 The bankruptcy court originally
263  In

re Wilson, 299 B.R. 380 (Bankr. E.D. Va. 2003) (restitution “in the amount determined by civil
court” in a criminal judgment for removal of collateral dischargeable); In re Martonak, 67 B.R. 727
(Bankr. S.D.N.Y. 1986) (costs of an audit by a debtor’s ex-employer conducted after the employee was
found guilty of embezzlement, not included in a restitution order, found dischargeable).
264  New Image Motor Sports Fin., L.L.C. v. Jackson (In re Jackson), 2012 WL 6091401 (Bankr. E.D. Tex.
Dec. 7, 2012).
265  Smith v. Sims (In re Sims), 2012 WL 528156 (Bankr. S.D. Miss. Feb. 17, 2012); In re Ellis, 224 B.R. 786
(Bankr. D. Idaho 1998).
266  Rivera v. Orange Co. Probation Dep’t, ___ F.3d ___, 2016 WL 4205946 (9th Cir. Aug. 10, 2016).
267  In re Hollis, 810 F.2d 106 (6th Cir. 1987); McNelis v. Verano (In re McNelis), 2013 WL 5376525 (Bankr.
M.D. Pa. Sept. 25, 2013); In re Farnsworth, 283 B.R. 503 (Bankr. W.D. Tenn. 2002); In re Emerson,
1991 WL 11731127 (Bankr. S.D. Iowa Apr. 5, 1991).
268  Williams v. Motley, 925 F.2d 741 (4th Cir. 1991).
269  In re Lopez, 531 B.R. 554 (Bankr. E.D. Pa. 2015); In re Lopez, 475 B.R. 418 (Bankr. E.D. Pa. 2012).

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determined that, given the expansiveness of Kelly, any costs associated with a criminal adjudication were not dischargeable in chapter 7.270 The Court did not examine
the underlying purposes of the costs, and further disregarded state law that held costs
“are not part of the sentence.”271 However, the Third Circuit vacated and remanded the
case to the bankruptcy court to develop the record on the purpose of each of the costs
assessed.272 On remand, the bankruptcy court found collection costs, lien filing fees,
and probation fees to be dischargeable, given state law interpreting these charges as
merely compensatory.273 Treatment of specific types of costs under chapter 7 are discussed further below in sections 5.3.2.5.2 through 5.3.2.5.5.
5.3.2.5.2.	 Costs of Prosecution in Chapter 7
“Costs of prosecution” is a loose term that can include many different amounts chargeable to a defendant, including but not limited to transcripts, depositions, and mileage
for witnesses and prosecution staff. When included in the restitution order itself, courts
have generally found the costs to be excepted from discharge,274 but when the fees are
imposed outside of the restitution order, they are generally dischargeable.275 In some
circumstances, costs of prosecution can include indigent defense fees, which are discussed separately below.
5.3.2.5.3.	 Indigent Defense Fees in Chapter 7
Few courts have directly dealt with indigent defense costs. Courts are split as to whether
such costs are dischargeable.276 The decisions on both sides of the question are sparse
on analysis.
The reasoning of the James v. Strange and Fuller v. Oregon cases277 suggests that denying bankruptcy relief for unpaid attorney fees to indigent debtors who rely on courtappointed counsel, while allowing relief for unpaid attorney’s fees to debtors who could
afford to hire a private attorney, would be a denial of equal protection. This appears
to be a novel argument in the bankruptcy context. However, in a criminal context, the
270  In re

Lopez, 475 B.R. 418 (Bankr. E.D. Pa. 2012).

271  Id.
272  In re

Lopez, 579 Fed. Appx. 100 (3d Cir. 2014).
Lopez, 531 B.R. 554 (Bankr. E.D. Pa. 2015).
274  In re Thompson, 16 F.3d 576, 577–578 (4th Cir. 1994); In re Hollis, 810 F.2d 106 (6th Cir. 1987); In re
Zarzynski, 771 F.2d 304 (7th Cir. 1985) (pre-Kelly case); In re Ryan, 389 B.R. 710 (B.A.P. 9th Cir. 2008);
In re Garvin, 84 B.R. 824 (Bankr. M.D. Fla. 1988) (does not cite Kelly, but rather prior convention).
275  United States v. Laws, 88 Fed. Appx. 448 (2d Cir. 2004) (cost of audit in embezzlement case not
included in restitution order was dischargeable), vacated on other grounds, Radford v. United States,
543 U.S. 1106 (2005).
276  Compare In re Emerson, 1991 WL 11731127 (Bankr. S.D. Iowa Apr. 5, 1991) with In re Polk, 2012 WL
8123378 (Bankr. E.D. Cal. Jan. 31, 2012), aff’d, 2014 WL 3940206 (E.D. Cal. Aug. 12, 2014).
277  See § 2.3 supra (full discussion of Strange and Fuller).
273  In re

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South Dakota Supreme Court rejected a sentencing provision imposing probation
revocation for attempting bankruptcy discharge of indigent defense fees on equal protection grounds under Strange.278
5.3.2.5.4.	 Costs of Incarceration in Chapter 7
Most courts have found jail fees to be non-dischargeable in a chapter 7 bankruptcy,279
with at least one exception where these fees were imposed outside of the criminal sentence itself.280 Usually costs of incarceration are calculated on a flat periodic rate for
room and board, but sometimes costs are assessed on individualized bases—for example, administrative penalties covering costs for an inmate’s failed suicide attempt,281
destroyed prison property, 282 or costs associated with an attempted escape.283
There is an argument that pretrial incarceration debt should be dischargeable under
equal protection principles if the debt was incurred due to indigence rather than culpability. In those circumstances where bail is set at unreasonable levels, indigent defendants have no choice but to either plead guilty or remain incarcerated until their cases
can go to trial. In the latter circumstance, jail fees continue to mount as the defendant
waits. In contrast, equally culpable non-indigent defendants who are able to make bail
do not incur this cost. This creates a two-tiered system where costs are automatically
substantially higher for indigent defendants who choose to go to trial.
5.3.2.5.5.	 Costs Related to Deferred Judgment in Chapter 7
In many criminal sentencing systems, an option exists for the deferred adjudication of
a criminal proceeding. In these cases, what is “deferred” is the actual finding of guilt
by the court; typically, the defendant pleads guilty and submits to probation and payment of certain costs, and at the end of the term of probation the matter may even be
expunged. There does not appear to be any authority determining whether, in a bankruptcy context, payments associated with a deferred judgment satisfy section 523(a)
(7)’s exception to discharge. However, at least one court has found that a deferred
278  State

v. Huth, 334 N.W.2d 485 (S.D. 1983) (pre-Kelly case).
re Donohue, 2006 WL 3000100 (Bankr. N.D. Iowa Oct. 16, 2006) (citing Fourth Circuit case In re
Thompson; “since the debtor’s parole was contingent on payment of court costs and such costs are
assessed only against convicted criminal defendants, they constitute a part of the criminal sentence”);
In re Maxwell, 229 B.R. 400 (Bankr. W.D. Ky. 1998); In re Neil, 131 B.R. 142 (Bankr. W.D. Mo. 1991)
(jail fees not dischargeable, characterized as fine).
280  In re Miller, 511 B.R. 621 (Bankr. W.D. Mo. 2014).
281  In re Reimann, 436 B.R. 564 (Bankr. E.D. Wis. 2010).
282  In re Merritt, 186 B.R. 924 (Bankr. S.D. Ill. 1995).
283  State v. Van Horn (In re Van Horn), 2012 WL 2476415 (Bankr. D. Kan. June 26, 2012) (“$2,921.94, the
precise amount of overtime, mileage and expenses relating to the use of a K–9 unit to track and
apprehend” inmate who escaped confinement, was assessed administratively to inmate; court ruled
an administrative penalty was non-dischargeable even though it was calculated by compensation).
279  In

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adjudication preceded by a guilty plea under the somewhat more debtor-friendly chapter 13 standard constitutes a “criminal conviction.”284 Based on that standard, there is
no difference in the analysis between debts imposed as part of a deferred adjudication
and a criminal conviction. This opinion draws on Dickerson v. New Banner Institute, in
which the Supreme Court held that a guilty plea combined with imposition of probation constituted a conviction for federal firearms restriction purposes.285 Components
of criminal justice debt assessed in a deferred adjudication should be analyzed for dischargeability like other any other criminal justice debt.
5.3.2.6.	 Surcharges in Chapter 7
Most if not all states charge, in addition to wholly punitive fines, various surcharges earmarked to fund specific initiatives. Whether discharge is permitted varies from jurisdiction to jurisdiction. Courts finding surcharges not to be dischargeable focus on the fact
that the charges are included as penalties in the underlying criminal action.286 Courts
finding such obligations dischargeable generally focus on the administrative or pecuniary functions of such charges.287
5.3.2.7.	 Bail Bonds in Chapter 7
In order to secure appearance at trial of a criminal defendant who has been granted
pretrial release, the court may require the payment of an amount of money as security
(bail). Bail is generally, but not always, returned at the conclusion of trial, regardless
of the outcome.288 If the defendant does not show up for trial, on the other hand, or
violates the terms of pretrial release, bail may be forfeited. Given the often unaffordable nature of bail, an industry of private bondsmen has arisen over the last 100 years,
offering what is essentially an exotic form of insurance. Bondsmen generally take up to
10% to 15% of the bail amount as an upfront fee for their services, and require indemnification from the defendant or her guarantors in the event that the bond is forfeited.
Bondsmen also frequently take security interests in the property of the defendant or
her guarantors.

284  In re

Wilson, 252 B.R. 739 (B.A.P. 8th Cir. 2000).
U.S. 103, 103 S. Ct. 986, 74 L. Ed. 2d 845 (1983).
286  Lugo v. Paulsen, 886 F.2d 602 (3d Cir. 1989); In re Hollis, 810 F.2d 106 (6th Cir. 1987); McNelis v.
Verano (In re McNelis), 2013 WL 5376525 (Bankr. M.D. Pa. Sept. 25, 2013); In re Curtin, 206 B.R. 694
(Bankr. D.N.J. 1996).
287  Williams v. Motley, 925 F.2d 741 (4th Cir. 1991) (service fee attached to parking fine dischargeable);
In re Pulley, 295 B.R. 28 (Bankr. D.N.J. 2003), aff’d, 303 B.R. 81 (D.N.J. 2003).
288  Some states also authorize the re-application of bail to outstanding criminal justice debt. Idaho
Code Ann. § 19-2908; Obregon v. State, 703 N.E.2d 695, 696 (Ind. Ct. App. 1998); Maine Comm’n on
Indigent Legal Services ch. 401, § 2(1). But see State v. Zamarron, 806 N.W.2d 128 (Neb. Ct. App. 2011)
(application of bond to court costs not allowed).
285  460

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The dischargeability of forfeited bail and bond debt in a chapter 7 bankruptcy is frequently litigated, and has been accorded varying treatment across jurisdictions. The
primary factor courts have looked to is who owes the debt, and to whom.289 In cases
where the defendant owes the state directly for forfeited bail, the debt has been deemed
a “forfeiture” which is “payable to and for the benefit of a governmental unit” and thus
excepted from discharge.290 Courts have found this to be the case even where the debtor
is not the criminal defendant, but rather the criminal defendant’s personal guarantor (usually a family member). While the debtors in such cases are not the defendants,
and not subject to debt imposed as part of a criminal sentence, such debts have been
nevertheless deemed to be in the nature of a “forfeiture,” and their non-dischargeability justified based on the same reluctance of the bankruptcy courts to interfere with
administration of criminal justice proceedings.291 In cases where a debt for forfeited
bail is owed to the private bondsman, rather than the state, most courts have found the
debt is either not in the nature of a “fine, penalty, or forfeiture,” or it is not owed “to and
for the benefit of a governmental unit,” and is thus subject to discharge.292
To the extent that a bondsman’s fee is itself financed by the bondsman or a third party,
a common practice in some jurisdictions, that debt may be dischargeable in a chapter
7 bankruptcy as long as no forfeiture takes place. There does not appear to be a case
where this issue has been litigated. However, as bondsmen regularly take security in collateral like homes and vehicles, even if the debt for the bondsman’s fee is discharged a
bondsman may still be able to foreclose on the security interest. Still, it may be possible
to reduce or eliminate the bail bondsman’s lien in a chapter 13 case.293
5.3.2.8.	 Interest in Chapter 7
Interest on criminal justice debt has generally been found to be dischargeable only to
the extent the underlying debt is dischargeable.294 Flowing from this, to the extent interest is generated upon an indigent defense fee balance, it should be dischargeable (and
should have the same rate of interest as is allowable under rules for a civil judgment).

289  Affordable

Bail Bonds, Inc. v. Thompson (In re Thompson), 2007 WL 2738171 (Bankr. N.D. Okla.
Sept. 12, 2007) (good discussion of the three major configurations of parties in bail bond
dischargeability).
290  Virginia v. Collins (In re Collins), 173 F.3d 924, 932 n.4 (4th Cir. 1999).
291  In re Gi Nam, 273 F.3d 281 (3d Cir. 2001); United States v. Zamora, 238 B.R. 842 (D. Ariz. 1999).
292  In re Sandoval, 541 F.3d 997 (10th Cir. 2008); In re Hickman, 260 F.3d 400 (5th Cir. 2001); In re
Sanchez, 365 B.R. 414 (Bankr. S.D.N.Y. 2007); In re Lopes, 339 B.R. 82 (Bankr. S.D.N.Y. 2006).
293  See National Consumer Law Center, Consumer Bankruptcy Law and Practice § 11.6 (11th ed. 2015),
updated at www.nclc.org/library (general discussion of dealing with claims of secured creditors).
294  In re Parsons, 505 B.R. 540 (Bankr. D. Haw. 2014); State v. Cunningham, 69 P.3d 358 (Wash. Ct. App.
2003).

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5.3.2.9.	 Collection Costs in Chapter 7
As noted elsewhere in this report, third party collection by private contractors is becoming a more prevalent feature in the collection of criminal justice debt. In many instances,
these companies collect their fee off the top of the debtor’s delinquent balance. These
fees can be as high as 40 percent of the total amount owed.295 Collection fees imposed
by private debt collectors have been found dischargeable, as they are not due and owing
to governmental entities, nor are they in and of themselves punitive.296 The latter part
of this logic would seem to hold true for collection costs imposed by governmental
collectors as well, although there do not appear to be any cases clearly discussing this
distinction.

5.4.	 Criminal Justice Debts in Chapter 13
5.4.1.	 Introduction
In contrast to chapter 7, chapter 13 can provide relief from a somewhat broader,
although not entirely comprehensive, variety of criminal justice debt. Unlike the chapter 7 process of liquidation and distribution of assets by the Trustee, the chapter 13
reorganization process allows debtors to place some or all of their debts into a plan
for payment. The debtor’s chapter 13 plan payments are based on the debts to be paid
under the plan, the requirements of chapter 13, and the debtor’s ability to pay based on
disposable income. In most instances criminal justice debt is unsecured debt, meaning
that there is no collateral that can be taken by the creditor in the event of nonpayment.
Depending upon the amount of the debtor’s nonexempt property and income left over
after paying necessary living expenses, the debtor’s plan may pay unsecured creditors at
less than one-hundred percent of what they are owed, in some cases as low as zero to ten
percent. In most cases consumers are not required to pay unsecured creditors for any
interest, late fees, and other penalty charges incurred once the chapter 13 case is filed.
Provided that the plan is approved by the court and then successfully completed, the
bankruptcy court will grant the so-called “super-discharge” to the debtor—thus named
because of the relatively smaller number of exceptions to discharge as compared to
chapter 7. The debtor’s liability on the remaining portion of any debt provided for
under the plan that was not paid during the plan is eliminated once the discharge is
entered. It is notable that, in recent years, the broad nature of the super-discharge has
eroded and is now subject to more exceptions. Nonetheless, even for debt that is not
295  Fla.

Stat. § 28.246.

296  In re Lopez, 531 B.R. 554 (Bankr. E.D. Pa. 2015); In re Dickerson, 510 B.R. 289 (Bankr. D. Idaho 2014);

In re O’Brien, 110 B.R. 27 (Bankr. D. Colo. 1990). To the extent that percentage fees are calculated
from balances comprised of indigent defense fees, there may also be equal protection arguments
against exception from discharge. See § 2.3, supra.

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dischargeable under either chapter, chapter 13 can sometimes be used to force a more
reasonable payment plan for non-dischargeable criminal justice debt.297
There are limitations to chapter 13. For instance, a debtor needs a steady income in
order to qualify, though that income can be from public assistance, child support,
Social Security, a pension, or any other form of regular income. In some cases, the plan
also may be funded by the sale of the debtor’s property. The plan must be approved by
the court, and cannot unfairly discriminate among various similar creditors. If the plan
fails, the debtor can seek a hardship discharge, but that discharge is subject to the same
limits as a chapter 7 discharge.
Prior to 1990, the nature of chapter 13 dischargeability under 11 U.S.C. § 1328 was
subject to varying interpretations. Courts wrestled with the idea of whether criminal
justice debt was a debt at all, or whether it was a type of obligation that was not subject to the framework of bankruptcy.298 In Pennsylvania Department of Public Welfare v.
Davenport, which like Kelly involved a debtor facing restitution after a conviction for
welfare fraud, the Supreme Court held restitution to be dischargeable in a chapter 13
case notwithstanding the holding in Kelly. The Court relied on the definition of “debt”
in the Bankruptcy Code and the differences between the chapter 7 and chapter 13 discharge provisions.299 The majority determined that section 523(a)(7) did not apply to
the broader chapter 13 discharge, as it was omitted from the more limited set of exceptions to discharge enumerated by statute in chapter 13. In so holding, the Court stated
that “[t]he dischargeability of debts in chapter 13 that are not dischargeable in chapter
7 represents a policy judgment that [it] is preferable for debtors to attempt to pay such
debts to the best of their abilities over three years rather than for those debtors to have
those debts hanging over their heads indefinitely, perhaps for the rest of their lives.”300
The decision in Davenport led to a quick response from Congress, which amended
the chapter 13 statutory exceptions to discharge to include restitution included as
part of a sentence in a criminal case. Notably, this legislative change did not include
fines, preserving the broader chapter 13 discharge for criminal justice debt other than

297  In re

Coulter, 305 B.R. 748 (Bankr. D.S.C. 2003).

298  In re Norman, 95 B.R. 771 (Bankr. D. Colo. 1989) (fines, costs, and victim’s assistance surcharge non-

dischargeable in chapter 13); In re Ferris, 93 B.R. 729 (Bankr. D. Colo. 1988); In re Cullens, 77 B.R.
825 (Bankr. D. Colo. 1987) (restitution properly discharged in chapter 13 prevented state from
revoking probation).
299  Pennsylvania Dep’t of Pub. Welfare v. Davenport, 495 U.S. 552, 563, 110 S. Ct. 2126, 109 L. Ed. 2d 588
(1990).
300  Id.

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restitution.301 However, four years later in 1994, fines included in a criminal sentence
were also excepted from discharge.302
5.4.2.	 Criminal Justice Debt Subject to Discharge in Chapter 13
In contrast to the complicated exception analysis applicable to chapter 7, the application of chapter 13 to criminal justice debt is straightforward. Under chapter 13 all
criminal justice debt except punitive fines or restitution entered as part of a sentence in
a criminal case is generally dischargeable upon successful completion of a chapter 13
plan. Types of criminal justice debt that have been classified as dischargeable in chapter
13 include court costs303 and costs of prosecution.304
Fines and restitution must be included in a criminal sentence in order to be excepted
from discharge, which means that discharge may be had if the advocate can successfully
argue that the underlying nature of the action is not criminal. Mere association with a
criminal act is not enough to invoke the discharge exception.305 However, “conviction
of a crime” has been interpreted broadly to include a guilty plea followed by probation,
without formal conviction.306
Municipal court fines and traffic fines are frequently found to be dischargeable in chapter 13 if the underlying nature of the action is determined to be civil rather than criminal.307 Juvenile delinquency restitution debt has been found dischargeable given that a
juvenile adjudication is considered non-criminal under federal and state law, notwithstanding the fact that the underlying conduct was analogous to criminal conduct.308
However, simply because a restitution judgment is civilly enforced or assigned to a third
party does not mean it is dischargeable.309
5.4.3.	 Plan Confirmation
If the bankruptcy plan is considered to unfairly discriminate between a class of creditors, favoring some more strongly than the others within the designated class, the court
301  In re

Hardenberg, 42 F.3d 986 (6th Cir. 1994).

