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Fighting Fines & Fees: Borrowing from Consumer Law to Combat Criminal Justice Debt Abuses, Neil Sobol, Texas A&M University School of Law, 2017

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Legal Studies
Research Paper Series
Research Paper No. 17–34

Fighting Fines & Fees:
Borrowing from Consumer Law
to Combat Criminal Justice Debt Abuses
Neil L. Sobol

This paper can be downloaded without charge from the
Social Science Research Network Electronic Paper Collection

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FIGHTING FINES & FEES:
BORROWING FROM CONSUMER LAW TO
COMBAT CRIMINAL JUSTICE DEBT
ABUSES
NEIL L. SOBOL*
Although media and academic sources often describe mass
incarceration as the primary challenge facing the American
criminal justice system, the imposition of criminal justice
debt may be a more pervasive problem. On March 14, 2016,
the Department of Justice (DOJ) requested that state chief
justices forward a letter to all judges in their jurisdictions
describing the constitutional violations associated with the
illegal assessment and enforcement of fines and fees. The
DOJ’s concerns include the incarceration of indigent
individuals without determining whether the failure to pay
is willful and the use of bail practices that result in
impoverished defendants remaining in jail merely because
they are unable to afford bail.
Criminal justice debt, also known as legal financial
obligations (LFOs), impacts not only those incarcerated but
also millions of others who receive economic sanctions for
low-level offenses, including misdemeanors and ordinance
violations. LFOs, which include bail, fines, and fees, are

* Associate Professor, Texas A&M University School of Law; J.D. (cum laude,
order of the coif), Southern Methodist University; M.S. and B.A (with distinction),
Stanford University. I appreciate the encouragement and assistance of my
colleagues at Texas A&M, including Cynthia Alkon, Wayne Barnes, Mark Burge,
Luz Herrera, James McGrath, Angela Morrison, Tim Mulvaney, Carol Pauli,
Huyen Pham, Tanya Pierce, and Malinda Seymore. I am grateful for the feedback
received at presentations at the 2016 Texas Academic Support & Legal Writing
Scholars Colloquium, the 2016 Southeastern Association of Law Schools
Conference, the 2016 Law & Society Association Annual Meeting, the 2015
Central States Law Schools Association Annual Scholarship Conference, and the
2015 Texas Legal Scholars Workshop. I am especially grateful for reviews of my
Article by Professors Catherine Christopher at Texas Tech School of Law and J.D.
King at Washington and Lee School of Law. I am also thankful for the research
assistance of Macy D. Jones-Smith and Ervin Cartwright. Finally, and most
importantly, I want to thank my wife, Becky, for her continual support and
understanding.

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imposed at every stage in the justice process, including preconviction, sentencing, incarceration, and post-release
supervision.
For those who are unable to pay criminal justice debt,
“poverty penalties” are often added in the form of charges for
interest, payment plans, late payments, and collection. As
incarceration rates and local budgetary concerns have
increased, so too has the imposition of LFOs. Moreover,
while authorities are trying to reduce incarceration, criminal
justice debt may become an even greater concern, as one
popular alternative is decriminalization and the imposition
of monetary charges.
Often the financial charges are unrelated to the traditional
notions of punishment or protection of public safety and
instead, reflect a desire to maximize revenue collection. Many
municipalities outsource services to private probation
companies and collectors, which are often unsupervised and
use collection procedures not authorized for private parties.
Moreover, new technologies allow for additional collection
abuses.
To date, states and municipalities have been ineffective in
preventing abuses associated with criminal justice debt.
Relying on the approach used for consumer debt collection, I
propose a federal solution. The Fair Debt Collection
Practices Act (FDCPA) and the Consumer Financial
Protection Bureau (CFPB) provide the foundation for a
federal framework for addressing problems with the
collection of consumer debts. I contend that the justifications
that supported the federal statutory and administrative
solution for consumer debts are at least as significant, if not
greater, for a similar framework to combat abusive criminal
justice debt practices.
Not only do individuals with criminal justice debt encounter
the same abuses and consequences that consumer debtors
face—including harassment, negative credit reports, and the
adverse impact on financing and employment prospects—but
they also face denial of welfare benefits, suspension of
driver’s licenses, arrest, and incarceration. In practice, the

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imposition of criminal justice debt reflects actual
discrimination and creates distrust in the system.
Accordingly, I advocate the adoption of a federal act and the
use of the DOJ to coordinate enforcement and outreach
activities to attack abuses in the collection of criminal justice
debt.

INTRODUCTION .........................................................................844
I. ABUSES IN CRIMINAL JUSTICE DEBT COLLECTION ........... 851
A. Components of Criminal Justice Debt ......................852
B. Growth of Criminal Justice Debt ..............................855
1. Mass Incarceration and the Growth of
Criminal Justice Debt .........................................856
2. Budgetary Concerns and Growth in Criminal
Justice Debt .........................................................857
3. Decriminalization ................................................858
C. Abusive Acts in Collecting Criminal Justice Debt .... 858
1. Focus on Revenue Collection Rather than
Public Safety........................................................859
a. Abusive Use of Fines ......................................859
b. Abusive Use of Fees ........................................863
2. Outsourcing to Private Companies .....................865
3. Failure to Take into Account Ability to Pay ....... 869
a. Incarceration for Inability to Pay Bail .......... 869
b. Arrest and Incarceration for Inability to
Pay Fees and Fines ........................................872
4. Disproportionate Impact on Low-Income
Populations ..........................................................873
5. Discriminatory Impact on Minorities ................. 878
II. THE FEDERAL FRAMEWORK TO ADDRESS ABUSES IN
CONSUMER DEBT COLLECTION .........................................883
A. The Rationale for the FDCPA Supports Adoption
of a Federal Act for Criminal Justice Debt ............... 884
1. Abusive Practices ................................................886
2. Inadequacy of Laws .............................................889
3. Alternative Non-Abusive Collection Methods .... 890
4. Interstate Commerce...........................................891
5. Purposes ..............................................................892
B. The Justifications for the CFPB Support the Need
for a Federal Agency to Combat Abusive Criminal
Justice Debt Collection ..............................................893
III. APPLYING THE FRAMEWORK TO CRIMINAL JUSTICE