302  11 U.S.C. § 1328(a)(2). See also Michigan Unemployment Ins. Agency v. Andrews (In re Andrews), 2015

WL 5813418 (Bankr. E.D. Mich. Oct. 2, 2015) (rejecting attempt to use § 523(a)(2)(A) exception to
discharge for fraud, as the debt was owed to the government rather than between private parties).
303  In re Hardenberg, 42 F.3d 986 (6th Cir. 1994).
304  In re Ryan, 389 B.R. 710 (B.A.P. 9th Cir. 2008).
305  In re Fleisch, 543 B.R. 166 (Bankr. M.D. Pa. 2015).
306  Wilson v. Cumis Ins. Soc’y, Inc. (In re Wilson), 252 B.R. 739, 742 (B.A.P. 8th Cir. 2000).
307  In re Raphael, 238 B.R. 69 (D.N.J. 1999); In re Osorio, 522 B.R. 70 (Bankr. D.N.J. 2014); In re Colon,
102 B.R. 421 (Bankr. E.D. Pa. 1989). See also In re DeBaecke, 91 B.R. 3 (Bankr. D.N.J. 1988) (insurance
surcharges imposed for traffic violations are dischargeable debts in chapter 13).
308  In re Sweeney, 492 F.3d 1189 (10th Cir. 2007).
309  In re Bova, 326 F.3d 300 (1st Cir. 2003).	

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may deny confirmation and thus deprive the debtor of relief.310 Although chapter 13
can sometimes be used to force a more reasonable payment plan even for debt that is
not dischargeable, plans that provide for payment of selected non-dischargeable debts
have sometimes been seen as being discriminatory.311 Plans that only include restitution
while paying nothing on other unsecured debts have been denied as discriminatory,312
as have plans that give preference to otherwise dischargeable traffic fines.313 However,
the debtor may be able to show that a plan does not unfairly discriminate, such as when
the debtor’s failure to pay restitution or other debt included in a criminal sentence
might lead to the loss of employment.314
A plan must also be proposed “in good faith,” or be subject to denial.315 To determine
whether a plan is in good faith, courts will look at “[f]actors such as the type of debt
sought to be discharged, whether the debt is non-dischargeable in chapter 7, and the
debtor’s motivation and sincerity in seeking chapter 13 relief[.]”316 Citing these factors,
at least one court has denied a plan that proposed to pay only restitution and indigent
defense fees.317 Other courts, however, have found plans to be filed in good faith even if
they provide for debts that would be non-dischargeable in chapter 7, as long such debts
are dischargeable in chapter 13.318

6.  PROTECTING ASSETS, WAGES, AND BENEFITS FROM
INVOLUNTARY COLLECTION
6.1.	 Introduction
Governmental actors have at their disposal a wide variety of civil methods to collect
criminal justice debt in addition to the threat of incarceration for failure to pay. These
methods may include enhanced versions of garnishment of wages and bank accounts,
310  11

U.S.C. § 1322(b)(1). See National Consumer Law Center, Consumer Bankruptcy Law and Practice
§ 12.4 (11th ed. 2015), updated at www.nclc.org/library (general discussion of separate classification
of claims).
311  In re Gallipo, 282 B.R. 917 (Bankr. E.D. Wash. 2002); In re Ponce, 218 B.R. 571 (Bankr. E.D. Wash.
1998).
312  In re Limbaugh, 194 B.R. 488 (Bankr. D. Or. 1996).
313  In re Osorio, 522 B.R. 70 (Bankr. D.N.J. 2014); In re Games, 213 B.R. 773 (Bankr. E.D. Wash. 1997).
314  See, e.g., In re Etheridge, 297 B.R. 810 (Bankr. M.D. Ala. 2003) (debtor who feared losing her job as a
teacher permitted to separately classify bad check debt that was subject of criminal proceedings).
315  See National Consumer Law Center, Consumer Bankruptcy Law and Practice § 12.3 (11th ed. 2015),
updated at www.nclc.org/library (general discussion of plan confirmation requirements).
316  In re LeMaire, 898 F.2d 1346 (8th Cir. 1990).
317  In re Emerson, 1991 WL 11731127 (Bankr. S.D. Iowa Apr. 5, 1991).
318  In re Short, 176 B.R. 886 (Bankr. S.D. Ind. 1995).

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alternative administrative levy processes, and offset of public benefits and tax refunds.
As a practical matter, these types of involuntary or coercive collection practices often create
the crises that will drive many clients to contact an attorney in order to seek relief. Particularly for the many people with criminal justice debt living below the poverty line, the
abrupt loss of wages or benefits that are already stretched thin can cause cascading crises.
It is therefore valuable for advocates to understand the strategies available to challenge
or limit involuntary collection of criminal justice debt. This section addresses strategies
specific to involuntary debt collection, focusing on the application of state and federal
exemptions to criminal justice debt collection. The section also highlights the susceptibility of involuntary collection practices to due process challenges for not providing
adequate notice and an opportunity to be heard.
Advocates should also keep in mind strategies to avoid collection of the debt at all. For
example, in any case where a debtor faces involuntary debt collection, the constitutional
and statutory arguments outlined in Sections 2 and 4 should be available. Additionally, collection may be avoidable in some jurisdictions through entry of a repayment
agreement with the entity collecting, or through demonstration of financial hardship
or inability to pay. Advocates should therefore determine if such avenues for relief are
available in their jurisdiction and if so whether they present good options for the client.

6.2.	 Purposes of Exemption Laws
To balance the potentially devastating effects of unchecked collection on the debtor, the
debtor’s family, and society at large, federal, state, and local legislatures have enacted
various “debtor’s exemption” laws.319 These exemptions allow debtors to retain certain
property and income enumerated in the law, even in the face of involuntary collection
processes. This exempted property and income—often necessary for the basic survival of
the debtor and her household—is thus protected from involuntary collection methods
such as garnishment, attachment, levy, and execution. Depending on the jurisdiction,
exempted property can include everything from the tools of one’s trade, to a homestead,
to personal earnings or public benefits.
Exemption laws are venerable, and recognize the longstanding value of allowing debtors to preserve enough of their property to maintain a basic standard of living for their
families. Over 100 years ago, in holding that exemption laws applied to enforcement
of fines and costs, the Kentucky Court of Appeals wrote that exemption statutes were
“designed to protect the family. The exemption is not for the benefit of the debtor; it
319  See

generally National Consumer Law Center, Collection Actions Ch. 12, Appxs. C, D, E, G (3d ed.
2014), updated at www.nclc.org/library (detailed text and statutory appendices regarding debtor’s
exemptions generally).

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is for the benefit of the family. It is to the interest of the state that children should be
protected from want, and that families should be kept together.”320

6.3.	 Whether Exemption Laws Apply to Criminal Justice Debt
Despite this clear and longstanding policy, the application of debtor’s exemptions to
the collection of criminal justice debt has evolved into a highly complex area, given
the interplay between civil and criminal law, and between federal, state, and municipal law. By way of example, some states’ collection statutes explicitly provide that no
exemptions apply to the involuntary collection of criminal justice debt,321 theoretically
allowing for 100% of a debtor’s income and assets to be taken by involuntary collection
mechanisms. As discussed in § 6.6.1, supra, these statutes appear to be preempted by federal law protecting certain kinds of property. Other states explicitly segregate criminal
justice debt from other types of debt and provide a more limited set of exemptions for
criminal debt.322 Most commonly, state codes are simply silent on the issue, and leave it
up to courts to determine on an ad hoc basis.
Another complication in determining the applicability of exemption law is presented
by the much wider array of collection mechanisms available to the government than
to private creditors. For example, both the federal government323 and several states324
have alternative “administrative garnishment” procedures by which employers, banks,
or other entities can be ordered to turn over the debtor’s funds to the state, without
court involvement. Administrative garnishment procedures, contrasted with judicial
garnishment, are carried out by agencies rather than a court, and are generally conducted in a highly automated fashion with a minimum of process. Similarly, both the
320  Commonwealth

v. Cassady, 169 S.W. 497 (Ky. 1914). See also Commonwealth v. Lay, 75 Ky. 283 (Ky.
1876). See generally National Consumer Law Center, Collection Actions § 12.2.2 (3d ed. 2014), updated
at www.nclc.org/library (purposes and liberal construction of state exemption laws).
321  See, e.g., Haw. Rev. Stat. § 651-122; Iowa Code 909.7 (fines); Neb. Rev. Stat. 29-2407 (anyone sentenced
to less than two years of incarceration has no debtor’s exemptions in regard to fines, costs, and
forfeited recognizances); N.C. Gen. Stat. § 1C-1601(e) (exemptions do not apply to appearance bonds,
criminal justice debt liens, and restitution); 42 Pa. Cons. Stat. 8127(a)(5); State v. Allen, 71 Ala. 543
(Ala. 1873); Newburn v. RFB Petroleum, Inc., 775 P.2d 93 (Colo. Ct. App. 1989) (exemptions do not
apply to collection of fines).
322  See, e.g., Del. Code Ann. tit. 11, 4104(c) (limiting normal wage exemptions); N.Y. Executive Law §
632-a (McKinney) (Son of Sam Law); N.D. Cent. Code § 28-22-01; S.D. Codified Laws § 43–45–10;
Tenn. Code. Ann. § 26-2-306.
323  31 U.S.C. § 3720D (authorizing administrative wage garnishment to collect federal claims); 31 C.F.R.
pt. 285 (implementing regulations). See generally National Consumer Law Center, Collection Actions
§ 12.4.2.1 (3d ed. 2014), updated at www.nclc.org/library.
324  See, e.g., Iowa Code 421.17A (allowing administrative levy on bank account to collect debts owed to
the state); Va. Code Ann. § 19.2-349 (allowing state to collect fines, costs, forfeitures, and penalties
by using the setoff procedure created by statute for collection of delinquent taxes).

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federal government325 and most if not all states326 have a process by which tax refunds,
state benefits, and other money owed to the debtor by the governmental entity may be
set off against criminal justice debt.
Also, the type of criminal justice debt affects the analysis, and in particular whether
the fee is punitive or compensatory. That distinction is critical as a matter of many
state laws regarding garnishment, but also as a matter of federal constitutional law.
As mentioned throughout this report, a debtor who owes indigent defense fees may be
entitled on equal protection grounds to protections roughly commensurate with those
enjoyed by ordinary civil judgment debtors.327 However, given the increasing reliance of
governmental entities on user fees to fund the basic structure of the judicial system, the
constitutional logic of James v. Strange and its progeny should not be limited solely to
indigent defense fees. The transition from a system of mostly punitive debt to mostly
compensatory debt creates many opportunities to expand the constitutional reach of
James v. Strange to, for example, investigator and expert fees,328 jury fees,329 medical and
psychiatric examination costs,330 and the costs of interpreters.331 Wherever a clear twotiered system singles out some defendants for harsher treatment solely due to indigence, the advocate should consider whether James v. Strange may be applicable.

6.4.	 The Role of Exemption Laws at the Imposition Stage
Another complication is whether exemptions apply when the debt or a payment schedule is initially imposed, or only at the point when the debtor is being sanctioned for failing to pay it.332 Since exemptions are designed as defenses to be raised in post-judgment
collection actions and are tied to those processes, they are not generally directly applicable
in the context of imposition of criminal justice debt. Attempts to expand their scope to
cover the imposition of payment schedules, largely in the context of federal wage protection under the Consumer Credit Protection Act (CCPA), have been largely unsuccessful.333
325  31

U.S.C. §§ 3701, 3716; 31 C.F.R. §§ 285.4, 901.3. See generally National Consumer Law Center,
Collection Actions §§ 10.2.6–10.2.8 (3d ed. 2014), updated at www.nclc.org/library.
326  See, e.g., Colo. Rev. Stat. § 16-11-101.8; Iowa Code § 8A.504.
327  James v. Strange, 407 U.S. 128, 92 S. Ct. 2027, 32 L. Ed. 2d 600 (1972). See § 2.3, supra.
328  Martin v. State, 405 S.W.3d 944, 948 (Tex. App. 2013) (“Like the fees of a court-appointed expert or
attorney, an appointed investigator is ‘a basic tool’ an indigent defendant can use to present a
defense.”) See also Fant v. City of Ferguson, 2015 WL 4232917 (E.D. Mo. July 13, 2015) (equal
protection concerns raised in James v. Strange are applicable to criminal justice debt generally).
329  State v. Rideau, 943 So. 2d 559 (La. Ct. App. 2006).
330  Cal. Penal Code § 987.8 (West).
331  State v. Diaz-Farias, 362 P.3d 322 (Wash. Ct. App. 2015).
332  See generally § 3, supra (more detailed discussion of imposition issues in general).
333  See, e.g., United States v. Jaffe, 417 F.3d 259 (2d Cir. 2005); State v. Loving, 905 N.E.2d 1234 (Ohio Ct.
App. 2009).

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That said, there are at least two ways in which exemptions are relevant to imposition
of the debt and establishment of a mandatory installment payment plan. First, these
exemptions may provide a framework for ability-to-pay determinations. Some states
provide by statute or rule certain basic parameters tying ability to pay to certain factors,
for example percent of federal poverty guidelines or receipt of public benefits. However, most states provide no guidance at all as to what facts may demonstrate ability or
inability to pay. This discretionary void may be filled by borrowing from pre-existing
ability to pay determinations from other areas of the law. Debtor’s exemptions are one
of several models from which corollaries may be drawn – i.e. any debt that would be collectible only through levy or garnishment of exempt income or assets is not within the
debtor’s ability to pay.334
The second way that exemptions are relevant outside of involuntary post-judgment collection procedures is specific to the nature of mandatory installment plans. The federal
anti-alienation provisions for Social Security, Supplemental Security Income (SSI), benefits covered by the Employee Retirement Income Security Act (ERISA), and Veteran’s
Administration (VA) benefits are very broad. These clauses cover not only garnishment
and similar types of process like attachment and levy, but also forbid alienation of benefits by “other legal processes.”335 At the stage where a payment plan is imposed, imposing a plan where a criminal justice debtor’s only income comes from these sources, and
where the debtor faces sanctions such as incarceration or loss of licensure for nonpayment of an installment, may constitute “other legal process” and thus may be barred by
the anti-alienation provisions.

6.5.	 Exemptions Applicable to Federal Criminal Justice Debt Collection
6.5.1.	 Introduction
Federal criminal justice debt can be collected through a number of involuntary collection mechanisms, including judicial garnishment,336 administrative offset of federal
benefits, tax refunds, and other payments,337 administrative wage garnishment,338 and
334  See also

§ 3.4.3, supra (other models).

335  Philpott v. Essex County Welfare Bd., 409 U.S. 413, 93 S. Ct. 590, 34 L. Ed. 2d 608 (1973) (assignment

of future social security disability benefits to a state in return for receipt of immediate temporary
interim benefits violates anti-alienation provision). However, the term “other legal process” is not
unlimited. See generally National Consumer Law Center, Collection Actions § 12.5.3.2 (3d ed. 2014),
updated at www.nclc.org/library.
336  28 U.S.C. §§ 3201–206. Private parties who are owed victim restitution may also privately enforce
restitution orders by this section. United States v. Witham, 648 F.3d 40 (1st Cir. 2011).
337  31 U.S.C. §§ 3701, 3716; 31 C.F.R. §§ 285.4, 901.3. See National Consumer Law Center, Collection
Actions §§ 10.2.6–10.2.8 (3d ed. 2014), updated at www.nclc.org/library.
338  31 U.S.C. § 3720D; 31 C.F.R. § 285.11. See National Consumer Law Center, Collection Actions §

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incarceration.339 In addition, federal law provides that restitution debt may be collected
by “all other available and reasonable means.”340 As with any analysis of the applicability of consumer law protections to criminal justice debt collection, however, the subtype
of criminal justice debt determines the applicability of exemptions. Fines and restitution are explicitly subject to a different exemption scheme than are other types of federal criminal justice debt.341 These other types of criminal justice debt, such as federal
indigent defense fees or costs,342 are not separately addressed in statute as are fines and
restitution. Arguably, debts not discussed in the statute should be considered collectible in the manner of a normal civil judgment owed to a federal agency. For these debts,
the debtor has the right to choose either the federal bankruptcy code exemptions, or all
applicable state and non-bankruptcy federal exemptions.343
State law exemptions are generally not available in post-judgment proceedings to collect federal criminal justice debt.344 One exception is when state law post-judgment
procedures are used to collect federal criminal justice debt; in these instances, state law
exemptions may apply.345
6.5.2.	 Earnings
The earnings exemptions under the federal Consumer Credit Protection Act (CCPA)
explicitly apply to federal criminal justice debt, regardless of the type of underlying
debt (fines, costs, restitution, etc).346 The CCPA protects a certain amount of “disposable earnings.” The term “earnings” is defined as “compensation paid or payable for
personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.”347
The term “disposable earnings” means “that part of the earnings of any individual
remaining after the deduction from those earnings of any amounts required by law
12.4.2.1 (3d ed. 2014), updated at www.nclc.org/library.
U.S.C. §§ 3614–3615.
340  18 U.S.C. § 3664(m)(1)(A)(i).
341  18 U.S.C. § 3613.
342  18 U.S.C. § 3006A.
343  28 U.S.C. § 3014. See National Consumer Law Center, Collection Actions § 10.3.5 (3d ed. 2014),
updated at www.nclc.org/library.
344  United States v. Furkin, 165 F.3d 33 (7th Cir.1998) (table); United States v. Johnson, 2009 WL
1033773 (E.D. La. Apr. 15, 2009); United States v. Cunningham, 866 F. Supp. 2d 1050 (S.D. Iowa
2012); United States v. Citigroup Global Mkts., 866 F. Supp. 2d 1050 (E.D. Texas 2007).
345  Paul Revere Ins. Group v. United States, 500 F.3d 957 (9th Cir. 2007).
346  18 U.S.C. § 3613 (fines and restitution). Other federal criminal justice debt, such as indigent defense
fees, should be subject to the general laws concerning garnishment, and are thus also subject to
CCPA protections.
347  15 U.S.C. § 1672(a). See National Consumer Law Center, Collection Actions § 12.4.1.4 (3d ed. 2014),
updated at www.nclc.org/library.
339  18

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to be withheld.”348 The CCPA sets out a formula that allows for no more than 25% of
a debtor’s disposable wages to be garnished, with a minimum protected amount of
thirty times the current federal minimum wage.349 At this time, the minimum protected
weekly amount is $217.50.
Notwithstanding these limitations, courts sometimes order garnishment of earnings
in excess of the amounts allowed by the CCPA.350 Advocates should be aware of this
possibility and raise the issue in a motion to quash. Also, federal courts are empowered
to garnish less than the maximum amount allowed by law.351 Unlike many state law
wage exemption regimes, federal law is silent as to what discretionary factors should be
considered by the courts in reducing the amount below the maximum. The advocate is
thus free to establish her own. Some sources the advocate may analogize to are those
state exemption statutes that require consideration of an open-ended list of equitable
factors, such as number of dependents, health considerations, age, and other considerations.352 Other potential standards are the National Collection Standards employed
by the IRS,353 or those for income-driven repayment options for federally connected
student loans.354
A major source of litigation in this area has been the protection of payments such as
such as disability and retirement benefits that are derived from earnings. Some courts
have held that private disability payments are derived from earnings and are protected
by the CCPA.355 In United States v. France, the Seventh Circuit came out the other way
and held private disability benefits not to be earnings for the purposes of CCPA.356 The
debtor filed for certiorari to the U.S. Supreme Court, but before the Court considered the
petition, the Solicitor General reversed its position, conforming it to the current interpretation of the U.S. Department of Labor, which considers these payments as “earn348  15

U.S.C. § 1672(b).
U.S.C. § 1673. See National Consumer Law Center, Collection Actions § 12.4.1.5 (3d ed. 2014),
updated at www.nclc.org/library (calculation of protected amounts).
350  See, e.g., United States v. Mayes, 2007 WL 3001670 (S.D. Oct. 10, 2007) (amount mentioned in opinion
exceeds maximum under the CCPA).
351  United States v. George, 144 F. Supp. 2d 161 (E.D.N.Y. 2001). See National Consumer Law Center,
Collection Actions § 10.3.4.3 (3d ed. 2014), updated at www.nclc.org/library.
352  See, e.g., Iowa Code § 630.3A.
353  Available at https://www.irs.gov/businesses/small-businesses-self-employed/collection-financialstandards/ See also Internal Revenue Manual 5.15.1.
354  See generally National Consumer Law Center, Student Loan Law § 3.3 (5th ed. 2015), updated at www.
nclc.org/library. See also Fed. Student Aid, Income-Driven Repayment Plans for Federal Loans
Resource, available at https://studentaid.ed.gov/sa/sites/default/files/income-driven-repayment
.pdf.
355  United States v. Ashcraft, 732 F.3d 860 (8th Cir. 2013). See generally National Consumer Law Center,
Collection Actions § 12.4.1.4.1 (3d ed. 2014), updated at www.nclc.org/library.
356  United States v. France, 782 F.3d 820 (7th Cir. 2015).
349  15

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ings” protected by the CCPA.357 The Supreme Court then vacated the Seventh Circuit’s
judgment and remanded the case for further consideration in light of the Solicitor General’s confession of error.358 The application of the CCPA to retirement benefits is discussed in more detail in § 6.5.4, infra.
6.5.3.	 Federal and State Public Benefits and Tax Refunds
The federal statutory scheme regarding enforcement of federal fines and restitution
incorporates by reference most of the exemptions available against tax collection under
the Internal Revenue Code.359 Under this regime, Railroad Retirement Board pensions,
unemployment insurance benefits, workmen’s compensation, and service-connected
Veterans’ Benefits remain wholly exempt from involuntary collection of federal criminal justice debt, regardless of the particular type of debt (fines, restitution, etc).360
The statute does not incorporate the Internal Revenue Code’s protection of wages,
TANF, SSD, SSI, the debtor’s homestead,361or any state issued needs-based public
assistance.362 The statute does, however, provide that the CCPA’s protections for wages
apply to federal criminal justice debt.363 Since the CCPA defines wages to include “periodic payments pursuant to a pension or retirement program,364 it appears that the
CCPA’s limits on garnishment (allowing garnishment of no more than 25% of disposable earnings, and requiring that the debtor be left with at least thirty times the minimum wage) operate as a limit on garnishment of Social Security benefits. The Social
Security Administration Program Operations Manual (SSAPOMS) is consistent with
this view, indicating that the agency’s interpretation is that the CCPA limits apply to
garnishment of Social Security benefits for federal criminal justice debt.365

357  Brief

of United States of Am., United States v. France, No. 15-24 (Nov. 6, 2015).
v. United States, ___ U.S. ___, 136 S. Ct. 583, 193 L. Ed. 2d 465 (2015).
359  18 U.S.C. § 3613 (incorporating 26 U.S.C. § 6334(a)(1) to (8), (10), and (12) by reference).
360  26 U.S.C. § 6334.
361  18 U.S.C. § 3613(a)(1) (incorporating a number of sections of 26 U.S.C. § 6334, but not § 6334(a)(13),
which provides a protection for the debtor’s home).
362  18 U.S.C. § 3613(a)(1).
363  18 U.S.C. § 3613(a)(3).
364  15 U.S.C. § 1672(a). See National Consumer Law Center, Collection Actions § 12.4.1.4.1 (3d ed. 2014),
updated at www.nclc.org/library.
365  Social Security Admin., Program Operations Manual Sys. GN 02410.223 Garnishment for Court
Ordered Victim Restitution, available at https://secure.ssa.gov/poms.nsf/lnx/0202410223. While the
interpretation of the limiting effect of the CCPA is positive to criminal justice debtors, this POMS
section is problematic in that it does not clearly delineate between federal criminal justice debt,
which can reach social security benefits to some extent, and state criminal justice debt, for which
social security benefits are wholly unavailable. See Bennett v. Arkansas, 485 U.S. 395, 108 S. Ct. 1204,
99 L. Ed. 2d 455 (1988).
358  France

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Other federal payments, such as tax refunds, vendor payments, and the like are theoretically available for administrative offset in their entirety, and therefore no exemptions
protect these funds from offset.366
6.5.4.	 Retirement Benefits
Normally, benefits covered by the federal Employee Retirement Income Security Act
(ERISA) are protected in their entirety from civil post-judgment remedies prior to
distribution,367 as are section 401k retirement savings plans.368 In 1990, the Supreme
Court gave the anti-alienation provision in ERISA a broad reading, finding that the
provision completely protected benefits covered by ERISA in connection with proceedings to collect restitution.369 Guidry is still good law in regard to state criminal justice
debt,370 but has since been superseded by statute in regard to federal debts for fines and
restitution.371
Although ERISA does not protect these retirement plans from garnishment, the CCPA’s
protections do apply.372 As a result, garnishment of retirement plan payments is limited
to 25%, and the debtor must be left with at least thirty times the minimum wage. Since
this limit is found in the CCPA, not ERISA, it applies to all “periodic payments purusant
to a pension or retirement program,”373 not just those that fall within ERISA’s scope.
However, a number of courts have held that the debtor’s right to receive a lump-sum
pension distribution, as opposed to periodic payments, is not protected, and can be
seized to pay a federal debt for a fine or restitution.374 The federal government can,
however, “only reach a [debtor’s] present rights.” 375 Consequently, if a pension or retirement fund is not available to the debtor as a lump sum, both the corpus and a minimum of 75% of each periodic payment will be exempt.

366  31

U.S.C. § 3716.
U.S.C. § 1056(d).
368  26 U.S.C. § 401(a)(13)
369  Guidry v. Sheet Metal Workers Nat’l Pension Fund, 493 U.S. 365, 110 S. Ct. 680, 107 L. Ed. 2d 782
(1990)
370  See § 6.6.4, infra.
371  18 U.S.C. § 3613(a) (allowing enforcement of federal fines and restitution “[n]otwithstanding any
other Federal law”). See United States v. Irving, 452 F.3d 110, 126 (2d Cir. 2006).
372  United States v. DeCay, 620 F.3d 534 (5th Cir. 2010).
373  15 U.S.C. § 1672(a).
374  United States v. Ashcraft, 732 F.3d 860 (8th Cir. 2013); United States v. Lee, 659 F.3d 619, 622 (7th
Cir. 2011); United States v. DeCay, 620 F.3d 534 (5th Cir. 2010); United States v. Beulke, 892 F. Supp.
1176 (D.S.D. 2012); United States v. Cunningham, 866 F. Supp. 1050 (S.D. Iowa 2012).
375  See United States v. Novak, 476 F.3d 1041 (9th Cir. 2007).
367  29

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6.5.5.	 Bank Accounts
The operative factual question for determining the extent to which a deposit account
is exempt is the character of the underlying funds. The operative legal question is
under what circumstances the exempt nature of the funds changes after deposit—i.e.,
how a debtor might use the deposited funds to remove the exemption. The answer to
this second question varies considerably from jurisdiction to jurisdiction, with some
states providing that the act of deposit removes the exemption automatically,376 while
others allow for a reasonable period of time to actually use the funds before the exemption expires.377 Key federally connected benefits, such as Social Security and Veteran’s
Administration benefits, retain their exemption upon deposit into a bank account,378
and a federal regulation requires banks to give automatic protection to certain of these
benefits for 60 days as long as they are not transferred to a new account.379

6.6.	 Federal Exemptions Applicable to State and Municipal Criminal Justice
Debt Collection
6.6.1.	 Introduction
The application of exemptions to state and municipal criminal justice debt generally
is explored below. Some states are silent to the application of exemptions to criminal
justice debt, or explicitly allow their application. However, a significant number of state
laws restrict or even fully abolish the general application of any debtor’s exemptions to
collection of criminal justice debts,380 without distinguishing between those exemptions established by federal law versus those established under state law. These statutes are enacted notwithstanding the fact that such blanket prohibitions on the use of
exemptions are preempted in regard to exemptions based in federal law—states cannot
abrogate those protections.381 Courts have rejected the argument that concerns of federalism bar application of federal exemptions to state collection actions.382
Furthermore, in regard to certain types of criminal justice debt connected specifically
to indigence, such as indigent defense fees, states or municipalities might violate the

376  Frazer

v. Smith, 907 P.2d 1384 (Ariz. 1995).
Sav. Bank v. Miehe, 438 N.W.2d 837 (Iowa 1989). See generally National Consumer Law
Center, Collection Actions § 12.6.2 (3d ed. 2014), updated at www.nclc.org/library.
378  See National Consumer Law Center, Collection Actions § 12.6.2.2 (3d ed. 2014), updated at www.nclc
.org/library.
379  31 C.F.R. pt. 212. See National Consumer Law Center, Collection Actions § 12.6.3.1 (3d ed. 2014),
updated at www.nclc.org/library.
380  See § 6.3, supra.
381  Bennett v. Arkansas, 485 U.S. 395, 108 S. Ct. 1204, 99 L. Ed. 2d 455 (1988).
382  Pomeranke v. Williamson, 478 N.W.2d 800 (Mn. Ct. App. 1991)
377  Midamerican

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Equal Protection clause if they employ debt collection strategies not available to private
creditors. Denial of debtor’s exemptions to indigent defense fee debtors is the very heart
of James v. Strange.383 As a result, even when the statute is silent, many states will read the
applicability of federal exemptions into an indigent defense fee recovery statute in order
to preserve the statute’s constitutionality.384
6.6.2.	 Earnings
The application of the federal limitation on garnishment of wages in the CCPA to state
and municipal criminal justice debt can be tricky. The general rule is that the CCPA preempts state law to the extent that the state law is less protective of earnings.385 However,
some state courts have held that the CCPA does not apply to state criminal justice debt
at all. One court’s rationale for non-application was the broad notion that the CCPA is
confined to garnishment by consumer finance lenders386—a position inconsistent with
the CCPA’s explicit application to child support garnishment387 and its provision singling out debts for state or federal taxes for exclusion.388 Another court reasoned that
prisoners do not have to provide for basic household needs in the same way as a debtor
who is not incarcerated, thus obviating the need to protect income.389 This rationale
does not hold up under scrutiny either, as prisons often charge prisoners for a host of
items, including telephone calls. A prisoner also has a particularly acute need to protect
funds necessary for a successful reentry.
6.6.3.	 Benefits
The clearest case for universal application of federal debtor’s exemptions to state and
municipal criminal justice debt is certain federal entitlement benefits—most notably
SSI,390 VA,391 and Social Security.392 These broadly written federal anti-alienation provisions provide that, except under extremely limited circumstances, these benefits cannot
be garnished by the state at their source, including for criminal justice debt, and preempt state law to the contrary.393

383  James

v. Strange, 407 U.S. 128, 92 S. Ct. 2027, 32 L. Ed. 2d 600 (1972). See § 2.3, supra.
State v. Albert, 899 P.2d 103 (Alaska 1995); State v. Kottenbroch, 319 N.W.2d 465 (N.D. 1982);
State v. Blank, 930 P.2d 1213 (Wash. 1997), aff’d, 930 P.2d 1213 (Wash. 1997).
385  Marshal v. Safeway, Inc., 88 A.3d 735 (Md. 2014); Anderson v. Anderson, 404 A.2d 275 (Md. 1979).
386  Carter v. State ex rel. Bullock County, 393 So. 2d 1368 (Ala. 1981).
387  15 U.S.C. § 1673(b)(1)(C).
388  15 U.S.C. § 1673(b)(2).
389  State Treasurer v. Gardner, 583 N.W.2d 687 (Mich. 1998).
390  42 U.S.C. § 1383(d)(1).
391  38 U.S.C. § 5301(a)(1).
392  42 U.S.C. § 407.
393  Bennett v. Arkansas, 485 U.S. 395, 108 S. Ct. 1204, 99 L. Ed. 2d 455 (1988).
384  See

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States can, under certain conditions, access federal payments for offset under the federal Treasury Offset Program by executing an agreement with the U.S. Department of
Treasury’s Bureau of Fiscal Service.394 But in that case, the State must enact regulations
that provide for certain due process protections. And even if such an agreement has
been signed and the appropriate regulations enacted, the state has more limited access
to federal funds than the federal government—notably, the states cannot offset Social
Security or SSI.395
6.6.4.	 Retirement Benefits
ERISA’s anti-alienation provision protects covered benefits from involuntary collection for state and municipal criminal justice debt.396 ERISA’s anti-alienation provision
is broad, clear, and unambiguous,397 as are the comparable statutory protections for
most if not all types of non-ERISA retirement benefits.398 The federal statute carving
out federal criminal justice debt from these exemptions is not applicable to state and
municipal criminal justice debt.399 This means broad protection against involuntary
collection, although the advocate should keep in mind that ERISA protections do not
survive long past the date of disbursement, if at all.400
6.6.5.	 Student Loan Disbursements
Federal student loan proceeds, grants, and work assistance are protected by federal law
from garnishment and attachment arising from state and municipal criminal justice
debt.401 This protection explicitly extends to property traceable to the proceeds of these
exempt funds. There are few cases addressing this specific anti-alienation provision.
However, it has been successfully used to protect funds traceable to federal student
loans and grants from state criminal justice debt collection in an unreported case.402

394  31

U.S.C. § 3716(h). It is unclear at the time of publication what states may have such reciprocal
agreements that would cover criminal justice debt.
395  31 U.S.C. § 3716(h)(3).
396  29 U.S.C. § 1056(d)(1) (ERISA benefits); 26 U.S.C. § 401(a)(13) (§ 401k)
397  See Guidry v. Sheet Metal Workers Nat. Pension Fund, 493 U.S. 365, 110 S. Ct. 680, 107 L. Ed. 2d 782
(1990).
398  State ex rel. Nixon v. McClure, 969 S.W.2d 801 (Mo. Ct. App. 1998) (federal civil service retirement
could not be reached to pay state court imposed costs for incarceration).
399  See § 6.5.4, supra.
400  In re Sinclair, 417 F.3d 527 (5th Cir. 2005) (the extent to which exempt income and assets maintain
their exemption after disbursement and deposit is governed by state law).
401  20 U.S.C. § 1095a(d).
402  Ashton v. Knepp, 2014 WL 3845117, at *14-15 (M.D. Pa. Aug. 5, 2014).

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6.7.	 State Exemptions Applicable to State and Municipal Criminal Justice Debt
Collection
6.7.1.	 State Exemptions Overview
State exemptions protect a whole host of personal property from involuntary collection, ranging from longstanding protections for a musket, the family bible, and the
homestead, to more modern protections for insurance awards, retirement benefits, and
public assistance. The application of state exemptions to criminal justice debt varies
widely from state to state, and application of each state’s system to criminal justice
debt is often far from clear. It is more difficult to draw principles of general applicability
from this varied field than in the comparatively simpler area of federal exemption and
anti-alienation law in state criminal justice debt situations. What follows is a survey of
some of the areas where exemption issues most often arise. As always, equal protection
concerns under James v. Strange and Fuller v. Oregon may create opportunities to expand
remedies to at least match those enjoyed by civil judgment debtors.403
As mentioned above, a number of states expressly provide that their exemptions do
not apply to claims arising from certain kinds of criminal justice debt.404 Even though
states do not have the authority to abrogate federal exemptions, the applicability of
state exemptions is a within a state’s discretion, so these exclusions matter. By contrast,
some statutes explicitly provide that exemptions apply in criminal justice debt situations.405 Other statutes simply say that a criminal justice debt shall be collected as a civil
judgment, without further specifying the availability or unavailability of exemptions.406
The attorney should also remember that the type of debt—fines, restitution, indigent
defense fees, etc.—often affects the analysis. Fines, for example, are a subcategory of criminal justice debt that courts sometimes find not to be subject to state exemptions, on the
ground that the nature of the debt is strictly penal.407 A statute that makes state exemptions inapplicable to fines may not apply to restitution, however.408 Most states are silent
403  See

§ 2.3, supra.
§ 6.3, supra.
405  See, e.g., Fla. Stat. § 938.30(5); S.D. Codified Laws 43-45-10; Betterton v. O’Dwyer, 101 S.W. 628 (Mo.
Ct. App. 1907); State v. Threatt, 108 Ohio St. 3d 277 (Ohio 2006); State v. White, 817 N.E.2d 393
(Ohio 2004).
406  See, e.g., Or. Rev. Stat. § 137.450; Iowa Code 910.7; Del. Code Ann. tit. 10, 8603; Ga. Code Ann. §§
17-14-13 to 17-14-19.
407  Newburn v. RFB Petroleum, Inc., 775 P.2d 93 (Co. Ct. App. 1989) (general exemptions not applicable
to proceedings to collect fines). See also Enderman v. Alexander, 187 P. 729, 68 Colo. 110 (Colo. 1920).
408  Compare, e.g., Iowa Code 909.6 (fines) (“The law relating to judgment liens, executions, and other
process available to creditors for the collection of debts shall be applicable to such judgments;
provided, that no law exempting the personal property of the defendant from any lien or legal process
shall be applicable to such judgments”), with Iowa Code 910.7A (other criminal justice debt) (lacking
404  See

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with respect to certain user fees, like indigent defense fees,409 although at least one state
explicitly requires application of exemptions to collection of incarceration costs.410 Even
when the exemptions do not explicitly apply to these types of user fees, constitutional
concerns suggest that user fees should be subject to exemption in the same manner
as claims arising from private debts.411 After all, even the narrowest reading of James v.
Strange would require that debtor’s exemptions apply to indigent defense fees.
The debtor’s supervision status—probation, parole, work release, etc.—may also affect
the available exemptions. For example, one state court held that workers compensation
paid to an individual on work release was not subject to protection under state law. The
Court concluded that a separate statute requiring inmates (including inmates on work
release) to pay 40 percent of their earnings towards costs of incarceration preempted the
general exemption for worker’s compensation.412 Under some statutes, the availability
of exemptions depends on the length of the defendant’s sentence.413
Alternative collection processes are yet another factor in the application of exemptions.
Like the federal government, states often have a panoply of collection mechanisms in
place that serve as an alternative to judicial garnishment, such as administrative garnishment and set-off of state benefits. As with collection of federal criminal justice debt,
a situation that at first glance appears to offer no exemptions may in fact have exemptions tied to the process used, rather than the type of income.414
6.7.2.	 Homestead
One of the most important and venerable state exemptions is that which protects the
home—the homestead exemption.415 In general, homestead exemptions may protect at
language denying exemptions).
Stat. 938.29; S.D. Codified Laws § 23A-40-15.
410  Conn. Gen. Stat. § 18-85a.
411  See § 2.3, supra.
412  Gober v. Alabama Dep’t of Corrections, 871 So. 2d 838 (Ala. Civ. App. 2003).
413  Neb. Rev. Stat. § 29-2407 (judgments for fines, costs, and forfeited recognizances; lien; exemptions;
duration) (no exemptions except when person sentenced for over 2 years). See State v. Bundy, 549
N.W.2d 122 (Neb. 1996).
414  Compare Iowa Code 421.17B (wage garnishment) (“The facility may receive assignment of up to one
hundred percent of the obligor’s disposable income, salary, or payment for any given period until the
full obligation to the facility is paid in full”), with Iowa Administrative Code r. 11-40.2 (“some claims
against public agencies on behalf of certain debtors are made from funds exempt from collection
and are thus unavailable for offset”). See also Cal. Gov’t Code § 12419.5 (West); Utah Code Ann. §§
76-3-201.1, 63A-3-502 (West); Va. Code Ann. § 19.2-349.
415  Commonwealth. v. Cassady, 169 S.W. 497 (Ky. 1914) (the homestead exemption “was designed to
protect the family. The exemption is not for the benefit of the debtor; it is for the benefit of the family.
It is to the interest of the state that children should be protected from want, and that families should
be kept together.”). See generally National Consumer Law Center, Collection Actions § 12.2.2 (3d ed.
409  Fla.