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DEBT COLLECTION ............................................................896
A. Prohibited Practices ..................................................898
B. Required Practices.....................................................902
C. Enforcement and Outreach Activities .......................904
IV. FEDERALISM ISSUES .........................................................909
V. CONCLUSION .....................................................................911
INTRODUCTION
The last thirty years have seen dramatic growth in civil
consumer debt and criminal justice debt, as well as abuses
associated with the collection of such debts. Consumer debt
includes amounts owed for personal, family, and household
issues, including mortgages, medical bills, credit card balances,
auto loan debt, and student loan debt. 1 Criminal justice debt
includes charges for bail, fines, and fees. 2 Consumer debtors
and individuals with criminal justice debt experience many of
the same abuses and consequences, including harassment by
collectors, adverse credit reports, restricted financing
opportunities, embarrassment, and strain on family resources.
Additionally, criminal justice debt can lead to denial of welfare
benefits, suspension of driver’s licenses, disenfranchisement,
arrest, and incarceration. 3
While federal legislative and regulatory efforts address
problems associated with the abusive collection of civil debt,
similar efforts have not been used to combat the abusive
1. 15 U.S.C. § 1692a(5) (2012) (defining debt under the Fair Debt Collection
Practices Act as “any obligation or alleged obligation of a consumer to pay money
arising out of a transaction in which the money, property, insurance or services
which are the subject of the transaction are primarily for personal, family, or
household purposes, whether or not such obligation has been reduced to
judgment”).
2. COUNCIL OF ECON. ADVISERS, ISSUE BRIEF: FINES, FEES, AND BAIL 1
(2015),
https://obamawhitehouse.archives.gov/sites/default/files/page/files/1215_
cea_fine_fee_bail_issue_brief.pdf [https://perma.cc/FLQ7-E7S5].
3. ARTHUR W. PEPIN, CONFERENCE OF STATE COURT ADM’RS, 2015-2016
POLICY PAPER: THE END OF DEBTORS’ PRISONS: EFFECTIVE COURT POLICIES FOR
SUCCESSFUL COMPLIANCE WITH LEGAL FINANCIAL OBLIGATIONS 4–9 (2016),
http://cosca.ncsc.org/~/media/Microsites/Files/COSCA/Policy%20Papers/End-ofDebtors-Prisons-2016.ashx [https://perma.cc/W9JN-TB2N]; ABBY SHAFROTH &
LARRY SCHWARTZOL, CRIMINAL JUSTICE POLICY PROGRAM & NAT’L CONSUMER
LAW CTR., CONFRONTING CRIMINAL JUSTICE DEBT: THE URGENT NEED FOR
COMPREHENSIVE REFORM 6–7 (2016), http://cjpp.law.harvard.edu/assets/
Confronting-Criminal-Justice-Debt-The-Urgent-Need-for-ComprehensiveReform.pdf [https://perma.cc/T9P5-WNA9].

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collection of criminal justice debt. 4 The failure to develop these
efforts is especially disconcerting because of the additional
collateral consequences associated with criminal justice debt. 5
The thesis of this Article is that just as abuses in civil debt
collection created a need for a federal statutory and
administrative solution, abuses in the assessment and
collection of criminal justice debt demand a similar solution.
The following examples illustrate some of the differences
in the treatment of abuses in the collection of consumer and
criminal justice debt.
Case 1: Vehicle Financing: Westlake Services, LLC and
its wholly owned subsidiary, Wilshire Consumer
Credit, LLC (collectively, “Westlake”)
Westlake services subprime vehicle loans made to
borrowers with low credit scores. 6 Using “Skip Tracy,” a webbased service that alters caller-ID information, Westlake
allegedly called debtors and their families, friends, and
employers with spoofed caller-ID information to reflect that
calls were coming from flower shops or pizza delivery
companies. 7 In its communications, Westlake pretended to be
4. This Article builds on concepts developed in my prior articles and suggests
applying the framework used to address consumer debt collection abuses to attack
abuses involved in the collection of criminal justice debt. See, e.g., Neil L. Sobol,
Protecting Consumers from Zombie-Debt Collectors, 44 N.M. L. REV. 327 (2014)
(proposing methods of preventing abuses by debt buyers collecting on consumer
debts which are often stale, previously paid or settled, or never incurred by the
alleged debtor); Neil L. Sobol, Charging the Poor: Criminal Justice Debt &
Modern-Day Debtors’ Prisons, 75 MD. L. REV. 486 (2016) (describing how the same
concerns that led to calls for abolition of debtors’ prisons for civil debt in the
eighteenth and nineteenth centuries now exist with regard to the use of
incarceration for criminal justice debt).
5. See, e.g., HUMAN RIGHTS WATCH, PROFITING FROM PROBATION: AMERICA’S
“OFFENDER-FUNDED” PROBATION INDUSTRY 29 (2014), http://www.hrw.org/
sites/default/files/reports/us0214_ForUpload_0.pdf [https://perma.cc/UX63-QT39]
(describing how a probationer facing a two-year probation to pay a $1200 fine and
a $35 monthly fee would be better off and would not face the threat of
incarceration if she had had a civil consumer debt arising from a $2400 two-year
loan with a 50 percent interest rate).
6. Consent Order ¶¶ 4–5, Westlake Servs., LLC, CFPB No. 2015-CFPB-0026
(Sept. 30, 2005), http://files.consumerfinance.gov/f/201509_cfpb_consent-orderwestlake-services-llc.pdf [https://perma.cc/9WTT-NFMR]. For more information
about Westlake, see its website http://www.westlakefinancial.com/Pages/
default.aspx (last visited Apr. 3, 2017) [https://perma.cc/887Y-SW4Q].
7. Consent Order, supra note 6, ¶¶ 7, 23. As defined in the Consent Order,

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from those companies to obtain information about the location
of debtors and their vehicles. 8 Additionally, Westlake allegedly
changed caller-ID information and pretended to be from
investigation, enforcement, and repossession entities. In so
doing, Westlake implicitly and explicitly threatened to
repossess vehicles and file criminal charges against borrowers. 9
Case 2: Private Probation Services: Sentinel Offenders
Services, LLC (“Sentinel”)
Sentinel is a private probation company, which offers “zero
cost” solutions to municipalities that outsource probation and
supervision of criminal defendants. 10 Sentinel’s revenue is
based solely on fees collected from those under probation or
supervision. 11 Private probation companies often act with little
or no governmental oversight. 12
Thomas Barrett of Georgia is one of Sentinel’s victims. His
widely reported story reflects the difficult choices that indigent
individuals face when dealing with criminal justice debt.13
Barrett—a homeless, unemployed veteran—was arrested for
shoplifting a can of beer worth less than $2. Barrett refused his
“free” public defender because he was told the representation
would cost $50, and he pleaded no contest. 14 He received a $200
fine, was sentenced to twelve months of probation, and was
ordered to wear an electronic monitoring bracelet under the
supervision of Sentinel. 15 Sentinel charged Barrett a $50 set-up
“‘Skip Tracy’ means a web-based, multimedia, third-party paid service that allows
users to place outgoing calls and choose (a) the phone number from which the
calls will appear to have originated; and (b) particular text that may appear on
call recipients’ phones as Caller ID.” Id. ¶ 3m.
8. Id. ¶¶ 24–26.
9. Id. ¶¶ 11–14, 48–52.
10. HUMAN RIGHTS WATCH, supra note 5, at 14.
11. Id. at 15–16.
12. Id. at 55–62.
13. Id. at 34; Note, Policing and Profit, 128 HARV. L. REV. 1723, 1726 (2015);
Terry Carter, Privatized Probation Becomes a Spiral of Added Fees and Jail Time,
A.B.A. J., Oct. 2014, at 61, http://www.abajournal.com/magazine/article/
probationers_prison_privatized_supervision_becomes_a_spiral_of_added_fees_j
[https://perma.cc/S7H4-MVHL]; Joseph Shapiro, Measures Aimed At Keeping
People Out Of Jail Punish The Poor, NPR (May 24, 2014, 4:58 PM),
http://www.npr.org/2014/05/24/314866421/measures-aimed-at-keeping-people-outof-jail-punish-the-poor [https://perma.cc/XQX5-E5A7].
14. Shapiro, supra note 13.
15. HUMAN RIGHTS WATCH, supra note 5, at 34.