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least some of the value of a home, although most states have monetary caps on the
value protected. In the civil world, homestead exemptions are subject to exceptions,
which usually include enforcement of security interests and mortgages. The applicability of the homestead exemption to criminal justice debt is variable and does not always
correspond to the general application of state exemptions.416 Other states apply the
homestead exemption selectively to some criminal justice debts but not others.417
6.7.3.	 Public Benefits and Tax Refunds
Many benefits that people depend on, such as unemployment insurance and workers’
compensation, do not have a federal anti-alienation provision because they are distributed by the state (even if much of the funding derives from federal funding). State
exemption laws generally protect these benefits.418 In addition, some states have found
workers compensation to be derived from earnings, and thus protected under the federal CCPA even though distributed by the state.419 It may also be important to look at
the nature of the process used. Many states collect against state benefits by an administrative offset process, which may trigger exemptions found in the statute and regulation
underlying that process rather than in the general exemption law.420
In the context of private sector debt collection, about ten states have exemption statutes
that specifically protect the earned income tax credit or certain child tax credits, but
only a few have more broadly-applicable exemptions for tax refunds.421 The Supreme
Court has held that income tax refunds are not protected by the CCPA even when they
2014), updated at www.nclc.org/library.
Haw. Rev. Stat. § 651-122 (no personal property exempt from a debt owed to the state), with
Haw. Rev. Stat. § 651-92 (no corresponding limitation for homestead exemption), and Canada v.
State, 26 N.W.2d 509 (Neb. 1947) (giving effect to state law preserving exemptions if sentence is for
more than two years, and finding this statute not to conflict with statute providing generally that
fine operates as judgment on defendant’s property; convicted defendant is entitled to homestead
exemption). See also Commonwealth v. Lay, 75 Ky. 283 (Ky. 1876); Commonwealth v. Cassady, 169 S.W.
497 (Ky. 1914).
417  735 Ill. Comp. Stat. 5/12-903.5 (exemption applies to all criminal matters except forfeiture); La. Rev.
Stat. Ann. § 20:1(C)(8) (homestead exemption shall not apply to “any obligation arising from the
conviction of a felony or misdemeanor which has the possibility of imprisonment of at least six
months.”); Tenn. Code Ann. § 26-2-306 (homestead exemption not available for fines and costs for
certain voting, weapons, and election crimes); People v. McArdle, 430 N.E.2d 1309 (N.Y. 1981)
(homestead exemption does not apply to restitution because restitution is not a civil judgment under
New York law).
418  See generally National Consumer Law Center, Collection Actions § 12.5, Appx. G (3d ed. 2014), updated
at www.nclc.org/library.
419  McNabb v. State ex rel. Rhodes, 890 So. 2d 1038 (Ala. Civ. App. Ala. 2003).
420  See Smith-Porter v. Iowa Dep’t of Human Servs., 590 N.W.2d 541 (Iowa 1999).
421  See National Consumer Law Center, Collection Actions Appx. G (3d ed. 2014), updated at www.nclc
.org/library.
416  Compare

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are derived from earnings, because the connection to earnings is too attenuated.422
However, some courts have found that certain tax credits, like the Earned Income Tax
Credit423 and Additional Child Tax Credit424 are exempt under a state’s general public
assistance exemption.
6.7.4.	 Retirement Benefits
Those who depend on retirement plans such as state employee pensions that are not covered by ERISA cannot invoke ERISA’s broad anti-alienation provisions to protect this
income. But some states explicitly exempt these non-ERISA retirement payments.425 In
other states, courts may hold that these non-ERISA pension payments are earnings for
the purposes of CCPA protections.426

6.8.	 Concurrent Garnishments of Earnings
Many criminal justice debtors also owe child support, tax, and consumer debt. In a situation involving multiple wage garnishments, the operative legal question is whether
the competing garnishments have to proceed consecutively, according to some rule of
priority, or whether they can be active concurrently, even if they ultimately reduce the
debtor’s income to zero.
Generally, outside of the criminal justice debt context, courts have held that all creditors share the same amount of disposable income for possible garnishments.427 In other
words, garnishments cannot be stacked on top of each other. However, if an exemption
for wages is inapplicable to criminal justice debt in the first place, it is possible that a
court might allow a garnishment for a criminal justice debt to run concurrently with
a garnishment for another type of debt. Advocates may also face this problem when
there are multiple types of garnishments—for example, a judicial criminal justice debt
garnishment from a federal court, plus an administrative federal student loan garnishment, plus a child support garnishment issuing from a state court.

422  Kokoszka

v. Belford, 417 U.S. 642, 94 S. Ct. 2431, 41 L. Ed. 2d 374 (1974).
Flanery v. Mathison, 289 B.R. 624 (W.D. Ky. 2003); In re Longstreet, 246 B.R. 611 (Bankr. S.D.
Iowa. 2000); In re Fish, 224 B.R. 82 (Bankr. S.D. Ill. 1998).
424  See In re Hardy, 787 F.3d 1189 (8th Cir. 2015).
425  Board of Retirement v. Superior Court, 124 Cal. Rptr. 2d 850 (Cal. Ct. App. 2002); Anthis v. Copland,
270 P.3d 574 (Wash. 2012). But see State Treasurer v. Schuster, 572 N.W.2d 628 (Mich. 1998).
426  United States v. Lee, 659 F.3d 619 (7th Cir. 2011).
427  Long Island Trust Co. v. United States Postal Serv., 647 F.2d 336 (2d Cir. 1981); Voss Prods. v. Carlton,
147 F. Supp. 2d 892 (E.D. Tenn. 2001); Marshall v. Dist. Court for Forty-First-b Judicial Dist. of
Michigan, Mount Clemens Div., 444 F. Supp. 1110 (E.D. Mich. 1978); Koethe v. Johnson, 328 N.W.2d
293 (Iowa 1982).
423  See

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There does not appear to be a case that examines this exact issue in relation with criminal justice debt, but there are some cases that examine the interplay between the CCPA
and federal administrative garnishment for defaulted student loans which may be
analogous. Borrowers who owe defaulted, federally-connected student loan debt are
subject to an administrative garnishment procedure under the Higher Education Act.
Up to 15 percent (formerly 10 percent) of their wages are subject to this garnishment.
Courts have taken several approaches, however, as to how multiple garnishments under
administrative processes interact. For example, in Halperin v. Regional Adjustment Bureau,
a debtor contested three concurrent garnishments, at 10 percent each, for three different student loans. The Court found that, while the 10% limitation applied to each
lender and not in the aggregate, the CCPA ultimately limited the total garnishment to
25 percent of wages, even though the garnishment was brought under the HEA outside
of the CCPA.428

6.9.	 Manner of Raising Exemptions, Due Process and Equal Protection
Even when it is clear that exemptions apply to criminal justice debt, issues of due process and equal protection will often arise in regard to the manner in which these exemptions can be raised. In the world of private sector civil judgments, there are usually well
established processes with judicial oversight that allow for debtors to raise exemptions
and preserve assets and income. However, for a variety of reasons, due process problems
are likely in the involuntary collection of criminal justice debt. Criminal judges and
practitioners are often not conversant in the complex law involving civil post-judgment
collection procedures. Alternative and automatic collection processes are used that
remove these matters from the courts entirely.
Some states have even gone so far as to require that judicial garnishment notices contain mandatory language incorrectly informing debtors that no exemptions apply to
the collection of criminal justice debt, adding a new dimension to the constitutional
infirmity of the underlying blanket prohibition. For example, in Iowa, the statute covering judicial garnishment notices provides that no exemptions shall apply to fines.429
The provision ignores the fact that federal exemption law, such as the CCPA and the
anti-alienation provisions of ERISA, SSI, and Social Security, preempts any contrary
state law that purports to undercut those exemptions.
Other problems arise from automatic processes without the assessment of ability to
pay at the time of collection. Tax refund offsets, benefits offsets, and administrative
garnishments may not give the opportunity to raise ability to pay arguments at the

428  Halperin
429  Iowa

102

v. Reg’l Adjustment Bureau, Inc., 206 F.3d 1063 (11th Cir. 2000).
Code § 642.14A.

Confronting Criminal Justice Debt

collection stage, since they occur wholly outside of the courts. In addition to these due
process concerns, equal protection principles may require the application of exemptions to debts that arise due to indigence rather than culpability. For example, in the
case of indigent defense fees, any differences in the process for raising exemptions will
raise equal protection concerns.430 Automatic procedures such as tax refund offsets
may be void on both equal protection and due process grounds if they do not give the
debtor the opportunity to establish reasonable ability to pay at time of collection.431

6.10.	Checklist for Representation of Clients Seeking Relief from Criminal
Justice Debt and Collection Actions
Sections 4–6 in this guide discuss different ways individuals who owe criminal justice debt may be able to obtain relief from the debt or from some of the oppressive
collection practices that may be used to enforce the debt, including incarceration for
nonpayment and garnishment. Below is a brief checklist that may guide attorneys in
identifying potential options that may be available to provide relief for a client facing
criminal justice debt collection, along with cross references to the sections in this guide
that discuss each issue.
aa What




type of debt is at issue?
State, municipal, or federal?
Criminal, civil, or juvenile?
Fine, restitution, indigent defense attorney fee, bail bond, statutory surcharge,
or “user fee” (such as testing fees, prosecution fees, prison fees, supervision fees),
interest, collection costs, other? (see 1.1, 5.3.2)

aa Who is the debtor’s criminal defense attorney(s), if any, and would the debtor benefit

from representation or sharing of information by a criminal defense attorney and/or
consumer attorney? Does the debtor have the right to counsel?
 Do not assume that individuals with court debt will be appointed counsel. (see 4.2)
 Attorneys funded through the Legal Services Corporation may represent clients in
many types of criminal justice debt proceedings. (see 4.2)
aa Is the client on a payment plan he or she can afford, and what is the payment status?



Missed payments may trigger a range of draconian consequences. (see 4.1)
Possible avenues to relief include seeking modification of a payment plan or cancellation of the debt when an individual is unable to pay due to financial hardship.
(see 4.3)

430  See

§ 2.3, supra.
v. Tennin, 674 N.W.2d 403 (Minn. 2004). But see Brown v. Lobdell, 585 P.2d 4 (Or. Ct. App.
1978).

431  State

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aa Is

the client on probation or parole, and if so, would missing payments violate the
terms of supervision?
 Violation of probation or parole terms may result in revocation and incarceration.
(see 4.1)
 Individuals should not be incarcerated if their nonpayment is due to inability to
pay. (see 4.4)

aa Is the client otherwise at risk of incarceration for nonpayment or failure to appear at

hearings related to a debt?
Nonpayment or failure to appear at a debt-related hearing may be punishable by
incarceration. (see 4.1)
 Individuals should not be incarcerated if their nonpayment is due to inability to
pay. (see 4.4)
 Additional federal and state constitutional protections may also provide defenses
against incarceration. (see 4.5–4.6)


aa Is

the client facing negative consequences of the debt other than incarceration or
garnishment?
 Clients may face other harmful penalties for nonpayment—including drivers’
license suspension and limitations on expungement—in addition to traditional
collection actions. (see 4.1)
 Options for relief may include seeking remission of the debt (see 4.3), as well as
potential defenses related to constitutional defenses (see 4.5–4.6), and statutes of
limitation. (see 4.7)

aa Is


an old debt still collectible?
Statute of limitations or repose may protect against enforcement of old debts. (see
4.7)

aa Would




bankruptcy be a good option for the client?
Assess whether bankruptcy would discharge the types of debt the client is liable for
through either Chapter 7 (see 5.3.2) or Chapter 13 (see 5.4.2).
Assess whether bankruptcy is appropriate in light of the client’s complete financial
situation. (see 5.1)

aa Are

the client’s wages, benefits, or taxes being garnished or offset, or has there been
notice of such action?
 Exemptions may be available to protect against such involuntary collection practices, and vary depending on whether the debt is owed to the federal (see 6.5) vs.
state or municipal government (see 6.6–6.7)

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7.  AFFIRMATIVE PROTECTIONS, CLAIMS, AND COUNTERCLAIMS
RELATING TO METHODS AND TERMS OF COLLECTION
7.1.	Why Consider Affirmative Litigation
Often, the first step in representing a client facing court fines and fees issues will be to
resolve the debt or defend against detention or the collection of money or assets. These
are likely to be the client’s most immediate priorities. In addition to the “defensive”
tools described above, however, advocates may consider the applicability of “affirmative” tools. Suing the perpetrator of an injustice related to court fines and fees—whether
a state, county, court, or private actor—may allow clients to obtain redress for the harms
caused them and, just as importantly, halt ongoing illegal conduct. Furthermore, by
stepping into the role of revenue generator, actors in the criminal and civil justice systems engage in market participant conduct that our system regulates in part through
private, affirmative civil litigation. Policing the court fee and fine system through this
mechanism is thus critical in filling the current regulatory void.
Affirmative litigation may also allow victims of unjust court fines and fee practice to
access remedies that might not be available through defensive litigation. In some ways,
court fines and fees create a unique potential for affirmative litigation. On the one
hand, to some extent, criminal justice debtors are, like other debtors, protected from
unfair, discriminatory, deceptive, and abusive practices with respect to the methods and
terms of fee and fine imposition and collection. In this way, debtors who owe court fines
and fees are protected by broad and powerful consumer protection statutes that yield
important remedies, including injunctive relief and statutory damages. Unlike most
other consumer cases, however, criminal justice debtors also might have constitutional
claims that are not available in cases involving purely private actors. In these sense, the
government’s dual role in the court fees and fine context—both as a state actor involved
in the administrative of public judicial and law enforcement functions and as a quasiprivate actor seeking to raise and collect funds—subjects it to a unique array of potential
claims, although these claims involve significant additional procedural complications.
None of this is to say that affirmative litigation against a governmental entity is in any
way easy. Such litigation must take into account an array of procedural hurdles, and
must be very carefully planned and executed. While this guide should give advocates
the basic lay of the land in planning to meet the unique challenges inherent in this kind
of action, this material is not intended to be a substitute for case-specific consultation
with practitioners experienced with bringing cases in this area. Advocates should seek
as much outside support as possible before making their first forays into the world of
affirmative litigation against governmental entities.

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7.2.	 Bars to Affirmative Litigation
7.2.1.	 Sovereign and Qualified Immunity
While the involvement of government officials in the collection of court fines and fees
allows for constitutional claims, it also raises some complications. The question of sovereign immunity is often at issue. The Eleventh Amendment protects states from claims
for monetary damages in federal court,432 and even prevents Congress from subjecting
state governments to suit in state court without their consent.433 However, while these
claims are not always easy to bring, the following avenues for litigation are not foreclosed by the Eleventh Amendment:


Suits against state officials, rather than the states themselves, seeking injunctive and
declaratory relief.434



Suits against “municipalities and other local governments” that maintain “custom[s],
polic[ies], or practices that violate[] federal law,”435 provided that those entities are
not considered an “arm of the state” rather than a true municipal body.436



Suits against state officials in their individual capacities seeking damages to be paid
by the official himself, subject to certain immunity doctrines.437 Most government
officials are subject to suit in their personal capacities subject to qualified immunity,
which protects conduct within the discretion of a public official unless that conduct
violates “clearly established” law.438

7.2.2.	 Judicial Immunity
7.2.2.1.	 Background Principles
In considering affirmative litigation against the actors who perpetuate unjust criminal
justice debt policies and practices, advocates should be mindful of the possibility that
some defendants might be protected by judicial immunity. Unlike qualified immunity,
judicial immunity is absolute. This means that a state or local official who is covered by
judicial immunity is completely immune from suit for damages, no matter how egregious the misconduct. Additionally, Section 1983 itself limits claims against judges for
injunctive relief arising out of actions taken in their judicial capacity. Together, these
432  Edelman

v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974).
U.S. Const. amend. XI. See also Alden v. Maine, 527 U.S. 706, 119 S. Ct. 2240, 144 L. Ed. 2d 636
(1999);.
434  Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908).
435  Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690, 98 S. Ct. 2018, 56 L. Ed. 2d 611
(1978).
436  McMillian v. Monroe County, 520 U.S. 781, 785, 117 S. Ct. 1734, 138 L. Ed. 2d 1 (1997).
437  See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 247–249, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974).
438  Reichle v. Howards, ___ U.S. ___, 132 S. Ct. 2088, 2093, 2088, 182 L. Ed. 2d 985 (2012).
433 

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two immunity doctrines can pose significant challenges to suing judges directly for
their role in court debt collection schemes.
The purpose of judicial immunity is to ensure uninhibited judicial decision-making,
without judges having to fear that incorrect decisions will subject them to litigation.
The Supreme Court has explained:
[T]he nature of the adjudicative function requires a judge frequently to disappoint some of
the most intense and ungovernable desires that people can have. . . . [T]his is the principal
characteristic that adjudication has in common with legislation and with criminal prosecution,
which are the two other areas in which absolute immunity has most generously been provided.
If judges were personally liable for erroneous decisions, the resulting avalanche of suits, most of
them frivolous but vexatious, would provide powerful incentives for judges to avoid rendering
decisions likely to provoke such suits.439
In deciding whether judicial immunity attaches to any particular act, courts are guided
by the purposes of the doctrine, and “the effect that exposure to particular forms of
liability would likely have on the appropriate exercise of those [judicial] functions.” 440
When considering this question, courts consider the following factors, none of which
is dispositive: (1) whether the precise act complained of is a normal judicial function;
(2) whether the acts occurred in the courtroom;441 (3) whether the controversy centered
around a case pending before the court, and (4) whether the acts arose directly out of
a visit to the judge in her official capacity.442 Immunity “is justified and defined by the
functions it protects and serves, not by the person to whom it attaches.”443
The guiding principle in deciding any judicial immunity question is determining
whether judicial discretion would be improperly chilled if the judicial actor were
exposed to liability for the alleged conduct. This does not mean, however, that the doctrine only applies where judges exercise discretion in deciding cases, ruling on motions,
or at sentencing. Courts have also concluded that judicial decisions to implement certain security requirements in a courtroom are covered by immunity because “it is the
judge’s responsibility to exercise control over the courtroom and take security precautions during a trial.”444 And they have concluded as well that courts are immune from
liability when they resolve fee requests submitted by court-appointed counsel.445 Like439  Forrester

v. White, 484 U.S. 219, 226–227, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988).
v. White, 484 U.S. 219, 224, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988).
441  A judge’s actions may be judicial in nature even though they occurred in the judge’s chambers rather
than in the courtroom. Ballard v. Wall, 413 F.3d 510, 515 (5th Cir. 2005).
442  Mireles v. Waco, 502 U.S. 9, 12, 112 S. Ct. 286, 116 L. Ed. 2d 9 (1991).
443  Forrester v. White, 484 U.S. 219, 227, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988).
444  Martinez v. Winner, 771 F.2d 424, 434 (10th Cir. 1985).
445  Bliven v. Hunt, 579 F.3d 204, 211 (2d Cir. 2009).
440  Forrester

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wise, judicial immunity sometimes attaches to actors who do not themselves exercise
judicial discretion. When an official performs a function in the course of a particular
judicial proceeding, and performs that function at the instance of the court, the official
will generally be absolutely immune from damages suits.446
In distilling the doctrine, the Second Circuit has explained that “[t]he principal hallmark of the judicial function is a decision in relation to a particular case.”447 For example, in Morrison v. Lipscomb, the Sixth Circuit decided that a judge was not entitled to
judicial immunity for his decision to issue a temporary ban on “writs of restitution.”
Even though “no one but a judge could issue such an order,”448 the court’s order was
administrative, and not judicial, because it “was a general order, not connected to any
particular litigation,” and it could not be appealed.449
Furthermore, because judicial immunity is designed to protect judges against litigation
that revisits the rationale for specific decisions made in a judicial function, as a general
matter, it does not foreclose the pursue of prospective relief. In Pulliam v. Allen,450 a
magistrate who jailed indigents for non-jailable misdemeanors when they could not
make bail was held to be subject to prospective injunctive and declaratory relief, as well
as recovery of attorney fees and costs. In 1996, however, Congress legislatively restored
complete judicial immunity in regard to prospective injunctive relief under section
1983 and eliminated the right to attorney’s fees for injunctive relief against judicial
officers.451 So, in a section 1983 context, suits may still be maintained against judges in
their individual capacity for declaratory relief, and outside of the section 1983 context,
for example under the Equal Credit Opportunity Act (ECOA), injunctions and attorney’s fees may still be available against judicial actors.
7.2.2.2.	 Specific Considerations for Criminal Justice Debt Litigation
To avoid running into judicial immunity problems in criminal justice debt litigation,
advocates seeking to bring affirmative litigation should focus on identifying court practices that are the result of policies or widespread custom, and therefore are not simply
the result of individual judges in individual cases. Suits based on these policies and

446  Dorman

v. Higgins, 821 F.2d 133, 137 (2d Cir. 1987) (“The probation officer prepares the report at
the instance of the court. Although a secondary use of the report is to provide information to the
United States Parole Commission and the Bureau of Prisons for use in their release and confinement
decisions, the presentence report is a court document and may not be disclosed to others without the
permission of the court.”).
447  Bliven v. Hunt, 579 F.3d 204, 211 (2d Cir. 2009).
448  Morrison v. Lipscomb, 877 F.2d 463, 466 (6th Cir. 1989).
449  Id. at 466.
450  466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 (1984).
451  42 U.S.C. § 1988(b).

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practices are unlikely to chill judicial actors from exercising their discretion in particular cases. However, in framing the policy at issue as administrative versus judicial, advocates should also be wary of running into “legislative immunity” bars. When courts
promulgate official rules, and particularly where they do so pursuant to delegated legislative authority, they are likely immune from suit.452 On the other end of the spectrum, it is probably not sufficient to allege merely that the judges engaged in an illegal
unspoken pattern of misconduct related to criminal justice debt, such as imposing jail
sentences on indigent people who owed fines and fees.453 As opposed to a pattern of misconduct, which may appear too closely related to decision-making in individual cases,
advocates should attempt to identify policies that apply across cases.
Second, advocates should consider bringing suit against non-judicial actors, such as
municipalities, official capacity suits involving other state agencies, judicial administrative bodies, and private contractors. Although judicial immunity often stretches to
cover court officers who are not judges, including probation officers and court clerks,
it does not cover non-judicial entities who set policies for courts. Although sovereign
immunity may shield states from liability, municipalities that run courts might (in
some cases) be protected by neither judicial nor sovereign immunity.454 Furthermore,
although courts themselves may be shielded from liability, in many cases, they will
rely on non-judicial actors to effectuate their judgments—for example, departments of
motor vehicles to suspend drivers’ licenses.455
Lastly, advocates should always consider declaratory, and in certain cases, particularly
outside of the section 1983 context, injunctive relief. 456
7.2.3.	 Abstention
7.2.3.1.	 Introduction
One of the many obstacles to bringing affirmative litigation to challenge criminal justice debt practices in federal court is “abstention,” where federal courts abstain from
exercising jurisdiction over a matter involving state law or adjudications. What follows
is a brief list of abstention and related doctrines likely to confront advocates pursuing
452  Supreme

Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S. Ct. 1967, 64 L. Ed. 2d 641

(1980).
v. City of New Orleans, 2016 WL 1756537, at *8 (E.D. La. May 3, 2016).
454  Rodriguez v. Providence Cmty. Corr., Inc., 2016 WL 3351944, at *4 (M.D. Tenn. June 9, 2016).
455 Class Action Complaint, Stinnie v. Holcomb (W.D. Va. July 6, 2016), available at https://www
.justice4all.org/wp-content/uploads/2016/07/Complaint-Drivers-License-Suspension-for-CourtDebt.pdf (describing how the DMV receives and processes instructions from courts to suspend
drivers licenses for failure to pay criminal justice debt).
456  Ward v. City of Norwalk, 640 Fed. Appx. 462, 468 (6th Cir. 2016); Cain v. City of New Orleans, 2016
WL 1756537, at *5 (E.D. La. May 3, 2016).
453  Cain

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affirmative claims on behalf of criminal justice debtors. These doctrines have historically been used to bar litigation challenging the imposition and collection of court fine
and fees, although more recent litigation has been able to surmount these challenges.
7.2.3.2.	 Younger Abstention
In some cases, Younger abstention prevents federal courts from intervening in ongoing state court proceedings.457 Younger abstention applies only to (1) “ongoing state
criminal prosecutions,” (2) certain “civil enforcement proceedings” that are “akin to
criminal prosecution in important respects,” and (3) “pending civil proceedings involving certain orders . . . uniquely in furtherance of the state courts’ ability to perform
their judicial functions.”458 Younger abstention clearly applies to ongoing state criminal
prosecutions.459
Younger abstention only prohibits interference with ongoing proceedings.460 Criminal
prosecutions cease to be “ongoing” once the defendant has exhausted his opportunities to appeal.461 Also, Younger will generally not apply to illegal treatment of criminal
defendants before any proceeding: “[W]hen it comes to the adequacy of the state court
proceedings as an opportunity to address constitutional harms, the opportunity must
be available before the harm is inflicted.”462 Finally, Younger abstention does not bar an
attack on a matter collateral to a criminal prosecution.463

457  Younger
458  Sprint

v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971).
Communications, Inc. v. Jacobs, ___ U.S. ___, 134 S. Ct. 584, 591, 187 L. Ed. 2d 505 (2013).

459  Id.
460  Wooley

v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977).

461  See generally Steffel v. Thompson, 415 U.S. 452, 462, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974) (“When no

state criminal proceeding is pending at the time the federal complaint is filed, federal intervention
does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor
can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state
court’s ability to enforce constitutional principles.”); New Orleans Pub. Serv., Inc. v. Council of New
Orleans, 491 U.S. 350, 369, 109 S. Ct. 2506, 105 L. Ed. 2d 298 (1989) (“[T]he proceeding is not
complete until judicial review is concluded....For Younger purposes, the State’s trial-and-appeals
process is treated as a unitary system. . . .”); Powers v. Hamilton Cnty. Pub. Def. Comm’n, 501 F.3d
592, 605–606 (6th Cir. 2007) (finding Younger inapplicable after state court revoked plaintiff’s
probation months before he filed suit because the “proceedings in state court have long since
concluded”); Abusaid v. Hillsborough Cty. Bd. of Cnty. Comm’rs, 405 F.3d 1298, 1316 n.9 (11th Cir.
2005) (finding Younger abstention “clearly erroneous” when plaintiff “has already been tried and
convicted . . . and none of the parties suggests that any charges remain pending against him”);
Trombley v. Cnty. of Cascade, Mont., 879 F.2d 866 (9th Cir.1989) (finding no ongoing proceeding
when plaintiff “has pleaded guilty and is currently out on parole”); Almodovar v. Reiner, 832 F.2d
1138, 1141 (9th Cir. 1987) (“Probation is not a pending criminal action for Younger purposes.”).
462  Rodriguez v. Providence Cmty. Corrections, Inc., 155 F. Supp. 3d 758 (M.D. Tenn. 2015) (citing
Gerstein v. Pugh, 420 U.S. 103 (1975)).
463  Parker v. Turner, 626 F.2d 1, 8 (6th Cir.1980).

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Younger has been an obstacle in the past in regard to raising federal challenges involving
incarceration for nonpayment of criminal justice debt. However, in a string of recent
decisions, courts have rejected the application of Younger to bar challenges to post-conviction collection practices.464 These courts have largely focused on the collateral nature
of the action, and the lack of an ongoing state prosecution. This suggests that, despite
the hurdle of Younger, well-crafted affirmative claims raised under consumer protection
statutes may, as collateral actions, have a similar chance of success.
7.2.3.3.	 Heck v. Humphrey
A 1994 Supreme Court decision, Heck v. Humphrey, bars relief for allegedly unconstitutional convictions or imprisonment, or for other harm caused by state court actions
whose unlawfulness would render a conviction or sentence invalid, unless the plaintiff
proves that the conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal, or called into question by a federal
court’s issuance of a writ of habeas corpus.465 However, Heck does not apply to collateral
actions that do not attack the validity of the underlying conviction or sentence.466
In a criminal justice debt context, courts have refused to apply Heck to bar challenges
to post-conviction collection practices that do not directly attack the validity of the
underlying conviction or sentence.467
7.2.3.4.	 Rooker-Feldman
The Rooker-Feldman doctrine, which is a matter of jurisdiction rather than abstention,
bars federal district courts from modifying or reversing state court judgments.468 A federal court lacks jurisdiction only when the losing party in a state court action seeks
“what in substance would be appellate review of the state judgment[,]”469 or when the
plaintiff ’s injury was caused by the state court’s ruling and the plaintiff must seeks
relief that would undo that judgment.470 Rooker-Feldman does not prohibit a federal

464  Cain

v. City of New Orleans, 2016 WL 1598606 (E.D. La. Apr. 21, 2016); Buffin v. City & Cnty. of San
Francisco, 2016 WL 374230 (N.D. Cal. Feb. 1, 2016); Rodriguez v. Providence Cmty. Corrections, 155
F. Supp. 3d 758 (M.D. Tenn. 2015); Ray v. Judicial Corrections Servs., 2013 WL 5428360 (N.D. Ala.
Sept. 26, 2013).
465  Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383, (1994).
466  Powers v. Hamilton County Pub. Defender Comm’n, 501 F.3d 592 (6th Cir. 2007).
467  See Fant v. City of Ferguson, 107 F. Supp. 3d 1016 (E.D. Mo. 2015); Cain v. City of New Orleans, 2016
WL 1598606 (E.D. La. Apr. 21, 2016).
468  Rooker v. Fid. Trust Co., 263 U.S. 413, 44 S. Ct. 149, 68 L. Ed. 362 (1923); D.C. Court of Appeals v.
Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983).
469  Johnson v. De Grandy, 512 U.S. 997, 1005–1006, 114 S. Ct. 2647, 129 L. Ed. 2d 775 (1994)
470  Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293 n.2, 125 S. Ct. 1517, 161 L. Ed. 2d
454 (2005).

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plaintiff from “present[ing] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party.”471
In a criminal justice debt context, at least one recent decision has rejected the application of Rooker-Feldman to a challenge that focused on post-conviction collection practices rather than the validity of the underlying conviction.472
7.2.4.	 Arbitration
An additional potential impediment to bringing affirmative litigation based on criminal justice debt issues is the existence of arbitration agreements within contracts
purportedly entered into by the criminal justice debtor with the entity imposing or
collecting the debt. Arbitration agreements are familiar to many consumer and worker
advocates,473 but they are still a relative rarity in the criminal justice debt world. Nonetheless, perhaps in response to the flurry of recent litigation surrounding criminal justice debt issues, the typical defendants in these cases have started to add arbitration
agreements to their form contracts.474 Particularly because creditors and collectors of
criminal justice debt are not covered by recent federal regulatory reforms that limit the
enforceability of arbitration agreements and class waivers—including the CFPB’s recent
proposal to prohibit providers of consumer financial services and products from inserting class waivers into their contracts with consumers475—criminal justice debtors are
likely to see the issue arise in an increasing number of cases going forward.
First, a note about what arbitration (sometimes called “forced arbitration”) is: “Forced
arbitration” clauses are fine-print terms included in contracts of adhesion that, in the
criminal justice debt context, require the criminal justice debtor to give up her constitutional right to assert claims against the merchant or employer in court as a condition
of receiving the services of the creditor or collector. Instead the arbitration agreement
requires the criminal justice debtor to bring her claims in a private forum designated in
the arbitration agreement. In the vast majority of cases, the arbitration agreement will
also force the criminal justice debtor to bring her claims individually, i.e. without access
to the class action procedures that are often critical in affirmative litigation.476
471  Exxon

Mobil v. Saudi Basic Industries Corp., 544 U.S. 280, 293, 125 S. Ct. 1517, 161 L. Ed. 2d 454
(2005).
472  Cain v. City of New Orleans, 2016 WL 1598606 (E.D. La. Apr. 21, 2016); Fant v. City of Ferguson, 107
F. Supp. 3d 1016 (E.D. Mo. 2015)
473  National Consumer Law Center, Consumer Arbitration Agreements (7th ed. 2015), updated at www
.nclc.org/library.
474  See, e.g., Luse v. Sentinel Offender Servs, L.L.C., 2:16-mi-00030-UNA (N.D. Ga.) (private probation
company); Breazeale v. Victims Servs., Inc., 14-cv-05266 (N.D. Cal.) (check diversion company).
475  Bur. of Consumer Financial Protection, Proposed Rules, Arbitration Agreements, 81 Fed. Reg. 32,830
(May 24, 2016).
476  National Consumer Law Center, Consumer Arbitration Agreements Ch. 1 (7th ed. 2015), updated at

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In general, businesses are allowed to write their contracts with consumers, workers, and
others this way because of the Supreme Court’s interpretations of the Federal Arbitration Act (FAA).477 A series of recent Supreme Court decisions has expanded the Act’s
reach to cover almost all employment and consumer contracts, and has allowed drafters
to include so-called “class waivers” in their arbitration agreements to force individuals
to give up their right to participate in class actions.478
In resisting the enforcement of arbitration agreements (and class waivers), criminal justice debtors should first look to the conventional bases for avoiding arbitration. First,
arbitration is a creature of contract. And before a court can compel arbitration of any
dispute it has to be assured that the parties have actually entered into an arbitration
agreement.479 Just because a consumer has not read or understood an arbitration agreement is not generally sufficient to establish that she has not entered into an agreement
to arbitrate. But the coercive nature of many criminal justice debt cases likely undermines contract formation. For example, the criminal justice debtor unlikely entered
into an arbitration agreement voluntarily if her entire relationship with the other party
was based on the threat of criminal prosecution or even incarceration.
Second, criminal justice debtors should look for features of the arbitration agreement
that might render it substantively unconscionable or unenforceable as a matter of federal law because it conflicts with the debtor’s ability to vindicate her federal rights.480
These include arbitration agreements that force the criminal justice debtor to waive her
right to bring certain substantive claims or recover certain remedies otherwise available
under the law, or terms that require her to pay excessive costs and fees.
Finally, if neither of these conventional arguments bears fruit, criminal justice debtors
should consider constitutional arguments that may have traction in the criminal justice
debt context. The constitutionality of private arbitration agreements has sometimes
been called into doubt, but the Supreme Court on numerous occasions has upheld the
www.nclc.org/library.
U.S.C. §§ 1–16.
478  Am. Express Co. v. Italian Colors Rest., ___ U.S. ___, 133 S. Ct. 2304, 186 L. Ed. 2d 417 (2013); AT&T
Mobility L.L.C v. Concepcion, 563 U.S. 333, 131 S. Ct. 1740, 179 L. Ed. 2d 742 (2011).
479  See, e.g., Sgouros v. TransUnion Corp., 817 F.3d 1029, 1036 (7th Cir. 2016) (“That text distracted the
purchaser from the Service Agreement by informing him that clicking served a particular purpose
unrelated to the Agreement.”); Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 (9th Cir. 2014)
(“[W]here a website makes its terms of use available via a conspicuous hyperlink on every page of the
website but otherwise provides no notice to users nor prompts them to take any affirmative action to
demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on—
without more—is insufficient to give rise to constructive notice”); Schnabel v. Trilegiant Corp., 697
F.3d 110 (2d Cir. 2012).
480  National Consumer Law Center, Consumer Arbitration Agreements Chs. 5, 6 (7th ed. 2015), updated
at www.nclc.org/library.
477  9

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legitimacy of arbitration agreements as a matter of federal law. The landscape is arguably different, however, in cases where the entity imposing the arbitration requirement
is a state actor (e.g., a for-profit probation company enlisted by a municipality to collect
fines and fees for the municipal court). There should be no question that the Constitution would apply to state legislation providing that any person who receives its services
must use a special, private dispute resolution system for resolving disputes related to
those serves.481 And state actor defendants should not be able to avoid constitutional
scrutiny by embedding such a rule within a purported agreement in an attempt to gain
the FAA’s protection.
If the potential defendant is a state actor, a contractual arbitration requirement potentially deprives the debtor of the constitutional right to access a public, judicial forum
to bring her claims against public actors. That right is deeply embedded in our constitutional framework and potentially derives from a number of constitutional sources.482
The Supreme Court has concluded in other contexts, for example, that “it would be
destructive of rights . . . of petition [protected by the First Amendment] to hold that
groups with common interests may not . . . use the channels and procedures of state
and federal agencies and courts to advocate their causes and points of view.”483 In other
words, the Constitution recognizes an interest in accessing a public judicial forum to
air grievances against a public actor.484
An individual may, of course, contract with the government to surrender a constitutional right, including perhaps the right to access a public judicial forum, even if the
government would otherwise have to comply with procedural due process to deprive her
of that right unilaterally. But to ensure that state actors do not bypass procedural due
process by forcing individuals to waive protected interests, the Constitution requires
that the government obtain such waivers only through knowing, voluntary, and intelligent consent.485 In other words, although the Constitution may not require courts
481 

See Delaware Coal. for Open Gov’t, Inc. v. Strine, 733 F.3d 510 (3d Cir. 2013) (addressing
constitutionality of Delaware statute providing for confidential arbitration forum for business
parties).
482  See, e.g., Christopher v. Harbury, 536 U.S. 403, 415 n.12, 122 S. Ct. 2179, 153 L. Ed. 2d 413 (2002)
(collecting cases locating the right of access to courts within the Article IV Privileges and Immunities
Clause, the First Amendment Petition Clause, the Fifth Amendment Due Process Clause, and the
Fourteenth Amendment Equal Protection, and Due Process Clauses).
483  California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510–511, 92 S. Ct. 609, 30 L. Ed.
2d 642 (1972).
484  See Hudson v. Palmer, 468 U.S. 517, 523, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984) (“[L]ike others,
prisoners have the constitutional right to petition the Government for redress of their grievances,
which includes a reasonable right of access to the courts.”).
485  See Boykin v. Alabama, 395 U.S. 238, 242, 243 n.5, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969) (guilty plea
must be “intelligent and voluntary”; “[I]f a defendant’s guilty plea is not equally voluntary and

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to apply a “knowing and voluntary” standard to determine whether private parties
have entered into an arbitration agreement, when one of those parties is a state actor,
constitutional waiver principles apply.486 In most criminal justice debt cases, even if
the criminal justice debtor did assent to the arbitration agreement on normal contract
law principles, defendants will have a difficult time showing that her assent meets the
higher constitutional standard for a knowing, voluntary, and intelligent waiver.

7.3.	 Affirmative Constitutional Claims
7.3.1.	 Constitutional Principles
7.3.1.1.	 Types of Constitutional Claims
As discussed in Section 2, constitutional rights founded in the Fourteenth Amendment
Due Process and Equal Protection clauses underpin the most fundamental legal protections for indigent people with criminal justice debt. These rights may give rise to a
variety of claims challenging criminal justice debt practices. Additionally, criminal justice debt practices may implicate the Sixth Amendment right to counsel and the Eighth
Amendment Excessive Fines clause. These various constitutional protections may be
asserted in defending against incarceration for nonpayment of criminal justice debt,
as discussed in Sections 4.4 and 4.5, or raised in a habeas petition by a defendant being
held for nonpayment, as in Tate v. Short.487 They may also be raised in affirmative litigation, which may provide counsel more time to fully develop evidence and arguments in
support—as compared to often rushed or informal defensive proceedings on criminal
justice debt—and may allow opportunity to seek systemic as well as individual relief.
While there is potential for a wide variety of constitutional claims attacking criminal
justice debt practices, these claims generally fall into some combination of four different legal rubrics: due process-based claims, equal protection-based claims, structural
claims, and substantive claims. Very often claims fall into two or more of the categories.
The discussion below highlights some potential claims stemming from each category,
but is by no means exhaustive.

knowing, it has been obtained in violation of due process.”). See also Wellness Int’l Network, Ltd. v.
Sharif, ___ U.S. ___, 135 S. Ct. 1932, 1948, 191 L. Ed. 2d 911 (2015); Godinez v. Moran, 509 U.S. 389,
400, 113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993) (waiver of right to counsel must be intelligent and
voluntary).
486  See, e.g., Leonard v. Clark, 12 F.3d 885, 890 (9th Cir. 1993) (concluding that fire fighter union had
voluntarily, knowingly, and intelligently waived its First Amendment rights in collective bargaining
agreement with city).
487  401 U.S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1971).