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fee, a $12 daily rental, and an additional $39 in monthly fees. 16
Unfortunately, Barrett’s income was only about $300 a month,
which he earned from donating plasma. When Barrett chose to
skip meals to save money, he was limited in his ability to give
plasma. Eventually, he fell behind on his payments, and he
owed over $1000 in fees, more than five times the original
fine. 17
Because Sentinel applied payments first to amounts owed
to Sentinel, Barrett still owed the full amount of the original
fine as well as outstanding amounts due on Sentinel’s fees.
When he was unable to pay Sentinel’s fees, Sentinel petitioned
the court to revoke Barrett’s probation. Relying on testimony
from Sentinel, the court revoked his probation and jailed
Barrett. 18 Neither Sentinel nor the court considered his ability
to pay. 19
Although the civil and criminal scenarios both involve the
abusive collection of debt, the protections available to the
affected parties vary significantly. In the first case, federal
statutory remedies under the Fair Debt Collection Practices
Act (FDCPA) exist to help consumers faced with abusive debt
collectors. 20 For example, the FDCPA prohibits collectors of
consumer debt from engaging in harassing or abusive conduct,
making false or misleading representations, or using unfair or
unconscionable means. 21 It also places restrictions on
communications with third parties and establishes affirmative
disclosure requirements for collectors. 22 Additionally, in 2010,
Congress established the Consumer Financial Protection
Bureau (CFPB) to protect consumers “from unfair, deceptive, or
abusive acts and practices.” 23 The CFPB has investigative,
regulatory, and enforcement powers. 24
The CFPB investigated the complaints against Westlake
and filed an administrative proceeding alleging violations of
the FDCPA on over 137,000 loan accounts. 25 The CFPB found

16.
17.
18.
19.
20.
21.
22.
23.
24.
25.

Shapiro, supra note 13.
HUMAN RIGHTS WATCH, supra note 5, at 34–35.
Id. at 2, 34–35.
Id. at 34–35.
15 U.S.C. §§ 1692–1692o (2012).
Id. §§ 1692d–1692f.
Id. §§ 1692c, 1692g.
12 U.S.C. § 5511(b)(2) (2012).
Id. § 5511(c).
Consent Order, supra note 6, ¶ 10.

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that Westlake violated the FDCPA’s prohibitions on debt
collectors
using
false,
deceptive,
or
misleading
representations. 26 Specifically, the CFPB found that Westlake
used false pretenses in contacting borrowers to determine
location information and deceived consumers about who they
were and what actions they intended to take, including falsely
threatening imminent repossession and criminal charges.27
Additionally, the CFPB found that the calls to third parties—
including employers, families, and friends—illegally disclosed
loan information. 28
Westlake and the CFPB entered into a consent order
providing that Westlake pay more than $44 million in victim
relief and $4.25 million as a civil penalty. 29 Additionally, the
order established specific conduct requirements and a
compliance plan for Westlake that included recordkeeping and
reporting obligations. 30 As a result, the CFPB and the FDCPA
provided relief for victims of Westlake’s abusive and deceptive
actions and established a plan to prevent further abuses.
Mr. Barrett and other similarly situated defendants, on
the other hand, do not have the same safeguards. Although
United States Supreme Court case law dating back to 1983
requires a finding of ability to pay before revoking an
individual’s probation, 31 in practice, courts often fail to have
such hearings. 32 Moreover, even if courts hold hearings, they
often fail to adequately assess ability to pay, and indigent
individuals are typically not represented by counsel. 33 A
comprehensive federal framework to confront abuses in
criminal justice debt collection does not exist. Instead, abuses
26. Id. ¶ 17 (alleging violations under 15 U.S.C. § 1692e).
27. Id. ¶¶ 17–28, 48–54 (alleging violations under 15 U.S.C. § 1692e(5), (10),
(14) as well as violations under 12 U.S.C. §§ 5531(a), 5536(a)(1)).
28. Id. ¶¶ 29–47 (alleging violations under 15 U.S.C. § 1692c(b) as well as
violations under 12 U.S.C. §§ 5531(c)(l), 5536(a)(1)(B)).
29. Id. ¶¶ 98–100, 107–111; Press Release, Consumer Fin. Prot. Bureau,
CFPB Orders Indirect Auto Finance Company to Provide Consumers $44.1
Million in Relief for Illegal Debt Collection Tactics (Oct. 1, 2015),
http://www.consumerfinance.gov/newsroom/cfpb-orders-indirect-auto-financecompany-to-provide-consumers-44-1-million-in-relief-for-illegal-debt-collectiontactics/ [https://perma.cc/44TM-VDT6]. Under the Consent Order, victim relief
includes payments to affected consumers for nearly $26 million and reductions in
amounts owed of nearly $17.5 million. Consent Order, supra note 6, ¶¶ 98–100.
30. Consent Order, supra note 6, ¶¶ 91–97, 116–17, 121–24.
31. Bearden v. Georgia, 461 U.S. 660, 671–73 (1983).
32. Sobol, Charging the Poor, supra note 4, at 512–14.
33. Id. at 514–15.

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in criminal justice debt collection are often not addressed, and,
even in situations where they are raised, it is typically by a
non-profit group filing a lawsuit that is limited to a particular
municipality. 34 A piecemeal municipality-by-municipality
approach, however, is not an effective means of addressing the
national problems of abuses in criminal justice debt. 35
Abusive collection of criminal justice debt is a significant
and growing problem in the United States. Estimates indicate
that “tens of millions” 36 have been charged criminal justice
debt aggregating more than $50 billion. 37 Fueled by the
development of mass incarceration and budgetary concerns at
the state and local level, the debt burden on defendants has
increased dramatically over the last thirty years. 38 Moreover,
unintended consequences of current efforts to reduce
incarceration may further increase criminal justice debt as
municipalities replace incarceration with fines or charge fees
for participation in alternative programs. 39 Unfortunately,
those unable to pay these assessments face not only increased
criminal justice debt but may also wind up incarcerated for
their failure to pay. 40
The abuses in criminal justice debt collection also include
over-reliance on the criminal justice system to fund municipal
operations. The Ferguson report revealed a system in which all
local parties—the city, the police, and the court—focused on

34. Equal Justice Under Law is a non-profit group that has filed several
actions seeking to end abuses related to the collection of criminal justice debt
including actions to end the use of cash bail systems, debtors’ prisons, and abusive
probation practices. See Litigation, EQUAL JUSTICE UNDER LAW,
http://equaljusticeunderlaw.org/wp/current-cases/ (last visited Apr. 3, 2017)
[https://perma.cc/3PK9-M6RW].
35. See Radley Balko, A Debtors’ Prison in Mississippi, WASH. POST (Oct. 21,
2015), https://www.washingtonpost.com/news/the-watch/wp/2015/10/21/a-debtorsprison-in-mississippi/ [https://perma.cc/BD2P-GNPD].
36. Katherine Beckett & Alexes Harris, On Cash and Conviction: Monetary
Sanctions as Misguided Policy, 10 CRIMINOLOGY & PUB. POL’Y 509, 516 (2011).
37. LAUREN-BROOKE EISEN, BRENNAN CTR. FOR JUSTICE, CHARGING INMATES
PERPETUATES MASS INCARCERATION 1 (2015), https://www.brennancenter.org/
sites/default/files/blog/Charging_Inmates_Mass_Incarceration.pdf
[https://perma.cc/SZJ8-UR9P].
38. See infra Part I.B.
39. Alexandra Natapoff, Misdemeanor Decriminalization, 68 VAND. L. REV.
1055, 1086–92 (2015).
40. For a more detailed discussion of the problems that arise when indigent
individuals are incarcerated for failure to pay criminal justice debt, see Sobol,
Charging the Poor, supra note 4.

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revenue collection rather than public safety. 41 Similarly, the
increasing reliance on outsourced services has created further
abuses based on lack of supervision of private, for-profit
companies who act with authority and powers delegated by
municipalities. 42 Moreover, criminal justice debt is often
imposed without regard to ability to pay. 43 As a result, indigent
individuals and their families become trapped in a poverty
cycle that they can never escape. 44
The poor and minorities are most susceptible to abusive
collection practices. 45 Ironically, the inability to pay often
results in additional fees, known as poverty penalties that exist
solely because of an individual’s inability to pay. These
penalties include late fees, installment charges, and
supervision assessments until payment is made. Criminal
justice debt and the corresponding criminal record can lead to a
loss of welfare benefits and create difficulties in obtaining
financing, housing, and employment, which, in turn, further
reduce the ability to repay the debt. 46 Moreover, the fear of
arrest or incarceration for failure to pay creates distrust in the
system. 47 Additionally, the use of discretionary fines and fees is
subject to abuse and discrimination in practice. 48 A more
effective system is necessary for addressing abuses in the
41. U.S. DEP’T OF JUSTICE, CIVIL RIGHTS DIV., INVESTIGATION OF THE
FERGUSON
POLICE
DEPARTMENT
10
(2015),
http://www.justice.gov/
crt/about/spl/documents/ferguson_findings_3-4-15.pdf
[https://perma.cc/2BK45AC2] [hereinafter FPD REP.]. The report on the Ferguson Police Department was
initiated after an officer’s 2014 fatal shooting of Michael Brown, an unarmed
black teenager. Eric Holder, U.S. Attorney Gen., U.S. Dep’t of Justice, Attorney
General Holder Delivers Update on Investigations in Ferguson, Missouri,
JUSTICE.GOV (Mar. 4, 2015), http://www.justice.gov/opa/speech/attorney-generalholder-delivers-update-investigations-ferguson-missouri [https://perma.cc/A4TCHSXM]. In the report, the DOJ investigated not only the police department but
also municipal and court officials. FPD REP. supra, at 1. The examination
included interviews of officials and city residents, courtroom observations, and
review of police, city, and court records. Id. For a more detailed discussion of the
background, methodology, findings, and conclusions of the report, see Neil L.
Sobol, Lessons Learned from Ferguson: Ending Abusive Collection of Criminal
Justice Debt, 15 U. MD. L.J. OF RACE RELIGION GENDER & CLASS 293, 295–303
(2015).
42. See infra Part I.C.2.
43. See infra Part I.C.3.
44. See infra Part I.C.4.
45. See infra Part I.C.4, 5.
46. See infra Part I.C.4.
47. Id.
48. See infra Part I.C.5.

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collection of criminal justice debt.
A federal statutory and regulatory approach addresses
abuse in the collection of consumer debt. The FDCPA sets forth
prohibited practices (e.g., time and place restrictions on
communications), and required practices (e.g., disclosure
notices) for the collection of consumer debt. 49 The CFPB
administers the FDCPA, collects consumer complaint data, and
coordinates enforcement, outreach, and research activities with
federal, state, and local governments and organizations. 50
I advocate a similar system for confronting collection abuse
in the criminal justice arena. I suggest the adoption of a federal
statute, the Fair Justice Debt Practices Act (FJDPA), and use
of the Department of Justice (DOJ) to help with the
administration of the FJDPA and the coordination of
enforcement, research, and outreach activities.
I begin by identifying the collection abuses that exist in the
criminal justice system and how such abuses adversely impact
the poor and minorities. Part II describes the history of FDCPA
and CFPB and shows that the concerns that led to the creation
of a federal framework for addressing civil debt are at least as
great, if not greater, than the concerns that exist in the
collection of criminal justice debt given the additional
consequences, including the threat of loss of liberties.
Part III examines the principal remedies developed in the
FDCPA and CFPB for civil debt collection and makes proposals
for similar methods to address abuses in the collection of
criminal justice debt. Finally, in Part IV, I briefly address some
of the federalism concerns that will likely arise based on my
call for a federal solution.
The consequences of abuses in the criminal justice system
demand that a better system be developed. We should draw on
our experience in combating abuses in consumer debt collection
to help prevent the even more severe consequences that arise
in collecting criminal justice debt.
I.

ABUSES IN CRIMINAL JUSTICE DEBT COLLECTION

While the issue of mass incarceration in the United States
has generated substantial political debate and media coverage,

49.
50.

See infra Part III.A, B.
See infra Part III.C.

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criminal justice debt impacts more citizens than
incarceration. 51 Criminal justice debt has grown along with the
growth in incarceration. 52 Moreover, criminal justice debt is
not limited to those incarcerated as it may also extend to
anyone arrested or under supervision. 53 Approximately onequarter to one-third of American adults have an arrest or
criminal record. 54 In 2012, police made over 12 million
arrests. 55 This Part identifies the components of criminal
justice debt, explains the reasons for growth in criminal justice
debt, and identifies major abuses associated with the collection
of criminal justice debt, including the collateral consequences
and disproportionate impact on the poor and minorities.
A.

Components of Criminal Justice Debt

Criminal justice debt is a broad concept encompassing all
of the economic charges imposed in the justice process. Often
labeled as legal financial obligations, these economic sanctions

51. See JAMES JACOBS, THE ETERNAL CRIMINAL RECORD 93 (2015) (claiming
that while scholars and media focus on America’s disproportionate use of
incarceration, the “vast majority of convicted misdemeanants are not
incarcerated; even the majority of convicted felons are not sentenced to prison”);
Natapoff, supra note 39, at 1057 (describing how misdemeanor charges represent
approximately four-fifths of the cases in state courts and impact 10 million
Americans annually); Jason Furman & Sandra Black, Fines, Fees, and Bail: An
Overlooked Part of the Criminal Justice System That Disproportionately Impacts
the Poor, HUFFINGTON POST: THE BLOG (Dec. 3, 2015, 12:15 PM),
http://www.huffingtonpost.com/jason-furman/fines-fees-and-bail-an-ov_b_8702912
.html [https://perma.cc/NQB7-FKAB] (stating that criminal justice reforms should
not be limited to mass incarceration as reform is also necessary to address
“regressive monetary punishments”).
52. COUNCIL OF ECON. ADVISERS, supra note 2, at 2–3.
53. RACHEL L. MCLEAN & MICHAEL D. THOMPSON, COUNCIL OF STATE GOV’T
JUSTICE CENT., REPAYING DEBTS 3 (2007), http://victimsofcrime.org/docs/defaultsource/restitution-toolkit/repaying_debts_full_report.pdf?sfvrsn=2
[https://perma.cc/R6QW-BED4] (recognizing that “many individuals . . . pass
through the court system and owe substantial financial obligations but have not
been sentenced to prison or jail”).
54. JACOBS, supra note 51, at 1 (claiming that “federal and state criminal
repositories contain criminal records for approximately 25 percent of the U.S.
adult population”); Gary Fields & John R. Emshwiller, As Arrest Records Rise,
Americans Find Consequences Can Last a Lifetime, WALL ST. J. (Aug. 18, 2014,
10:30 PM), http://www.wsj.com/articles/as-arrest-records-rise-americans-findconsequences-can-last-a-lifetime-1408415402
[https://perma.cc/6ZFZ-WZ8T]
(claiming that “the FBI currently has 77.7 million individuals on file in its master
criminal database—or nearly one out of every three American adults”).
55. JACOBS, supra note 51, at 94.