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7.3.1.2.	 Process-based Claims
Most process-based claims turn on the failure to conduct an adequate ability to pay
determination. As explained above,488 pursuant to Turner v. Rogers, before imprisoning someone for failure to make a payment, a court must provide the defendant with
due process, including a meaningful assessment of ability to pay.489 Ensuring that the
assessment is meaningful may require appointment of counsel and other procedural
protections generally afforded to criminal defendants. In the alternative, procedural
safeguards that the Court recognized as appropriate in some civil contempt proceedings may be sufficient: “(1) notice to the defendant that his ‘ability to pay’ is a critical
issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit
relevant financial information; (3) an opportunity at the hearing for the defendant to
respond to statements and questions about his financial status, (e.g., those triggered by
his responses on the form); and (4) an express finding by the court that the defendant
has the ability to pay.”490
Similarly, depending on the procedural posture and other due process safeguards provided, indigent criminal justice debtors may have a Sixth or Fourteenth Amendment
right to appointed counsel to represent them in proceedings, including ability to pay
hearings, that result in incarceration.491 Thus a jurisdiction’s practices for provision of
indigent defense counsel for criminal justice debt-related proceedings at which incarceration may be ordered may be susceptible to challenge under the Sixth or Fourteenth
Amendment to the extent the practices prevent indigent defendants from exercising
their right to effective counsel in criminal proceedings or to due process in all proceedings that may result in deprivation of liberty.492
Counsel costs may also be problematic. As discussed in Confronting Criminal Justice Debt:
A Guide for Policy Reform at 19-20 (2016), requiring indigent defendants to pay unaffordable indigent defense counsel costs and other court-related costs that mount precipitously if a defendant goes to trial burdens the exercise of indigent defendants’ Sixth
Amendment rights to counsel and trial. While the Supreme Court, in Fuller v. Oregon,
488  See

§§ 2.2, 2.4, 4.4, supra.
U.S. 431, 131 S. Ct. 2507, 180 L. Ed. 2d 452 (2011).
490  Turner v. Rogers, 131 S. Ct. 2507, 2511 (2011) See generally § 2.4, supra.
491  Argersinger v. Hamlin, 407 U.S. 25, 27, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972); see § 4.2, supra, for a
discussion and references regarding the right to appointed counsel in the various types of criminal
justice debt proceedings that may result in incarceration.
492  See, e.g., Fant v. City of Ferguson, 107 F. Supp. 3d 1016, 1034 (E.D. Mo. 2015) (“Plaintiffs have stated
a plausible claim that the City’s failure to appoint counsel or obtain waivers thereof violated
Plaintiffs’ due process rights, particularly in light of their allegations that they were also not also not
afforded any hearing, inquiry into ability to pay, or alternative procedural safeguards in connection
with their incarceration.”).
489  564

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rejected this argument as applied to an Oregon’s statute imposing indigent defense
counsel costs on convicted defendants, it found that the challenged statute only
imposed costs on those defendants who were indigent at the time but subsequently
gained the ability to pay such costs.493 Laws or procedures that impose indigent defense
counsel costs on individuals even without subsequent ability to pay may be subject to
constitutional challenge.
7.3.1.3.	 Equal Protection Claims
Equal protection-based claims often turn on allegations that criminal justice debtors
are treated differently (and more harshly) than other civil judgment debtors under the
reasoning of James v. Strange.494 For example, a criminal justice debtor who has been
incarcerated, been subject to an arrest warrant, been denied garnishment or bankruptcy protections, or suffered a driver’s license suspension as a consequence of failing to pay criminal justice debt may have an equal protection claim on the basis that
other judgment debtors would not face these same consequences for failure to pay civil
judgments.495 However, as noted above in the discussion of James, advocates should be
aware that some courts have read James v. Strange narrowly in considering application to
criminal justice debts beyond indigent defense fees.496
Challenges to criminal justice debt schemes that irrationally discriminate on the basis
of wealth, or that discriminatorily infringe on a fundamental right or interest of the
poor, may also be viable under the Equal Protection Clause.497 For example, a district
court recently allowed a claim to move forward based on the differing probation treatment of individuals who were able to pay their fines and costs immediately, versus those
who were unable to pay. As the court explained in finding the allegations sufficient to
state a claim:
Plaintiffs are similarly situated to those offenders who escape [the private probation company’s]
clutches in all respects but one: wealth. They have pleaded or been found guilty of the same
offenses and sentenced to the same fines. Because Plaintiffs, who are indigent, cannot afford to
493  Fuller

v. Oregon, 417 U.S. 40, 47, 94 S. Ct. 2116, 40 L. Ed. 2d 642 (1974). See generally § 2.3, supra
(additional discussion of Fuller).
494  James v. Strange, 407 U.S. 128, 129, 92 S. Ct. 2027, 32 L. Ed. 2d 600 (1972). See generally § 2.3, supra.
495  See supra nn.72-73.
496  See id.. See also United States v. Cunningham, 866 F. Supp. 2d 1050, 1058 (S.D. Iowa 2012) (holding
that James did not bar discrimination against debtor who owed criminal restitution, in part based on
the court’s assertion that restitution is “penal in nature”).
497  See, e.g., Harris v. McRae, 448 U.S. 297, 323, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980) (noting that
“poverty, standing alone is not a suspect classification” and assessing equal protection claim in
abortion funding restriction case under rational basis standard); San Antonio Indep. Sch. Dist. v.
Rodriguez, 411 U.S. 1, 17–30, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973) (discussing standards applicable
to assessing claims of wealth discrimination under the Equal Protection Claus).

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pay their fines and costs immediately, they are subject to supervised probation and its attendant
terms, conditions, and consequences while those who can pay receive only unsupervised
probation. The rationality of this wealth-based distinction is called into question by the fact
that the County has alternative mechanisms for collecting outstanding fines and costs, namely,
court-administered payment plans.498
This type of challenge may similarly apply to systems that require supervision until
criminal justice debts are paid off in full.
7.3.1.4.	 Structural Claims
Structural claims attacking inherently prejudicial mechanisms for assessing and collecting court fines and fees may also be founded in the Due Process Clause. The Due
Process Clause prohibits judicial officers from having a personal, financial stake in the
outcome of a case.499 This protection may be compromised when a court or a private
probation company it contracts with benefits financially from judicial decisions in
which they are involved about imposition or collection of criminal justice debts. For
example, in a recent case brought by criminal justice debtors against, among others,
a private probation company and Rutherford County, Tennessee, the plaintiffs allege
that the private probation company serves a key role in administering probation while
simultaneously collecting its revenue from user fees that it was responsible for imposing on and extracting from those it was supervising.500 Plaintiffs alleged defendants
violated due process by making the plaintiffs’ criminal proceedings “contingent on the
demands, advice, recommendations, discretionary decisions, enforcement actions, testimony, and representations” of a private entity with a direct financial stake in each
plaintiff’s case.501
7.3.1.5.	 Substantive Claims Challenging Excessive Fines
Finally, the Eighth Amendment’s Excessive Fines Clause is, on its face, directly applicable to government-imposed fines. Although most doctrine interpreting the clause
has narrowly limited its application to punitive fines that are grossly disproportionate
to the offense, some scholars have posited that the historical record supports a broader
reading that would assess the full costs imposed and the excessive impact of those costs

498  Rodriguez

v. Providence Cmty. Corr., Inc., 2016 WL 3351944, at *13 (M.D. Tenn. June 9, 2016).
e.g., Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 870, 129 S. Ct. 2252, 173 L. Ed. 2d 1208
(2009).
500  Rodriguez v. Providence Cmty. Corr., Inc., 2016 WL 3351944, at *4 (M.D. Tenn. June 9, 2016).
501  Complaint, Rodriguez v. Providence Cmty. Corr., Inc., No. 3:15-CV-01048, at ¶ 283 (M.D. Tenn.)
(class action), available at http://equaljusticeunderlaw.org/wp/wp-content/uploads/2015/10/
complaint_file_stamped.pdf.
499  See,

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on indigent defendants.502 Some state courts have considered defendants’ financial
status part of the Eighth Amendment inquiry.503
7.3.2.	 Examples of Affirmative Constitutional Claims in Criminal Justice Debt Cases
Notwithstanding the foundational criminal justice debt cases of the 1970s, this area of
constitutional law is still very much developing. The growing use of onerous fines, fees,
and costs in recent years, along with increased attention to the harms they impose, has
contributed to a new wave of litigation.504

502  See

Tamar R. Birckhead, The New Peonage, 72 Wash. & Lee L. Rev. 1595, 1636–1637 (2015) (discussing
recent Excessive Fines clause literature and its application to criminal justice fines and fees). See also
Beth A. Colgan, Reviving the Excessive Fines Clause, 102 Cal. L. Rev. 277 (2014) (analyzing the historical
record and arguing that the Excessive Fines Clause of the Eighth Amendment should be interpreted
to provide greater individual protections); Lauren-Brooke Eisen, Paying for Your Time: How Charging
Inmates Fees Behind Bars May Violate the Excessive Fines Clause, 15 Loy. J. Pub. Int. L. 319 (2014) (arguing
that user fees charged to prison inmates may violate the Excessive Fines Clause of the Eighth
Amendment, and recommending litigation strategies); Nicholas M. McLean, Livelihood, Ability to Pay,
and the Original Meaning of the Excessive Fines Clause, 40 Hastings Const. L.Q. 833, 893–894 (2013)
(arguing that a narrow interpretation of the Excessive Fines clause is not compelled by Supreme
Court jurisprudence, and that historical tradition supports consideration of defendant’s ability to
pay).
503  See, e.g., State v. Wise, 795 P.2d 217 (Ariz. 1990) (ability to pay is one factor in the analysis of whether
a fine is excessive, but is not dispositive); People v. Malone, 923 P.2d 163 (Colo. App. 1995) (under
Eighth Amendment, in determining appropriate level of fine, court must consider particular
financial circumstances of defendant). See also United States v. Bajakajian, 524 U.S. 321, 118 S. Ct.
2028, 141 L. Ed. 2d 314 (1998) (question of whether trial court should consider defendant’s financial
status unresolved).
504  This includes recent cases challenging constitutionality of criminal justice debt-related practices in
Alabama, Georgia, Louisiana, Mississippi, Missouri, Tennessee, Washington, and Virginia, some of
which have already settled with agreements for significant injunctive reforms. See Foster v. City of
Alexander, 3:15-cv-647-WKW (M.D. Ala. Sept. 8, 201); Settlement Agreement, Mitchell v. The City of
Montgomery, 14-cv-00186 (M.D. Ala. May 1, 2014), available at http://equaljusticeunderlaw.org/
wp/wp-content/uploads/2014/07/Final-Settlement-Agreement.pdf; Edwards v. Red Hills Cmty.
Probation, L.L.C., et al., No. 1:15-cv-67-LJA (M.D. Ga. Apr. 10, 2015); Settlement Agreement, Thompson
v. DeKalb County, 1:15-cv-00280 (N.D. Ga. Jan.29, 2015), available at https://www.aclu.org/files/
assets/thompson_v_dekalb_county_settlement_agreement_03182015.pdf; Cain v. City of New
Orleans, 2:15-cv-04479-SSV-JCW (E.D. La. Sept. 21, 2015); Kennedy v. City of Biloxi, 1:15-cv-348HSO-JCG (S.D. Miss. Oct. 21, 2015); Fant v. The City of Ferguson, 4:15-cv-00253 (E.D. Mo. Feb. 18,
2015); Rodriguez v. Providence Cmty. Corr., Inc., 2016 WL 3351944, at *4 (M.D. Tenn. June 9, 2016);
Fuentes v. Benton County (Wash. Super. Ct. Yakima Cnty. Oct. 6, 2015); Class Action Complaint,
Stinnie v. Holcomb (E.D. Va. July 6, 2016), available at https://www.justice4all.org/wp-content/
uploads/2016/07/Complaint-Drivers-License-Suspension-for-Court-Debt.pdf. See also Complaint,
United States v. Ferguson, 4:16-cv-00180 (E.D. Mo. Feb. 10, 2015) (complaint by United States
against City of Ferguson challenging, among other things, Ferguson’s practice of “prosecuting and
resolving municipal charges in a manner that violates the due process and equal protection clauses
of the Fourteenth Amendment”).

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As just one example of recent litigation that effectively pursued Fourteenth Amendment claims affirmatively to attain both individual and systemic injunctive relief, criminal justice debtors brought a class action against Montgomery, Alabama for operating
what amounted to a debtors’ prison. Count I of the complaint alleged that the City
had violated the Fourteenth Amendment’s Due Process and Equal Protection clauses
by imprisoning them “without conducting any inquiry into their ability to pay and
without conducting any inquiry into alternatives to imprisonment as required by the
United States Constitution,” and by failing to provide required notice and opportunity
to plaintiffs to present evidence of inability to pay.505 The district court granted plaintiffs’ motion for preliminary injunction enjoining the city from collecting or attempting to collect the plaintiffs’ outstanding criminal justice debt, concluding that:
Plaintiffs have a substantial likelihood of success on the merits of its claim that Defendant City
of Montgomery (“the City”) violated their Fourteenth Amendment due process and equal
protection rights as outlined in Bearden v. Georgia, 461 U.S. 660 (1983), by imprisoning them,
and by threatening to imprison them, for failing to pay the balance on outstanding fines, fees,
and costs associated with traffic tickets they incurred without first conducting a meaningful
inquiry into the reasons for their failure to pay, including their potential status as indigents, and
without considering alternatives to imprisonment.506
The court further ordered the city to submit “a comprehensive plan listing the current
or proposed policies and procedures the City follows or intends to follow” in making
future determinations as to ability to pay, “which shall comply with all applicable
federal and state laws and the Alabama Rules of Criminal Procedure.”507 The parties
shortly thereafter entered a settlement agreement providing for injunctive relief, including requirements to follow—and document compliance with—a set of written procedures for assessing ability to pay, providing defense counsel for ability-to-pay hearings,
barring incarceration based on inability to pay, and providing indigent defendants
(defined as those below 125% of the federal poverty level without substantial liquid
505  Complaint,

Mitchell v. The City of Montgomery, 14-cv-00186 (M.D. Ala. May 23, 2014) (Dkt. 26)
(f irst am. class compl.), available at http://equaljusticeunderlaw.org/wp/wp-content/
uploads/2014/07/Complaint.pdf. The complaint also alleged that the City violated the Sixth and
Fourteenth Amendments through its practice of not providing indigent debtors with counsel at
proceedings in imprisonment was ordered; violated the Due Process clause by involving a financially
self-interested private probation company in decisions impacting debtors; violated the Equal
Protection Clause by imposing unduly harsh collection methods on indigent debtors who owe money
to the government compared to those who owe such debt to private creditors; violated the Equal
Protection Clause by placing people on probation based on their wealth status and thus inability to
pay a debt immediately; and violated the Thirteenth Amendment and federal statute by imprisoning
debtors for longer if they did not perform labor to work off the debt while imprisoned.
506  Mitchell v. The City of Montgomery, 14-cv-00186 (M.D. Ala. May 1, 2014) (Dkt. 18).
507  Id.

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assets) the options of either paying $25 per month with no additional payment plan
fees or performing community service.508
Advocates are also looking to the Fourteenth Amendment to challenge harmful practices beyond incarceration that unduly punish criminal justice debtors for being poor.
For example, in July 2016 the Legal Aid Justice Center filed a class action complaint
against the commissioner of the Virginia DMV on behalf of a putative class of Virginia
residents whose driver’s licenses are suspended due to unpaid criminal justice debt and
who were not able to pay the debt at the time of the suspension.509 The complaint
alleges that nearly one million people in Virginia currently have suspended licenses due
to nonpayment of criminal justice debt,510 and that Virginia’s practice of automatically
suspending licenses for nonpayment of court costs, without any inquiry into ability to
pay, notice and hearing, or alternatives to suspension, violates both the Due Process
Clause and the Equal Protection Clause. Plaintiffs emphasize that a license to drive
is often essential to pursuit of a livelihood, especially outside of major cities, and is
an important property interest that may not be taken without due process. Plaintiffs
also argue that there is no rational basis for suspending licenses of those unable to pay
because the practice cannot coerce those who cannot pay to pay and, once imposed, creates a barrier to obtaining or maintaining employment that makes it much less likely
that debtors will be able to repay. Finally, suspension of licenses for nonpayment of
non-punitive court costs is an unduly harsh and discriminatory mechanism for collecting against the indigent that is not available to private creditors.511

508  See Agreement to Settle Injunctive and Declaratory Relief Claims, Mitchell v. The City of Montgomery,

available at http://equaljusticeunderlaw.org/wp/wp-content/uploads/2014/07/Final-SettlementAgreement.pdf (judicial procedures included at 11–21). See also Judgment Granting Final Declaratory
and Injunctive Relief, Mitchell v. The City of Montgomery, 14-cv-00186 (M.D. Ala. Nov. 17, 2014)
(Dkt. 51).
The Montgomery settlement also provided for public defender and prosecutor training on Bearden
and on ability-to-pay rights and responsibilities, amnesty days on which debtors with outstanding
warrants for nonpayment may clear their warrants and set hearing dates, and a temporary ban on
city use of private probation companies or other companies profiting from criminal justice debt
payment plans.
Notably, the parties and Montgomery municipal court judges agreed to stipulate to joinder of the
judges, in their official capacities, for purposes of including them in the settlement and providing
the district court jurisdiction over them relative to the settlement agreement, though the judges did
not waive any claim to judicial immunity. See Dkt. 46 (motion), Dkt. 49 (order granting joinder).
509  See Class Action Complaint, Stinnie v. Holcomb (W.D. Va. July 6, 2016), available at https://www
.justice4all.org/wp-content/uploads/2016/07/Complaint-Drivers-License-Suspension-for-CourtDebt.pdf.
510  Id. ¶¶ 33, 377.
511  See id. ¶¶ 399–450.

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7.4.	 Claims Under Federal and State Debt Collection Practices Statutes
7.4.1.	 Introduction
Many of the most unfair and oppressive practices related to court fines and fees arise
in the collection of criminal justice debt. Although federal fair debt collection protections have never been found to apply to the collection of court debt, the question has
normally arisen in the context of restitution and punitive fines. Two features of today’s
court debt landscape, however, suggest that fair debt protections might apply to some
number of court debtors. First, like other creditors, municipalities and courts are
increasingly relying on private debt collectors to collect debts. 512 Second, courts and
governments increasingly impose user fees for services like indigent defense that court
debtors could theoretically have accessed in the private marketplace.
In other words, although federal debt collection protections likely do not apply in cases
where the government seeks to collect its own debt or where the underlying financial
obligation serves restitutionary or punitive ends, where private collectors seek to collect user fees on behalf of the government, advocates should consider whether their
clients may benefit from fair debt laws. These laws would provide court debtors with
important protections against harassing or deceptive communications from collectors,
including where (in what anecdotally seems like a fairly common practice in the court
debt world) debt collectors suggest to debtors that they will be imprisoned if they do
not pay their debts on time.
The outsourcing of government debt collection creates unique injustices, generally
unknown in the private debt collection world. For example, some states expressly allow
for additional fees and costs that can be collected by the debt collector on top of the
principal owed. In Florida, municipal debt collectors may add a 40 percent surcharge to
debts collected on behalf of local courts.513 This means, for example, that if a debtor in
Florida has a $1,000 debt to a local court, and that court hires a private debt collector
to collect the debt, then the debt collector can theoretically collect $1,400, with a $400
going to the collector. This not only adds to the costs of these fees and fines but incentivizes aggressive debt collection techniques.

512  Blake

Ellis & Melanie Hicken, The Secret World of Government Debt Collection, CNNMoney, Feb. 17,
2015, available at http://money.cnn.com/interactive/pf/debt-collector/government-agencies/.
513  Fla. Stat. § 28.246 (“The collection fee, including any reasonable attorney’s fee, paid to any attorney
or collection agent retained by the clerk may be added to the balance owed in an amount not to
exceed 40 percent of the amount owed at the time the account is referred to the attorney or agent for
collection.”).

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7.4.2.	 Applicability of Federal and State Debt Collection Protections to Criminal Justice Debt
7.4.2.1.	 Introduction
The Fair Debt Collection Practices Act (FDCPA)514—debtors’ usual federal protection
against unfair debt collection practices—has limited application in the government fine
and fee collection context. However, in certain spheres, particularly in the increasing
number of cases where courts and municipalities contract with outside, private debt
collectors to collect fines and fees, debt collection laws may provide a powerful tool
for debtors and advocates. When determining whether the FDCPA applies to a court
fees and fines case, advocates should consider (1) whether the collection activity was
undertaken by the government or a government official, and (2) whether the underlying
obligation is a “debt.”
7.4.2.2.	 Actors Covered by the FDCPA
The FDCPA does not apply to original creditors or to “any officer or employee of the
United States or any State to the extent that collecting or attempting to collect any debt
is in the performance of his official duties.”515 The Act does, however, apply to private,
outside debt collectors, even where expressly authorized to serve as debt collectors by law.
The Sixth Circuit adopted a variation of this analysis in Gillie v. Law Office of Eric A. Jones,
L.L.C.516 There, it deemed “special counsel” contracted by the State of Ohio to perform
debt collection activities to fall outside the exemption for public officers acting within
their official duties,” in that they were in the nature of private contractors rather than
public officers.517 On certiorari, the Supreme Court reversed the Sixth Circuit on different grounds, and did not reach the question whether private contract counsel are
“officers.”
7.4.2.3.	 Monetary Obligations Covered by the FDCPA
The most difficult obstacle for debtors to overcome in arguing for coverage under the
FDCPA in most fees and fines cases will likely be the requirement that the underlying
monetary obligation constitute a “debt.”518 In general, in the government debt context, courts have given the term “debt” a narrow reading, concluding that it covers only
consensual quid pro quo exchanges with governments for services, for example, sewer

514  15

U.S.C. §§ 1692–1692p.
U.S.C. § 1692a.
516  785 F.3d 1091 (6th Cir. 2015), rev’d ___U.S. ___, 136 S. Ct. 1594, 194 L. Ed. 2d 625 (2016).
517  785 F.3d at 1099.
518  15 U.S.C. § 1692a.
515  15

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and water services,519 but not “involuntary” debts arising from tickets, fines,520 or the
nonconsensual imposition of a monetary penalty.521 The conclusion is the same even
in cases where the debt obligation arises from a fine relating to a debtor’s failure to pay
a different obligation to the government.522 For example, courts have concluded that a
parking ticket fine for a failure to pay the fee for using a municipal parking lot is not a
debt under the FDCPA, even though the underlying decision to use the parking lot was
consensual.523
However, particularly in light of the expanded imposition of “user fees” in the criminal
and civil justice systems, advocates should consider FDCPA protections in appropriate
cases. As an initial matter, there is a reasonable basis for arguing that the Act should
apply even where there has not been an express quid pro quo between the creditor (in this
case the government agency) and the debtor. The primary function of the term “debt”
in the FDCPA, after all, was to exclude business transactions, not to insulate government debt collectors.524 To accomplish this end, the Act specifies that it applies only to
personal expenses, but it uses an exceptionally broad term to describe the form of the
relationship between the creditor and the consumer. The word “transaction”—used in
15 U.S.C. § 1692a—is widely used in other statutes and case law involving evidentiary
“dead man’s” statutes, criminal law, venue statutes, joinder of claims, and res judicata.
Given the possibilities for broad or narrow construction of the word “transaction,” and
hence the term “debt,” the proper question is what reading of the term best corresponds
with congressional purposes in enacting the FDCPA. In light of the remedial purposes
of the FDCPA and its focus on the nature as opposed to the form of the transaction
between the consumer and creditor, the choice of a narrow meaning for the term “debt”
is likely incorrect.525
Even if a debt need not arise from an express qui pro quo, however, it must still have
arisen from a consensual transaction. For this reason, in deciding whether to pursue
the FDCPA claims, advocates should consider whether their clients could have opted
519  See, e.g.,

Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379, 407 (3d Cir. 2000).
v. City of Ctr. Point, Ala., 988 F. Supp. 2d 1270, 1276 (N.D. Ala. 2013) (“[A] traffic ticket does
not constitute a ‘debt’ under the FDCPA.”).
521  Gulley v. Markoff & Krasny, 664 F.3d 1073, 1074 (7th Cir. 2011);
522  See, e.g., Yazo v. Law Enforcement Sys., Inc., 2008 WL 4852965, at *3 (C.D. Cal. Nov. 7, 2008) (holding
that use of a toll road without paying is not a consensual transaction).
523  Franklin v. Parking Revenue Recovery Servs., Inc., 2014 WL 6685472, at *4 (N.D. Ill. Nov. 25, 2014).
524  S. Rep. No. 382, 95th Cong., 1st Sess. 3, at 3, reprinted in 1977 U.S.C.C.A.N. 1695, 1696 (“[t]his bill
applies only to debts contracted by consumers for personal, family, or household purposes, it has no
application to the collection of commercial accounts”). See also 123 Cong. Rec. S4888 (daily ed. Mar.
25, 1977) (remarks of Sen. Garn).
525  See generally National Consumer Law Center, Fair Debt Collection § 4.4.2.3 (8th ed. 2014), updated at
www.nclc.org/library.
520  Stubbs

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to avoid the debt obligation and whether that debt obligation can be framed as analogous to a private marketplace transaction. The more an obligation is consensual and
the more similar it seems to a private marketplace transaction, the more likely it is that
the FDCPA will apply. This is true not only because of the FDCPA’s language and the
definition of debt, but also because of the dictate from James v. Strange that court debtors not receive differential treatment from similarly-situated private judgment debtors.
When the government acts as a market participant—as it frequently does—its creditors
are not insulated from the FDCPA.
As an example of the types of debts that might give rise to FDCPA claims, advocates
may have the most success with debts incurred as an alternative to incarceration. Probation fees, like those previously discussed, are arguably “voluntary” if they are incurred
as a consequence of a debtor’s decision to accept probation rather than incarceration.
Furthermore (and perhaps more common), criminal-defense related fees might be
“voluntary” if the debtor could have avoided those fees by representing herself pro se.
In other words, although many fees imposed within the court-fee world may appear
“involuntary,” they appear that way because few rational actors would choose not to
incur them. Particularly in light of the constitutional backdrop at stake in these cases,
many of these fees might be debts within the FDCPA.
Finally, it should be noted that even if something is not a “debt” within the FDCPA,
unfair practices relating to its collection may fall within state debt collection laws526 or
state unfair and deceptive acts and practices protections.527 Depending on the protections available in the jurisdiction at issue, advocates should vigorously argue that the
collection of court fines and fees by private collectors is subject to the FDCPA or state
debt collection laws.
7.4.3.	 Application of Fair Debt Collection Practices Act to Criminal Justice Debt
In cases where advocates are able to convince courts to apply the FDCPA or other federal or state debt collection protections to the collection of court fines and fees, debtors
are protected against a range of abusive and unfair practices set out in the statute. A few
of those bear explicit mention here.

526  See,

e.g., People ex rel. Daley v. Datacom Sys. Corp., 585 N.E.2d 51, 57 (Ill. 1991) (finding that state
debt collection law applied to municipal fines arising from, inter alia, parking violations). See National
Consumer Law Center, Fair Debt Collection § 10.2 (discussing state debt collection statutes), Appx.
D (state-by-state summaries of state debt collection statutes) (8th ed. 2014), updated at www.nclc
.org/library.
527  National Consumer Law Center, Fair Debt Collection § 10.3 (8th ed. 2014), updated at www.nclc.org/
library.

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First, a “debt collector may not use any false, deceptive, or misleading representation
or means in connection with the collection of any debt.”528 Among such false, misleading, and deceptive practices, a debt collector may not “represent[] or impl[y] that
nonpayment of any debt will result in the arrest or imprisonment of any person or the
seizure, garnishment, attachment, or sale of any property or wages of any person unless
such action is lawful and the debt collector or creditor intends to take such action.”529
Courts have found that collectors violate this provision when they threaten or suggest
the possibility of action—like the initiation of criminal proceedings—when such action
is not legally authorized.530
Second, a debt collector violates the statute by making a “[f]alse representation or implication that the debt collector is vouched for, bonded by, or affiliated with the United
States or any State, including the use of any badge, uniform, or facsimile thereof.”531
Some courts have found this provision to apply to businesses that perform “check
diversion” programs for state or local prosecutors and send debt collection notices on
district attorney letterhead,532 or private collection firms collecting criminal justice debt
who otherwise suggest that they themselves are the government or that the government
has sanctioned their specific debt collection practices.533
The validity of these decisions may have been called into question by the Supreme
Court’s decision in Sheriff v. Gillie.534 In Gillie, the Court unanimously rejected a claim
that the use of attorney general letterhead by statutorily appointed “special counsel”
(private collection contractors) was misleading in such a way as to create liability under
528  15

U.S.C. § 1692e(4). A debt collector violates this provision even when the debtor is not actually
deceived. Instead, courts apply an “objective” test based on the “least sophisticated” or
“unsophisticated” debtor standard. This standard serves the dual purpose of protecting all
consumers, including the inexperienced, the untrained and the credulous, from deceptive debt
collection practices, and protecting debt collectors against liability for bizarre or idiosyncratic
consumer interpretations of collection materials.” Taylor v. Perrin, Landry, deLaunay & Durand, 103
F.3d 1232, 1236 (5th Cir. 1997). See National Consumer Law Center, Fair Debt Collection § 5.5.8.2
(8th ed. 2014), updated at www.nclc.org/library.
529  15 U.S.C. § 1692e(4).
530  See, e.g., Lensch v. Armada Corp., 795 F. Supp. 2d 1180, 1187 (W.D. Wash. 2011) (collector violated
provision by suggesting possibility of criminal proceeding for bounced check when “[i]n fact, under
Washington’s bad check law, a person cannot be prosecuted for bouncing a check unless she had the
specific intent to defraud the recipient”)
531  15 U.S.C. § 1692e(1).
532  Gradisher v. Check Enforcement Unit, Inc., 210 F. Supp. 2d 907, 910 (W.D. Mich. 2002). For a general
overview of the issue, and a discussion of why “check diversion” companies are “debt collectors”
within the meaning of the FDCPA, see generally Del Campo v. Mealing, 2013 WL 4764975, at *10
(N.D. Cal. Sept. 5, 2013); National Consumer Law Center, Fair Debt Collection § 1.5.8 (8th ed. 2014),
updated at www.nclc.org/library.
533  Gammon v. GC Servs. Ltd. P’ship, 27 F.3d 1254, 1255 (7th Cir. 1994).
534  Sheriff v. Gillie, ___ U.S. ___, 136 S. Ct. 1594, 194 L. Ed. 2d 625 (2016).

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this provision of the FDCPA. In reaching this conclusion, the Court reasoned that the
letters did not imply a false association with a governmental entity, as the special counsel had in fact contracted with the State to carry out debt collection. The Court also
indicated concerns of federalism, expressing reluctance to intervene in a state’s collection of debt. Notably, the holding found relevant that the letter did not threaten prosecution, incarceration, or other criminal action. This leaves open the possibility that a
communication falsely asserting that a private entity could invoke remedies reserved
only to governmental actors is actionable under the FDCPA because it suggests a false
association with governmental actors.

7.5.	 Fair Credit Reporting Act
The Fair Credit Reporting Act is a federal statute that regulates consumer reporting
agencies (sometimes called “CRAs”), the entities that provide information to consumer
credit reporting agencies (sometimes called “furnishers”), and the users of consumer
credit reports. The FCRA applies to situations in which a person collects information
on a “consumer’s credit worthiness, credit standing, credit capacity, character, general
reputation, personal characteristics, or mode of living”535 and this information is used
or intended to be used by a third party for certain purposes. These purposes include
denying or increasing the charge for “credit or insurance to be used primarily for personal, family, or household purposes,”536 employment opportunities, government benefits, or certain other business transactions.537
To ensure accurate and fair consumer reporting, the FCRA imposes various duties on
furnishers, CRAs, and users of consumer reports. For example, furnishers must refrain
from reporting information that they know or have reasonable cause to believe is
inaccurate, and must investigate consumer disputes promptly. CRAs must follow reasonable procedures to ensure maximum possible accuracy and investigate consumer
disputes. Certain CRAs have a duty to provide annual free credit reports. And users
must use credit reports only for permissible purposes and must notify consumers if the
user takes an adverse action based on a consumer report. Consumers can file suit for
negligent violations of the FCRA and recover actual damages and attorney’s fees; if the
violation was willful, they can recover statutory or punitive damages.538
The Fair Credit Reporting Act does not include special provisions regarding court debt.
However, courts have frequently considered the Act’s application to governmental
535  15

U.S.C. § 1681a(d)(1).
U.S.C. § 1681a(d)(a)(A).
537  15 U.S.C. § 1681(b).
538  See generally National Consumer Law Center, Fair Credit Reporting (8th ed. 2013), updated at www
.nclc.org/library Fair Credit Reporting.
536  15

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agencies.539 Although the definition of “consumer report agency” in the Act does not
preclude its application to governmental agencies, the Federal Trade Commission540
and most courts addressing the issue have concluded that neither federal541 nor state
and local agencies are CRAs under the FCRA.542 When providing information to CRAs,
however, these entities clearly act as “furnishers” under the FCRA, and they can also be
“users” of consumer reports. They may therefore be susceptible to private litigation in
this capacity, subject of course to the immunity constraints outlined above.543
A recent settlement between the three nationwide consumer credit reporting agencies
(Equifax, Experian, and Transunion) and over thirty state attorneys general, and a nearly
identical agreement entered into by New York State, substantially alters the reporting
of court debts by consumer reporting agencies. Pursuant to the agreements, these credit
reporting agencies are now required to “prohibit” “Collection Furnishers”—including
“collection agencies and debt purchasers”—from “reporting debt that did not arise from
any contract or agreement to pay (including, but not limited to, certain fines, tickets,
and other assessments).”544
Questions remain about the actual effects of the settlement agreements. They would
not apply to original creditors of court debts (the governmental entities themselves),
because the agreements specifically only address the reporting of fines by debt collectors and debt buyers. There are also questions as to whether and how they apply to
court debts relating to an ostensible, yet effectively coerced, agreement to pay, like some
parole costs. However, the settlement agreement should be read broadly to cover the
539  See

15 U.S.C. § 1681a(b) (defining “person” for purposes of the FCRA to include “government or
governmental subdisvison or agency”).
540  Fed. Trade Comm’n, 40 Years of Experience with the Fair Credit Reporting Act: An FTC Staff Report
with Summary of Interpretations, §§ V(A), 603(f), items 5A, 5B. See also 55 Fed. Reg. 18,804–18,806
(May 4, 1990) (see supplementary information published with the prior, rescinded Staff
Commentary).
541  Ollestad v. Kelley, 573 F.2d 1109 (9th Cir. 1978); Ricci v. Key Bancshares of Maine, Inc., 768 F.2d 456
(1st Cir. 1985).
542  See generally National Consumer Law Center, Fair Credit Reporting §§ 2.5.7, 2.5.8 (8th ed. 2013),
updated at www.nclc.org/library.
543  See generally § §§ 7.2.1-7.2.2, supra. For a discussion of sovereign immunity specifically regarding the
FCRA, see National Consumer Law Center, Fair Credit Reporting § 11.2.2.2 (8th ed. 2013), updated
at www.nclc.org/library.
544  Assurance of Voluntary Compliance/Assurance of Voluntary Discontinuance, In the Matter of Equifax
Info. Serv. L.L.C., Experian Info. Sol., Inc., and TransUnion L.L.C., § IV(E)(1)(c) (May 20, 2015),
available at http://w w w.ohioattorneygeneral.gov/Files/Brief ing-Room/News-Releases/
Consumer-Protection/2015-05-20-CRAs-AVC.aspx. See also Executed Settlement Agreement, In the
Matter of Investigation by Eric T. Schneiderman Attorney General of the State of New York, of
Experian Information Solutions, Equifax Information Services, and TransUnion L.L.C. (Mar. 8,
2015), available at http://www.ag.ny.gov/pdfs/CRA%20Agreement%20Fully%20Executed%20
3.8.15.pdf.

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majority of court fines and fees, which—particularly because they often sprout from
municipalities’ aggressive policing strategies and revenue-through-fine-and-fee policies—do not have any bearing on a consumer’s creditworthiness.
Although the settlements affect CRA practices nationwide, the agreements are only
enforceable by the states that are parties to the agreement.545 Harmed consumers may
wish to dispute the reported information and also alert a participating state attorney
general’s office and request enforcement.
State law may provide additional protections against the furnishing or reporting of
court fine and fee information. For example, Texas state law prohibits a municipality or its contractors from providing information to credit reporting agencies about a
civil penalty imposed as a result of a traffic violation detected by a photographic signal
enforcement system.546

7.6.	 Equal Credit Opportunity Act
7.6.1.	 Application of the ECOA to Court Debt
Another tool that advocates might consider in addressing discriminatory court debt
practices is the Equal Credit Opportunity Act (ECOA).547 The ECOA provides, among
other things, that
[i]t shall be unlawful for any creditor to discriminate against any applicant, with respect to any
aspect of a credit transaction—(1) on the basis of race, color, religion, national origin, sex or
marital status, or age (provided the applicant has the capacity to contract); (2) because all or
part of the applicant’s income derives from any public assistance program.548
At first blush, court fines and fees may not appear to fall within the ECOA’s protections. Court debt, after all, does not look like the conventional credit transaction that
normally is at issue in ECOA cases. And no court has addressed the issue, so advocates
seeking to invoke ECOA face the difficult task of convincing a court to extend the statute to novel contexts. However, just as there may be room to expand the application of
the FDCPA because of the increased use of court fines and fees as revenue generators, the

545  Assurance of Voluntary Compliance/Assurance of Voluntary Discontinuance, In the Matter of Equifax

Info. Serv. L.L.C., Experian Info. Sol., Inc., and TransUnion L.L.C., § IX (May 20, 2015), available at
http://www.ohioattorneygeneral.gov/Files/Briefing-Room/News-Releases/Consumer-Protection/
2015-05-20-CRAs-AVC.aspx.
546  Tex. Transp. Code § 707.003(h) (West).
547  15 U.S.C. §§ 1691–1691f.
548  15 U.S.C. § 1691(a). See generally National Consumer Law Center, Credit Discrimination (6th ed.
2013), updated at www.nclc.org/library.

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expanding use of user fees and payment plans (which should constitute credit under the
ECOA) provide new opportunities to apply consumer protections in the court debt world.
Where it does apply, the ECOA may provide a powerful device for targeting systematically discriminatory court debt practices that relate to payment plans or deferrals of
payment established for the repayment of court debt. Most importantly, unlike the
other claims that court debtors might bring relating to discriminatory practices, the
ECOA allows for “disparate impact” claims. This means that court debtors asserting
ECOA claims might have an opportunity to challenge policies that result in significant
racial disparities, even if those policies do not, on their face, concern race. Furthermore,
because the ECOA covers every aspect of a credit transaction, it applies to both the
terms of credit and, importantly in the court debt context, collection procedures.
In arguing that the ECOA applies to a case involving court debt, advocates should
prepare to confront at least three threshold questions: (1) whether the defendant is a
creditor; (2) whether the plaintiff is an applicant; and (3) whether the allegedly discriminatory policy relates to an “aspect of a credit transaction.”
As for the first question, the definition of “creditor” expands broadly to include any
“government or governmental subdivision,”549 and should not pose problems for advocates seeking the protection of the ECOA. Indeed, courts have concluded that the ECOA
so clearly applies to governmental agencies acting as creditors that it amounts to an
explicit waiver of sovereign immunity with respect to claims brought under the ECOA
against the federal government.550
The second question is closer. The ECOA defines as an applicant “any person who
applies to a creditor directly for an extension, renewal, or continuation of credit, or
applies to a creditor indirectly by use of an existing credit plan for an amount exceeding
a previously established credit limit.”551 Advocates should not, however, read the Act as
applying only to formal, written applications for extensions of credit—which rarely arise
in the court debt context, where debtors might obtain payment plans or deferrals of
payment through informal and oral requests. An application for credit can take many
forms—oral and written—as long as it is “in accordance with procedures used by a creditor for the type of credit requested.”552
However, a more difficult question is posed by situations where the debtor has not made
any request for credit. On the one hand, it is difficult to see how someone could be an

549  15

U.S.C. § 1691a(e)–(f).
v. U.S. Dep’t of Agric. on Behalf of Farmers Home Admin., 55 F.3d 991, 994 (5th Cir. 1995).
551  15 U.S.C. § 1691a(b).
552  12 C.F.R. § 202.2(f).
550  Moore

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applicant for credit without ever taking the affirmative step of applying for credit.553
On the other hand, Regulation B, which implements the ECOA, defines “applicant” as
“any person who requests or who has received an extension of credit from a creditor, and
includes any person who is or may become contractually liable regarding an extension
of credit.”554 The definition promulgated under Regulation B has come under some
scrutiny, but consistent with the salutary purposes of the ECOA, courts have relied on
Regulation B in applying the ECOA to contexts where the plaintiff did not herself affirmatively apply for credit.555
Finally, advocates will have to establish that the discriminatory practices at issue relate
to a credit transaction. Certainly not every fee or fine is credit, and therefore not every
discriminatory court debt practice will trigger the ECOA. Rather, the ECOA defines
“credit” as including “the right granted by a creditor to a debtor to defer payment of
debt.”556 A Third Circuit decision construes identical language in the Truth in Lending Act as to a creditor that had purchased municipal water and sewer debts and then
entered into payment plans with the debtors.557 The court noted that, when the water
and sewer service was originally provided, the bills were payable upon receipt.558 At that
point, there was no credit transaction, since the debtors did not have the right to defer
payment of the debt or make installment payments. However, when it gave the debtors
the right to defer payment of the debts and pay them off in installments, the debt buyer
extended credit and was subject to the Truth in Lending Act. Applying this reasoning to
the ECOA, court debt would not be credit when it was imposed, but if the creditor or a
debt buyer subsequently gives the debtor a payment plan or otherwise gives the debtor
the right to defer payment, that would be an extension of credit.
7.6.2.	 Planning a Case
7.6.2.1.	 Identifying a Defendant and a Policy
Courts assessing lending discrimination claims have generally adopted the burden
shifting and evidentiary framework used in employment discrimination cases.559 Thus
553  Mercado

Garcia v. Ponce Fed. Bank, F.S.B., 779 F. Supp. 620, 628 (D. P.R. 1991), aff’d on other grounds,
979 F.2d 890 (1st Cir. 1992).
554  12 C.F.R. § 202.2 (emphasis added).
555  See, e.g., Estate of Davis v. Wells Fargo Bank, 633 F.3d 529, 538 (7th Cir. 2011); FirstMerit Bank, N.A.
v. Ferrari, 71 F. Supp. 3d 751, 758 (N.D. Ill. 2014).
556  15 U.S.C. § 1691a(d).
557  Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379, 409 (3d Cir. 2000)
558  Id. at 401 (“the government entities did not extend homeowners any right to defer payment of their
obligations”).
559  See, e.g., Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 406 (6th Cir. 1998) (adapting the burden
allocation framework and burden allocation system found in Title VII cases to claims under ECOA);
Moore v. United States Dep’t of Agric. ex rel. Farmers Home Admin., 55 F.3d 991, 995 (4th Cir. 1995)

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to make out a prima facie case of disparate impact, an ECOA plaintiff must: (1) identify
a specific, facially neutral policy or practice adopted by the defendant; (2) allege a disparate impact on a protected group; and (3) show a causal relationship between the challenged policy or practice and the alleged disparate impact.560 If the plaintiff makes out
a prima facie case, the burden shifts to the defendant to establish that the challenged
practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest.561
The first step in setting out a disparate impact claim under the ECOA is identifying
the actor and the policy that cause the discriminatory harm. “[I]dentifying the specific
practice that caused the alleged discriminatory effect will depend on the facts of a particular situation and therefore must be determined on a case-by-case basis.”562 However,
plaintiffs should take care to set out a discrete policy or practice as clearly as possible.
After all, “it is not enough to simply allege that there is a disparate impact on [consumers], or point to a generalized policy that leads to such an impact. Rather, the [plaintiff]
is responsible for isolating and identifying the specific . . . practices that are allegedly
responsible for any observed statistical disparities.”563
The main purpose of the ECOA “is to promote the availability of credit to all creditworthy applicants without regard” to protected characteristics.564 However, ECOA
claims are not limited to policies that bear on the mere availability of credit or even the
terms on which that credit is extended. The ECOA protects against discrimination in
all aspects of a “credit transaction,” and regulations define that term to entail “every
aspect of an applicant’s dealings with a creditor regarding an application for credit or
an existing extension of credit (including, but not limited to, information requirements;
investigation procedures; standards of creditworthiness; terms of credit; furnishing

(noting that McDonnell Douglas applies to ECOA claims in the absence of direct evidence of
discrimination); Chiang v. Schafer, 2008 WL 3925260, at *30 (D. V.I. Aug. 20, 2008) (“[I]t is
appropriate to import the analysis from Title VII cases in analyzing a claim of discrimination
brought under ECOA and . . . utilize Title VII employment discrimination case law as it may be
appropriate in the context of credit transaction discrimination.”), aff’d sub nom. Virgin Island Class
Plaintiffs v. Vilsack, 362 Fed. Appx. 252 (3d Cir. 2010). See also National Consumer Law Center, Credit
Discrimination § 4.3.2.2 (6th ed. 2013), updated at www.nclc.org/library (discussing legislative
history and official interpretations of ECOA identifying the relevant framework as based on
employment discrimination law).
560  See Smith v. City of Jackson, 544 U.S. 228, 241, 125 S. Ct. 1536, 161 L. Ed. 2d 410 (2005).
561  See § 7.6.2.3, infra.
562  Final Rule, Dep’t of Hous. & Urban Dev., Implementation of the Fair Housing Act’s Discriminatory
Effects Standard, 78 Fed. Reg. 11,460, 11,469 (Feb. 15, 2013). See also Garcia v. Johanns, 444 F.3d 625,
635 (D.C. Cir. 2006).
563  Smith v. City of Jackson, 544 U.S. 228, 241, 125 S. Ct. 1536, 161 L. Ed. 2d 410 (2005).
564  12 C.F.R. § 202.1(b).