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can be assessed at any stage in the process from pre-conviction
to sentencing to incarceration to probation or supervision. 56
The charges include fines, restitution, bail, and fees. 57
Additionally, the charges may be described as assessments,
surcharges, or sanctions. 58 Purported justifications for the
charges include punishment, deterrence, victim compensation,
and reimbursement. 59 Child support obligations that accrue
during incarceration are also a significant and growing concern
for many indigent inmates, but they are beyond the scope of
this Article. 60 Likewise, restitution, which has traditionally
focused on the compensation of victims, is a significant
financial burden faced by criminal defendants and is also
beyond the reach of this Article. 61 Instead, this Article will
primarily focus on abuses related to the collection of bail, fines,
and fees.
On any given day, over 450,000 people in the United States
are incarcerated without having been convicted of an offense.62
56. Katherine Beckett & Naomi Murakawa, Mapping the Shadow Carceral
State: Toward an Institutionally Capacious Approach to Punishment, 16
THEORETICAL CRIMINOLOGY 221, 227 (2012), http://tcr.sagepub.com/content/16/2/
221 [https://perma.cc/5SGR-HU49].
57. Sobol, Charging the Poor, supra note 4, at 498–504 (providing a more
detailed development of the components and history of criminal justice debt). For
a state-by-state listing of examples of fines and fees, see ALEXES HARRIS, A
POUND OF FLESH 28–41 tbl.2.4 (2016).
58. MCLEAN & THOMPSON, supra note 53, at 2.
59. Kirsten D. Levingston & Vicki Turetsky, Debtors’ Prison—Prisoners’
Accumulation of Debt as a Barrier to Reentry, 41 CLEARINGHOUSE REV. J. POV. L.
& POL’Y 187, 188 (2007).
60. Ann Cammett, Shadow Citizens: Felony Disenfranchisement and the
Criminalization of Debt, 117 PENN ST. L. REV. 349, 349 (2012). Professor
Cammett discusses the impact of child support obligations incurred during
incarceration on re-entry and the right to vote. Id. at 384–86. See also DOUGLAS
N. EVANS, JOHN JAY COLL. OF CRIMINAL JUSTICE, THE DEBT PENALTY: EXPOSING
THE FINANCIAL BARRIERS TO OFFENDER REINTEGRATION 5–6 (2014),
https://www.prisonfellowship.org/site/wp-content/uploads/2015/12/The-DebtPenalty_John-Jay_August-2014.pdf [https://perma.cc/WBM4-UXVJ] (describing
survey results that inmates rank the need for child support assistance higher
than employment or housing assistance); MITALI NAGRECHA, MARY FAINSOD
KATZENSTEIN & ESTELLE DAVIS, CTR. FOR CMTY. ALTS., FIRST PERSON ACCOUNTS
OF CRIMINAL JUSTICE DEBT: WHEN ALL ELSE FAILS, FINING THE FAMILY 28 (2015),
http://communityalternatives.org/pdf/Criminal-Justice-Debt.pdf [https://perma.cc/
7AQ7-X3UZ] (“Paying thousands of dollars in accumulated child support arrears
from prison is not only unimaginable, but impossible.”).
61. Cortney E. Lollar, What is Criminal Restitution?, 100 IOWA L. REV. 93,
101–05 (2014) (discussing the evolution of criminal restitution from disgorgement
of defendant’s unjust enrichment to compensation for victim’s losses).
62. PETER WAGNER & BERNADETTE RABUY, MASS INCARCERATION: THE

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Instead, they are in jail because they have either been denied
bail or, as in the vast majority of cases, they are unable to
make a bail payment. 63 The imposition of bail impacts the
release of an arrested individual before trial. 64 The purported
purposes include preventing flight risk and reducing danger to
society. 65 The goal is to set bail at a rate which is not punitive
but will encourage defendants to appear at trial. 66 However,
bail is often set based solely on the alleged offense without
regard to the individual’s ability to pay. 67
Fines are assessed as a part of sentencing and are typically
associated with a punitive or deterrent rationale. 68 The hope is
that the amount of the fine will not only sufficiently punish
current offenders but also deter potential future offenders from
committing the offense. Fines are often used as a supplement
to imprisonment. 69 Additionally, fines are increasingly
becoming the sole sanction for many misdemeanors, including
traffic violations. 70 While statutes or rules may set forth
certain mandatory fines, judges also have considerable
discretion in setting other fine amounts. 71
Fees are generally thought of as a method of
reimbursement. 72 For purposes of this Article, fees also include
WHOLE PIE 2016 (2016), https://www.prisonpolicy.org/reports/pie2016.html
[https://perma.cc/AFD2-3PZT] (chart reflecting that 451,000 of the 646,000
inmates in local jails are not convicted).
63. Nick Pinto, The Bail Trap, N.Y. TIMES (Aug. 13, 2015),
http://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html?_r=0
[https://perma.cc/U8PB-JYBD].
64. COUNCIL OF ECON. ADVISERS, supra note 2, at 1.
65. Id. See also Shima Baradaran & Frank L. McIntyre, Predicting Violence,
90 TEX. L. REV. 497, 503–13 (2012) (describing the development of the use of
dangerousness standard for determining pretrial release).
66. Shaila Dewan, When Bail is out of Defendant’s Reach, Other Costs Mount,
N.Y. TIMES (June 10, 2015), http://www.nytimes.com/2015/06/11/us/when-bail-isout-of-defendants-reach-other-costs-mount.html [https://perma.cc/C8RK-6KAC];
Furman & Black, supra note 51.
67. COUNCIL OF ECON. ADVISERS, supra note 2, at 7; Furman & Black, supra
note 51.
68. COUNCIL OF ECON. ADVISERS, supra note 2, at 1.
69. Michael Tonry & Mary Lynch, Intermediate Sanctions, 20 CRIME & JUST.
99, 127 (1996).
70. Natapoff, supra note 39, at 1067–71 (discussing the move to fine-only and
non-jailable misdemeanors as alternatives to incarceration).
71. Jessica M. Eaglin, Improving Economic Sanctions in the States, 99 MINN.
L. REV. 1837, 1849–50 (2015) (describing mandatory fines in Florida,
Pennsylvania, and Washington).
72. COUNCIL OF ECON. ADVISERS, supra note 2, at 1 (recognizing that fees
may also have compensatory, punitive, and deterrent purposes).

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court costs and surcharges. Recipients of fees include the
judicial system (courts, prosecutors, and defense counsel), the
incarceration system (jails and prisons), the supervision system
(probation and parole companies), and the collection system
(debt collectors). 73 Fees can apply at any stage from preconviction to post-incarceration supervision. Fees may apply
even when individuals are not convicted. 74 As with fines,
mandatory fees are set by legislation or court rule; however,
judges often impose additional discretionary fees. 75 Moreover,
fees imposed often fund items that are not directly related to
the offense or even to the criminal justice system. 76 For
example, fees may go to general fund revenue or specific
purposes, such as a library or training. 77
B.

Growth of Criminal Justice Debt

While concerns about criminal justice debt date back to the
1980s, the amount of criminal justice debt has grown
exponentially in the last thirty years. 78 Estimates reflect that
over ten million individuals in the United States have criminal
justice debt aggregating over $50 billion and that the amount is
growing. 79 One study of eleven states found a per-state average
of $178 million in uncollected criminal justice debt. 80
Approximately two-thirds of prisoners have criminal justice
debt. 81 This section will examine mass incarceration and
budgetary pressures as two likely explanations for the growth
73. See, e.g., 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, 322 (2014) (identifying that assessments of fees go beyond the courts
and include prisons and jails).
74. See, e.g., SANETA DEVUONO-POWELL, CHRIS SCHWEIDLER, ALICIA
WALTERS & AZADEH ZOHRABI, ELLA BAKER CENT., FORWARD TOGETHER,
RESEARCH ACTION DESIGN, WHO PAYS? THE TRUE COST OF INCARCERATION ON
FAMILIES 14 (2015), http://ellabakercenter.org/sites/default/files/downloads/whopays.pdf [https://perma.cc/3JJD-EUDF] (public defender fees in Florida and Ohio
are assessed even when defendants are found not guilty).
75. Eaglin, supra, note 71, at 1849–50.
76. PEPIN, supra note 3, at 6–8.
77. MCLEAN & THOMPSON, supra note 53, at 2.
78. Leah A. Plunkett, Captive Markets, 65 HASTINGS L.J. 57, 67–68 (2013).
See also Mary Fainsod Katzenstein & Mitali Nagrecha, A New Punishment
Regime, 10 CRIMINOLOGY & PUB. POL’Y 555, 556–57 (2011).
79. EISEN, CHARGING INMATES, supra note 37, at 1.
80. MCLEAN & THOMPSON, supra note 53, at 7.
81. COUNCIL OF ECON. ADVISERS, supra note 2, at 3.

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in criminal justice debt. Additionally, it will identify how
incarceration alternatives may increase the burdens of criminal
justice debt.
1. Mass Incarceration and the Growth of Criminal
Justice Debt
As incarceration has exploded, so too has the incidence of
criminal justice debt. 82 In 1985, the number of adults
incarcerated in the United States was approximately 750,000,
with about 500,000 in prison and 250,000 in jail. 83 By 2008,
incarceration had tripled and reached its peak at over 2.3
million with more than 1.6 million adults in prison and over
780,000 adults in jail. 84 While recent levels have dropped, more
than 2.2 million adults are still currently incarcerated. 85
As the United States leads the world in “mass
incarceration,” it has also become the leader in “mass
supervision.” 86 The over two million people currently subject to
incarceration represent only about one-third of those under
correctional control, as an additional 820,000 are subject to
parole, and 3.8 million are subject to probation. 87 The total
number of adults under correctional supervision (probation,
parole, jail or prison) is over 6.8 million, reflecting 2.8 percent
of the population or approximately one in thirty-six adults in
the U.S. 88 In contrast, in 1980, only 1.1 percent of adults were
subject to correctional supervision. 89
82. Katzenstein & Nagrecha, supra note 78, at 556–57.
83. TOM HESTER, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS,
NCJ 103957, CORRECTIONAL POPULATIONS IN THE UNITED STATES, 1985, at 6
tbl1.2 (1987), http://www.bjs.gov/content/pub/pdf/cpus85.pdf [https://perma.cc/
A2AT-DJ7Q].
84. DANIELLE KAEBLE, LAUREN GLAZE, ANASTASIOS TSOUTIS & TODD
MINTON, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, NCJ 249513,
CORRECTIONAL POPULATIONS IN THE UNITED STATES, 2014, at 2 tbl.1 (2015),
http://www.bjs.gov/content/pub/pdf/cpus14.pdf [https://perma.cc/Y27U-BB2N].
85. Id. at 2.
86. Eaglin, supra note 71, at 1843. Although the United States has the most
prisoners, Seychelles has recently overtaken the United States to become the
country with the highest prison population rate. ROY WALMSLEY, INST. FOR
CRIMINAL POLICY RESEARCH, WORLD PRISON POPULATION LIST 2 (2016),
http://www.prisonstudies.org/sites/default/files/resources/downloads/world_prison
_population_list_11th_edition.pdf [https://perma.cc/HTG9-PB5R].
87. WAGNER & RABUY, supra note 62.
88. DANIELLE KAEBLE ET AL., supra note 84, at 1.
89. TRACY L. SNELL, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS,

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The growth in incarceration, probation, and parole has led
to increased costs. 90 From 1983 to 2012, criminal justice costs
grew by more than 650 percent. 91 One study found that the
cost of the expansion in the criminal justice system during the
thirty-year period was $3.4 trillion. 92 By 2012, criminal justice
costs were over $270 billion with “local spending compris[ing]
approximately half of total expenditures.” 93 The annual
expenditures equate to more than $870 per capita. 94
2. Budgetary Concerns and Growth in Criminal
Justice Debt
At the same time that mass incarceration, probation, and
parole have burdened the criminal justice system with
increased costs, governments have had to confront declining
budgets. As mass incarceration reached its peak levels in 2007
and 2008, the recession hit states and localities resulting in
reduced tax revenues and funding. 95 Rather than increasing
tax rates, many municipalities sought to pass the costs of the
criminal justice system on to defendants. 96 For example, in
New Orleans, criminal justice debt “account[s] for almost two-

NCJ 156675, CORRECTIONAL POPULATIONS IN THE UNITED STATES, 1993, at 1
(1995), http://www.bjs.gov/content/pub/pdf/cpus93ex.pdf [https://perma.cc/H2UDB4CC].
90. COUNCIL OF ECON. ADVISERS, ECONOMIC PERSPECTIVES ON
INCARCERATION
AND
THE
CRIMINAL
JUSTICE
SYSTEM
10
(2016),
https://obamawhitehouse.archives.gov/sites/default/files/page/files/20160423_cea_i
ncarceration_criminal_justice.pdf [https://perma.cc/J6GH-DWQA].
91. EISEN, supra note 37, at 2.
92. COMMUNITIES UNITED ET AL., THE $3.4 TRILLION MISTAKE: THE COST OF
MASS INCARCERATION AND CRIMINALIZATION, AND HOW JUSTICE REINVESTMENT
CAN BUILD A BETTER FUTURE FOR ALL 7 (2016), http://www.maketheroad.org/
pix_reports/Justice%20Reinvestment%20Final%20Report.pdf
[https://perma.cc/
ZJ53-DNVN].
93. COUNCIL OF ECON. ADVISERS, supra note 2, at 2.
94. COUNCIL OF ECON. ADVISERS, supra note 90, at 10.
95. SUZANNE M. KIRCHHOFF, CONG. RESEARCH SERV., ECONOMIC IMPACTS OF
PRISON
GROWTH
2
(2010),
https://www.fas.org/sgp/crs/misc/R41177.pdf
[https://perma.cc/7GB7-VUXR]. See also ALEX BENDER ET AL., NOT JUST A
FERGUSON PROBLEM: HOW TRAFFIC COURTS DRIVE INEQUALITY IN CALIFORNIA 12
(2015),
http://www.lccr.com/wp-content/uploads/Not-Just-a-Ferguson-ProblemHow-Traffic-Courts-Drive-Inequality-in-California-4.8.15.pdf
[https://perma.cc/
LX3X-V4NX] (describing how the 2008 recession led to “unprecedented budget
cuts” for the California court system); Eaglin, supra note 71, at 1843–44, 1866–67.
96. EISEN, supra note 37, at 2.

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thirds of the criminal court’s general operating budget.”97
Additionally, many municipalities impose criminal justice debt
to help overcome general budget deficits unrelated to criminal
justice services. 98
3. Decriminalization
Although mass incarceration and budget concerns have
contributed to the growth in criminal justice debt, efforts to
reduce incarceration may create unintended consequences by
increasing the debt burden on indigent defendants. 99 Some
states have increased fees to “offset diminishing funding for
alternatives to incarceration.” 100 In an attempt to reduce
incarceration, many states are now decriminalizing certain
misdemeanors by making them fine-only or non-jailable
offenses. 101 With a more streamlined process and providing
fewer procedural protections than jailable offenses,
decriminalization has led to a net-widening effect as
municipalities have expanded coverage and imposed criminal
justice debt on more individuals. 102
C.

Abusive Acts in Collecting Criminal Justice Debt

Abuses in collection have accompanied the growth of
criminal justice debt and are expected to increase as debt
escalates. 103 The abuses include the misplaced reliance on
monetary sanctions as a tool for revenue collection; the failure
to adequately supervise private parties who perform traditional
governmental functions in collecting criminal justice debt; the
failure to take into account ability to pay in imposing criminal
justice debt and incarcerating defendants; and the
disproportionate and discriminatory impact on poor and
minorities.