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of credit information; revocation, alteration, or termination of credit; and collection
procedures).”565
7.6.2.2.	 Establishing Causation
In addition to alleging a discrete policy or practice, an ECOA plaintiff alleging a disparate impact claim must allege that this policy or practice causes a significantly disproportionate impact on a protected class. In many disparate impact cases, it will be difficult
to draw a clear and direct connection between the alleged practice and a discriminatory
outcome. At the pleading stage, however, a plaintiff need only plausibly and specifically
plead this causal connection.566 And at the proof stage, a disparate impact that is substantial enough to raise an inference of discrimination should support a prima facie case.567
In developing a theory of discrimination, the plaintiff must also remain mindful, however, that the relevant comparison for determining disparate outcomes is not between
members of the protected class and all other people potentially affected by the policy.
Rather, the comparison must be between similarly situated people. 568 For example,
consider a situation where a court has a policy of requiring some court debtors who are
delinquent on their payment plans to accelerate their payments or face harsher sanctions than those who make on-time payments. In stating an ECOA claim based on this
policy, an advocate will make out a more compelling case by comparing debtors who are
delinquent and showing that the consequences of delinquency have a disparate impact
on people of color relative to others who suffer from these same consequences. If the
advocate wants to compare a protected class relative to all other recipients of the credit,
it is better to frame the policy at a higher level of generality—e.g., the creditor’s policy for
determining when someone is delinquent.
Of course, a challenge in every disparate impact case will be the compilation of data
reflecting disparate outcomes and suggesting a causal link between the alleged policy
and those outcomes. In establishing disparate outcomes, advocates will rarely be able
to access “race coded” data—meaning data that identifies outputs of the criminal justice debt system by race. This means that that they will often have to use race proxies.
565  12

C.F.R. § 202.2(m).
Ellis v. City of Minneapolis, 2016 WL 1222227, at *3 (D. Minn. Mar. 28, 2016).
567  Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995, 108 S. Ct. 2777, 101 L. Ed. 2d 827 (1998) (“[S]
tatistical disparities must be sufficiently substantial that they raise such an inference of causation
see.”). See also Mt. Holly Gardens Citizens in Action, Inc. v. Twp. of Mount Holly, 658 F.3d 375 (3d Cir.
2011) (rejecting defendant’s argument that, because 100% of minorities and 100% of non-minorities
in a neighborhood slated for redevelopment would be treated the same way, there was no prima facie
evidence of disparate impact and instead instructing district court to consider statistics that 22.54%
of African-American and 32.31% of Hispanic households in township would be affected by demolition
compared to only 2.73% of white households).
568  See, e.g., Boykin v. Bank of Am. Corp., 162 Fed. Appx. 837, 840 (11th Cir. 2005).
566  See

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In performing its own disparate impact analyses, the CFPB has established race proxies based on consumers’ surnames and geography.569 Through public records requests,
made even before filing a case, advocates may be able to compile sufficient data to perform their own proxy analysis.
7.6.2.3.	 Shifting the Burden
Once the plaintiff sets out a prima facie case, the burden shifts back to the defendant
to establish that “that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent or defendant.”570
The analogous test in the employment discrimination context requires that employers demonstrate both business necessity and job-relatedness.571 In the ECOA context,
then, creditors should have to demonstrate both necessity and a relationship to the
creditor’s legitimate goals. Thus, depending on the purpose of the aspect of the credit
transaction at issue, only justifications related to the purpose of that part of the credit
transaction should be relevant. Collections policies that have a disparate impact are justifiable only if they are necessary and effective as collections policies. In the court fines
and fees arena, it is not enough for a defendant to argue that it has a right to suspend
debtors’ drivers’ licenses, even if that practice has a disparate impact on people of color
relative to other debtors, if suspending debtors’ drivers’ licenses is not actually an effective debt collection technique. In this way, the same concerns that drove the Court to
determine that certain fines and fees practices failed to pass even the very lenient “reasonable basis” test in Tate v. Short,572 Bearden v. Georgia,573 and James v. Strange,574 should
also support ECOA claims related to court fines and fees practices that not only have a
disparate impact but also are ineffective.
If, however, the creditor demonstrates a significant business justification, the plaintiff
can still prove discrimination if another practice meeting the creditor’s legitimate concerns would have less of a discriminatory impact.575 As in employment law, in credit
discrimination cases there is little guidance regarding the showing required to meet the
burden of proving that a less discriminatory alternative exists. However, assuming that
courts in credit discrimination cases will follow the employment standards, a plaintiff

569  CFPB,

Using Publicly Available Data to Proxy for Race and Ethnicity (Summer 2014), available at
http://files.consumerfinance.gov/f/201409_cfpb_report_proxy-methodology.pdf.
570  24 C.F.R. § 100.500(c)(2).
571  Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971).
572  401 U.S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1971).
573  461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983).
574  407 U.S. 128, 92 S. Ct. 2027, 32 L. Ed. 2d 600 (1972).
575  Official Interpretations of Reg. B, 12 C.F.R. pt. 1002, supp. I, § 1002.6(a)-2.

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will need to show that a less discriminatory alternative would be “equally effective” in
meeting the defendant’s legitimate business objective.576
Although it is difficult to predict how and when a defendant might be able to satisfy its
burden of establishing “legitimate, nondiscriminatory interests” in the court fines and
fees context, even if it can, the opportunity to establish a less discriminatory alternative
is a powerful tool for plaintiffs in this arena. When plaintiffs identify legitimate nondiscriminatory alternatives, they should argue that when ECOA defendants enter into
credit transactions, punitiveness is not a legitimate interest.577 In other words, although
the imposition of a fine or fee may, of course, turn on some punitive considerations, the
aspects of criminal justice debt that relate to the credit transaction qua credit transaction (e.g., interest rates, collection practices, etc.) should not hinge on punitive considerations—after all, once a creditor steps into its market participant role, it should be
treated like private judgment creditor. Any alternative that is as effective as the status
quo at fulfilling defendants’ legitimate interests in collecting debts should meet the
creditors’ legitimate concerns. Although no court has yet addressed this theory in the
ECOA context, and thus advocates should tread carefully when deciding when and how
to invoke it, it is a potentially powerful tool in cases where the court debt creditor acts
similarly to a private market creditor.
7.6.2.4.	 Potential Illustrations
The following are illustrations of the types of criminal justice debt policies or practices
that might give rise to claims under the ECOA along with a brief sketch of how an advocate might develop a theory to challenge these policies. These three policies represent
the types of policies that advocates might be able to attack, but as presented here, they
are neither complete nor comprehensive. Much more work would need to be done to
develop these cases, and there are many other types of cases that may be available. This
discussion is intended as a blueprint for advocates who are issue-spotting criminal justice debt problems confronting their own clients.
Policies that require criminal justice debtors to demonstrate that they are earning
wages before they can obtain favorable payment plans.  Anecdotally, many advocates
report that wage earners have an easier time accessing favorable payment plans and
avoiding harsh collection tactics than do those whose earnings are derived primarily
from public benefits. Some courts may even have policies that provide that debtors who
576  See Graoch Associates #33, Ltd. P’ship v. Louisville/Jefferson Cnty. Metro Human Relations Comm’n,

508 F.3d 366 (6th Cir. 2007) (FHA case).
Ian Ayres, Market Power and Inequality: A Competitive Conduct Standard for Assessing When Disparate
Impacts Are Unjustified, 95 Cal. L. Rev. 669, 706 (2007) (“Exacting supra-competitive revenues from a
class of consumers—not because they impose higher costs on the seller but merely because the seller
has the power to do so—is not consistent with business necessity.”).

577  Cf.

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are not earning a wage are not eligible for payment plans—even if they receive income
from public benefits. These types of policies may be the easiest to attack under the
ECOA. As explained above, public benefits recipients are a protected class under the
ECOA, and if they are denied access to credit because they are not wage earners, they
should have a fairly straightforward disparate treatment claim under the ECOA.578
Deprivation of public benefits that are disproportionately needed by a protected
class.  Advocates may also consider whether criminal justice debt collection techniques
disproportionately harm people of color because they deprive delinquent debtors of a
public benefit that is especially important to a protected class. Depending on the data,
drivers’ license suspension may be such a policy. To the extent protected groups live
disproportionately in the exurbs where they do not have access to decent public transportation, the suspension of drivers’ licenses as a debt collection technique may have a
disparate impact on people of color even as compared to others whose drivers’ licenses
are also suspended. This case is made even stronger by the fact that debtors deprived of
their drivers’ licenses are less likely to pay off their debts than debtors who have the ability to drive to work. For this reason, it will be difficult for defendants of ECOA claims
based on these practices to argue that the practice of depriving debtors of their drivers’
licenses is necessary to the legitimate business purpose of collecting court debt.
The absence of a clear policy for determining payment plans or a pattern or practice
of discrimination.  The trickiest but most important policy to attack through the ECOA
may be the discretion provided to many local officials to determine payment plans.
Anecdotally, it is this discretion—untethered from an accurate picture of the debtor’s
financial situation—that leads to disparate outcomes at the state or county level because
individual court officials may be swayed by implicit or explicit biases. Although it may
be difficult to certify a class based on a policy involving the delegation of discretion,579
delegation of discretion is still a policy under the ECOA.580 And a plaintiff who is able
to compile data to demonstrate disparate impacts might be able to make out an individual claim for injunctive relief.
578  Additionally, if they are treated less favorably because they receive Social Security disability benefits,

they may have a claim under the Americans with Disabilities Act. 42 U.S.C. § 12132.
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 355, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011) (“The
only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s ‘policy’ of
allowing discretion by local supervisors over employment matters. On its face, of course, that is just
the opposite of a uniform employment practice that would provide the commonality needed for a
class action; it is a policy against having uniform employment practices.”).
580  Miller v. Countrywide Bank, N.A., 571 F. Supp. 2d 251, 258 (D. Mass. 2008) (“Where the allocation
of subjective decisionmaking authority is at issue, the ‘practice’ amounts to the absence of a policy,
that allows racial bias to seep into the process. Allowing this ‘practice’ to escape scrutiny would
enable companies responsible for complying with anti-discrimination laws to ‘insulate’ themselves
by ‘refrain[ing] from making standardized criteria absolutely determinative.’”).
579  See

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7.7.	 Title VI
Title VI of the Civil Rights Act of 1964581 provides another tool for challenging racial
discrimination in the context of criminal justice debts. Title VI prohibits discrimination on
the basis of race, color, national origin, sex, and religion by recipients of financial assistance
from the federal government. As the U.S. Department of Justice (DOJ) has recently noted,
many state and local law enforcement agencies and courts receive federal funds, either
directly or indirectly, and thus are subject to Title VI and its implementing regulations.582
Like the ECOA, Title VI and its implementing regulations583 prohibit both intentional
discrimination and facially neutral practices that have a discriminatory impact.584 Also
like the ECOA, Title VI has been interpreted to follow employment discrimination law’s
disparate impact standards of proof.585 But Title VI departs from the ECOA in its scope
of coverage and right of action.
With regard to scope, Title VI only applies to agencies or programs that receive some
sort of federal assistance, directly or indirectly, and thus some courts or other actors
in the criminal justice debt system may not be subject to its reach. But for those actors
that are subject to Title VI, the scope of conduct regulated is significantly broader than
under the ECOA: whereas the ECOA only precludes discrimination in the context of a
credit relationship or payment plan, Title VI precludes any discrimination by an entity
receiving federal assistance. It could thus potentially be applied to challenge a variety
of law enforcement and criminal justice debt practices unrelated to payment plans,
including, for example, policing practices that result in disparate ticketing or charging
581  42

U.S.C. §§ 2000d to 2000d-7.
e.g., U.S. Dep’t of Justice, Addressing Police Misconduct Laws Enforced by the Department of
Justice, available at https://www.justice.gov/crt/addressing-police-misconduct-laws-enforceddepartment-justice (last visited June 24, 2016) (“Currently, most persons are served by a law
enforcement agency that receives DOJ funds.”). See also U.S. Department of Justice Guidance Letter
to State Court Administrators on Nondiscrimination Against Individuals with Limited English
Proficiency (Aug. 16, 2010) (explaining that all “court systems receiving federal financial assistance,
either directly or indirectly,” must comply with Title VI and its implementing regulations). The
Department of Justice’s Title VI Legal Manual (Jan. 11, 2001), available at https://www.justice.gov/
sites/default/files/crt/legacy/2011/06/23/vimanual.pdf, provides further detail on the application
of Title VI to state and local governments, including summaries of case law.
583  28 C.F.R. §§ 42.401–42.415.
584  See 28 C.F.R. § 42.104(b)(2) (explaining that no program receiving federal assistance from the
Department of Justice may “utilize criteria or methods of administration which have the effect of
subjecting individuals to discrimination because of their race, color, or national origin, or have the
effect of defeating or substantially impairing accomplishment of the objectives of the program as
respects individuals of a particular race, color, or national origin”).
585  See, e.g., Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1405 n.11, 1407 n.14 (11th Cir. 1993).
See also U.S. Dep’t of Justice, Title VI Legal Manual 2 (2001), available at https://www.justice.gov/
sites/default/files/crt/legacy/2011/06/23/vimanual.pdf.
582  See,

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of minorities;586 court fee or supervision cost assessment practices that result in disparate adverse impact on minority defendants or supervisees;587 or criminal justice debt
collection practices that impose disparate adverse impact on debtors who are of color.
Title VI, however, lacks a private right of action to enforce its disparate impact regulations.588 Individuals who wish to challenge criminal justice debt practices under a
Title VI disparate impact theory may instead file an administrative complaint with the
Civil Rights Division of the Department of Justice,589 which may then investigate and
seek voluntary compliance, and if necessary may pursue enforcement through judicial
action or administrative fund suspension.590 There is some indication that the Department of Justice Civil Rights Division may currently be interested in using Title VI to
address discriminatory criminal justice debt practices. In early 2016, the Department
of Justice included Title VI discrimination claims (raising both disparate impact and
disparate treatment theories) in its lawsuit against the City of Ferguson following its
investigation into allegations of discriminatory law enforcement practices and court
fine and fee practices.591 Shortly thereafter, the Department published a “Dear Colleague” guidance letter on state and local court fine and fee practices, and specifically
noted that “[i]n court systems receiving federal funds, these practices may also violate
Title VI of the Civil Rights Act of 1964,592 when they unnecessarily impose disparate
harm on the basis of race or national origin.”593

586  See, e.g.,

Rodriguez v. California Highway Patrol, 89 F. Supp. 2d 1131, 1139 (N.D. Cal. 2000) (holding
plaintiffs adequately plead disparate treatment and disparate impact claims under Title VI based on
allegations that law enforcement agency received federal assistance and engaged in racial
discrimination by stopping, detaining, interrogating and searching motorists on the basis of race,
and utilized drug interdiction tactics that had a discriminatory impact on motorists of color that
were largely unsuccessful and therefore not justified).
587  See, e.g., United States v. City of Ferguson, No 4:16-cv-00180 (E.D. Mo.) (complaint filed Feb. 10,
2016), available at https://www.justice.gov/crt/file/832451/download (alleging that Ferguson’s law
enforcement is racially discriminatory and that disparities occur at a number of inflection points,
and further noting that “Analysis of the municipal court’s fines and fees data suggests racial
disparities in the court’s fine assessment practices that consistently disfavor African Americans”).
588  The Supreme Court resolved a split among the federal circuits on this issue in Alexander v. Sandoval,
532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001).
589  Information about how to file a complaint, along with an optional complaint form, are available on
the DOJ Civil Rights Division webpage at https://www.justice.gov/crt/how-file-complaint.
590  See U.S. Dep’t of Justice, Title VI Legal Manual 82–83 (2001), available at https://www.justice.gov/
sites/default/files/crt/legacy/2011/06/23/vimanual.pdf.
591  Complaint, United States v. City of Ferguson, No 4:16-cv-00180 (E.D. Mo.) (Feb. 10, 2016), available
at https://www.justice.gov/crt/file/832451/download.
592  42 U.S.C. § 2000d.
593  Dep’t of Justice Civil Rights Div., Dear Colleague Letter Regarding Law Enforcement Fees and Fines
2 (Mar. 14, 2016), available at https://www.justice.gov/crt/file/832461/download.

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Finally, individuals do have a private right of action in the federal courts to enforce
Title VI’s prohibition against intentional discrimination.594 Individuals may seek both
injunctive relief and damages in court pursuant to Title VI, and states’ sovereign immunity is abrogated with respect to such claims.595

7.8.	 Checklist to Begin Consideration of Affirmative Claims Challenging
Criminal Justice Debt Practices
After addressing a client’s immediate needs, clients and their counsel may wish to consider the viability of potential affirmative claims. For convenience, a brief checklist
of general initial considerations relevant to the viability and types of claims that may
be available is included below, along with the relevant sections in which each topic is
addressed.
aa Who

would be the defendant, and are there barriers to obtaining relief from that
defendant?
 For government defendants—are there immunity problems? (see 7.2.1, 7.2.2). For
any statutory claims, does the relevant statute apply to government entities? (see
7.4-7.7)
 For private defendants—is the actor susceptible to constitutional claims? (see 7.3)

aa What








is the nature of the concern? More than one may apply.
Unfair process (e.g., absence of ability-to-pay determination) (see 7.3.1.2)
Imprisonment for nonpayment without an adequate determination that the defendant is able to pay (see 7.3, see also 2.2, 4.4)
Excessive fines (see 7.3.1.5)
Unfair or abusive collection practices (see 7.3-7.4)
Credit reporting issues (see 7.5)
Discrimination on the basis of race or receipt of public benefits, including practices causing systemic disparities (see 7.6–7.7)

Clients and their counsel should also evaluate whether they have, or can join forces with
others who have, the resources available to pursue the claims effectively.

594  See
595  See

Alexander v. Sandoval, 532 U.S. 275, 279–281, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001).
id. at 279–280.

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