97. AM. CIVIL LIBERTIES UNION, IN FOR A PENNY: THE RISE OF AMERICA’S
NEW DEBTORS’ PRISONS 8 (2010), https://www.aclu.org/files/assets/InForAPenny_
web.pdf [https://perma.cc/7JS8-VLD3].
98. Eaglin, supra note 71, at 1867–68.
99. Natapoff, supra note 39, at 1102–04.
100. Eaglin, supra note 71, at 1848–49.
101. Id. at 1845; Natapoff, supra note 39, at 1067.
102. Natapoff, supra note 39, at 1059.
103. Furman & Black, supra note 51.

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1. Focus on Revenue Collection Rather than Public
Safety
The March 2015 report on Ferguson described in shocking
detail a criminal justice system focused more on revenue
maximization than the protection of public safety. 104
Unfortunately, the experience in Ferguson is neither new nor
unique. 105 The misplaced reliance on profit generation rather
than public safety creates public mistrust of the government. 106
The over-reliance on revenue collection is most evident in the
growing and pervasive use of fines and fees by municipalities.
a. Abusive Use of Fines
A major criticism of some municipalities is their unfettered
use of fines to generate revenue. 107 Fines have seen a dramatic
increase in the last few decades. For example, from 1986 to
2004, the percentage of incarcerated individuals who had also
received a fine more than tripled. 108 Misdemeanor offenses
have also grown at significant rates, currently representing
about 80 percent of state court dockets and including over ten
million non-traffic cases each year. 109 As misdemeanors have
104. FPD REP., supra note 41, at 10. For a more detailed discussion of the
Ferguson Report and how its conclusions are not limited to Ferguson, Missouri,
see Sobol, supra note 41.
105. Vanita Gupta, Head, Civ. Rights Div., Remarks at the Symposium on the
Criminalization of Poverty at the University of Michigan Law School (Feb. 19,
2016), http://www.justice.gov/opa/speech/head-civil-rights-division-vanita-guptadelivers-remarks-symposium-criminalization
[https://perma.cc/3P6R-B26C]
(declaring that the “problem of excessive fines and fees extends well beyond
Ferguson . . . [and] exists in many of the country’s 6,500 municipal courts”);
DEVUONO-POWELL ET AL., supra note 74, at 16; Sobol, supra note 41, at 294 n.6.
106. Loretta E. Lynch, U.S. Attorney Gen., Remarks at White House
Convening on Incarceration and Poverty (Dec. 3, 2015), https://www.justice.gov/
opa/speech/attorney-general-loretta-e-lynch-delivers-remarks-white-houseconvening-incarceration-and [https://perma.cc/YV36-84G3].
107. Emily Shaw, Where Local Governments Are Paying the Bills with Police
Fines,
SUNLIGHT
FOUND.
(Sept.
26,
2012,
12:02
PM),
https://sunlightfoundation.com/2016/09/26/where-local-governments-are-payingthe-bills-with-police-fines/ [https://perma.cc/C9GA-9HCH].
108. COUNCIL OF ECON. ADVISERS, supra note 2, at 3 (explaining that 12
percent of inmates received fines in 1986 and 37 percent of inmates received fines
in 2004) (citing Alexes Harris et al., Drawing Blood from Stones: Legal Debt and
Social Inequality in the Contemporary United States, 115 AM. J. SOC. 1753, 1770
(2010)).
109. Alexandra Natapoff, Misdemeanors, 85 S. CAL. L. REV. 1313, 1320–21

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increased, economic sanctions accompanying these offenses
have “ballooned.” 110 Fines for these lower-level offenses have
led to concerns about whether courts are just acting as
collection agents and whether the economic charges are merely
a form of taxes. 111
The move towards decriminalization of misdemeanors to
fine-only offenses also creates the potential for abuse by
municipalities using criminal justice debt as funding
sources. 112 Under such circumstances, due to net-widening
effects and lack of procedural protections, more individuals
become vulnerable to the imposition of fines and fees. 113 The
alternatives to incarceration create opportunities, or “revenue
traps,” for local governments to generate revenue through new
fines and fees imposed on defendants. 114
The Ferguson report reflects an emphasis on using fines to
generate revenue at all stages of the criminal justice process.115
Police officers were under “pressure . . . to write citations,
independent of any public safety need” 116 and to “fill the
revenue pipeline.” 117 Promotion of police officers was based on
the number of tickets issued. 118 Additionally, daily postings at
the police station highlighted the top ticket producers. 119 In
response to the city establishing revenue generation as a
primary goal, the municipal court set fines at levels that were
either at or near the highest rates in the state, created new
fines, and worked with city officials to meet revenue targets.120
For example, the court established a failure to appear fine
which led to the collection of more than $440,000 in 2013. 121
The DOJ alleges that the court routinely used arrest warrants
as a collection tool rather than to promote public safety. 122 In
(2012).
110. Id. at 1326.
111. Natapoff, supra note 39, at 1099 (quoting a 2011–12 policy paper from the
Conference of State Court Administrators).
112. Id. at 1100–01.
113. Id. at 1059.
114. Id. at 1098–1103.
115. FPD REP., supra note 41, at 10.
116. Id.
117. Id. at 13.
118. Id. at 2.
119. Id. at 11.
120. Id. at 14.
121. Id. at 43.
122. Id. at 55.

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2013, the court issued 33,000 warrants, and “[m]any residents
were jailed because they could not afford the hundreds of
dollars in court fines for offenses such as traffic violations.” 123
Excessive use of fines is not limited to Ferguson. Some
municipalities faced with severe budget issues “ticket
everything in sight to keep the town functioning.” 124 These
cities encourage law enforcement to issue citations, and the
“courts are the mechanism for collection.” 125
For example, a study of traffic ticket revenue in Colorado
found forty towns collecting more than the state’s four percent
average with the top offender—Campo, Colorado—collecting 93
percent of its revenue from traffic tickets. 126 Similarly, a study
of North Carolina counties during 1990 to 2003 demonstrated
that when county revenue decreased in any given year, the
following year led to a statistically significant increase in
traffic tickets issued. 127
The use of fines to generate revenue is not limited to traffic
violations. Cities also fined individuals for staying at a
boyfriend’s house, having tall grass, wearing saggy pants, or
failing to sign up for a designated trash collection service. 128
Reports show that as states have begun to put restrictions on
revenue attributable to traffic fines, municipalities have
apparently adopted more aggressive use of non-traffic fines.129
123. DEVUONO-POWELL ET AL., supra note 74, at 16.
124. Jack Hitt, Police Shootings Won’t Stop Unless We Also Stop Shaking Down
Black People, MOTHERJONES.COM (Sept.–Oct. 2015), http://www.motherjones.com/
politics/2015/07/police-shootings-traffic-stops-excessive-fines
[https://perma.cc/
TX9A-29FZ] (quoting William Maurer, an attorney with the Institute for Justice).
125. Whitney Benns & Blake Strode, Debtors’ Prison in 21st-Century America,
ATLANTIC (Feb. 23, 2016), http://www.theatlantic.com/business/archive/2016/
02/debtors-prison/462378/ [https://perma.cc/4BYF-ZKT2].
126. Alexa Corcoran, A Handful of Colorado Towns Rely Heavily on Money
from Traffic Tickets, ROCKY MOUNTAIN PBS NEWS (Oct. 12, 2016, 10:04 PM),
http://www.rmpbs.org/blogs/news/a-handful-of-colorado-towns-rely-heavily-onmoney-from-traffic-tickets/ [https://perma.cc/EEM7-D89L].
127. Thomas A. Garrett & Gary A. Wagner, Red Ink in the Rearview Mirror:
Local Fiscal Conditions and the Issuance of Traffic Tickets, 52 J.L. & ECON. 71, 72
(2009) (discussed in COUNCIL OF ECON. ADVISERS, supra note 2, at 2).
128. Ryan J. Reilly & Mariah Stewart, Fleece Force: How Police and Courts
Around Ferguson Bully Residents and Collect Millions, HUFFINGTON POST (Mar. 26,
2015, 7:33 AM), http://www.huffingtonpost.com/2015/03/26/st-louis-county-municipalcourts_n_6896550.html [https://perma.cc/DFX3-DY5P] (staying at a boyfriend’s house is
viewed as violation of an occupancy permit).
129. Monica Davey, Lawsuit Accuses Missouri City of Fining Homeowners to
Raise Revenue, N.Y. TIMES (Nov. 4, 2015), http://www.nytimes.com/2015/11/05/
us/lawsuit-accuses-missouri-city-of-fining-homeowners-to-raise-

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For example, Pagedale and Frontenac, Missouri, saw increases
in non-traffic arrests of 495 percent and 364 percent,
respectively, following state-imposed caps on traffic-ticket
revenues. 130 In November 2015, a civil rights class action
complaint was filed against the City of Pagedale claiming that
it used its “code enforcement and municipal court[s]” as
“revenue-generating machines” that “violate[] the Due Process
and Excessive Fines Clauses of the U.S. Constitution.” 131
Additionally, municipalities are increasingly using new
technologies to become more aggressive in collecting fines. For
example, in 2011, 70 percent of agencies reported that they had
access to electronic license plate readers. 132 Port Arthur, Texas,
is one of many municipalities using the readers to stop and
arrest motorists with unpaid traffic fines. 133 Before the
readers, officers would apprehend drivers with outstanding
fines only if the drivers were stopped for other offenses. 134 The
readers now allow police to stop drivers based solely on
outstanding fines. 135 Drivers are often told to “pay up or go to
jail.” 136 With the adoption of the readers, annual ticket revenue
in Port Arthur surged from $1.2 million to $2.1 million. 137
Additionally, Texas has enacted legislation permitting the use
of credit and debit card machines in police cars so that police

revenue.html?ref=us&_r=1 [https://perma.cc/Q6PC-9XVB]; Jennifer S. Mann,
Municipalities Ticket for Trees and Toys, As Traffic Revenue Declines, ST. LOUIS
POST-DISPATCH (May 24, 2015), http://www.stltoday.com/news/local/crime-andcourts/municipalities-ticket-for-trees-and-toys-as-traffic-revenuedeclines/article_42739be7-afd1-5f66-b325-e1f654ba9625.html
[https://perma.cc/5WNG-2ZR3].
130. Hitt, supra note 124.
131. Civil Rights Class Action Complaint ¶ I, Whitner v. City of Pagedale, No.
14:15-cv-01655, 2016 WL 915303 (E.D. Mo. Nov. 4, 2015), http://ij.org/wpcontent/uploads/2015/11/ECF-1-Complaint-FILE-STAMPED-11.04.15.pdf
[https://perma.cc/DP4Q-YJCX].
132. Alex Campbell & Kendall Taggart, The Ticket Machine, BUZZFEED (Jan.
26,
2016,
8:19
PM),
http://www.buzzfeed.com/alexcampbell/the-ticketmachine#.kiN209Eaxq [https://perma.cc/74NM-SGXU] (citing POLICE EXEC.
RESEARCH FORUM, HOW ARE INNOVATIONS IN TECHNOLOGY TRANSFORMING
POLICING? 1 (2012), http://www.policeforum.org/assets/docs/Critical_Issues_
Series/how%20are%20innovations%20in%20technology%20transforming%20polici
ng%202012.pdf [https://perma.cc/DD44-6UG7]).
133. Campbell & Taggart, supra note 132.
134. Id.
135. Id.
136. Id.
137. Id.

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can collect fines. 138 This has led to criticism that police are
becoming “mobile debt collectors.” 139
b. Abusive Use of Fees
Fines are often just the tip of the monetary obligation
iceberg. The fees assessed to defendants, especially for
misdemeanors, often exceed the penalties for the underlying
offense. 140 For example, California adds $390 in statutory fees
and assessments to the $100 fine for a minor traffic
violation. 141 Moreover, if the defendant fails to appear in court
or pay the charge, an additional $325 is added, turning the
initial charge of $100 into an $815 obligation. 142 Florida’s
system of using fees to fund its courts has been described as
“cash register justice.” 143 From 1996 to 2007, Florida added
more than twenty categories of fees. 144
Over the last several years, fees have escalated even more
than fines. 145 While fees for criminal defendants date back to
1846, they have now grown significantly both in number (new
fees) and in dollar amount. 146 Since 2010, all but two states
and the District of Columbia have increased their criminal
138. TEX. CODE CRIM. PROC. ANN. ART. 103.0025 (b)(2) (West Supp. 2016).
139. Dave Maass, “No Cost” License Plate Readers Are Turning Texas Police
into Mobile Debt Collectors and Data Miners, ELECTRONIC FRONTIER FOUND.:
DEEPLINKS (Jan. 26, 2016), https://www.eff.org/deeplinks/2016/01/no-cost-licenseplate-readers-are-turning-texas-police-mobile-debt-collectors-and
[https://perma.cc/H2VB-Z85R]; Debra Cassens Weiss, Texas Police Turn into
‘Mobile Debt Collectors’ with License-Reader Program, A.B.A. J. (Feb. 01, 2016,
06:15
AM),
http://www.abajournal.com/news/article/texas_police_turn_into_
mobile_debt_collectors_with_license_reader_program
[https://perma.cc/H9YWVGKK].
140. HUMAN RIGHTS WATCH, supra note 5, at 14.
141. BENDER ET AL., supra note 95, at 9.
142. Id. at 10. See also Hitt, supra note 124 (describing how government
agencies can add fees to fines, converting a $35 fine to a monetary charge of $235).
143. REBEKAH DILLER, BRENNAN CTR. FOR JUSTICE, THE HIDDEN COSTS OF
FLORIDA’S CRIMINAL JUSTICE FEES 1 (2010), https://www.brennancenter.org/
sites/default/files/legacy/Justice/FloridaF&F.pdf?nocdn=1 [https://perma.cc/25D9WUK7].
144. Id. at 1. For more examples of the imposition of multiple fees in
jurisdictions, see PEPIN, supra note 3, at 6–8.
145. Harris et al., supra note 108, at 1769–71; Pat O’Malley, Politicizing the
Case for Fines, 10 CRIMINOLOGY & PUB. POL’Y 547, 548 (2011).
146. Eisen, supra note 73, at 319, 322; Tanzina Vega, Costly Prison Fees are
Putting Inmates Deep in Debt, CNN: MONEY (Sept. 18, 2015),
http://money.cnn.com/2015/09/18/news/economy/prison-fees-inmates-debt/
index.html [https://perma.cc/85HS-NQAW] (quoting Lauren-Brooke Eisen).

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justice fees. 147 Although policies have been developed to reduce
discretion in sentencing, policies setting forth restrictions on
legislatures and judges in setting and applying fees are rare.148
Unfortunately, “the decision to raise or create new user fees is
rarely made with much deliberation or thought about the
consequences.” 149
Fees are now imposed in many jurisdictions at every stage
in the process. 150 For example, at the pre-conviction stage,
defendants may be billed for the issuance of a warrant, lab
testing, and monitoring devices. 151 At least forty-three states
assess application fees for public defender services. 152 At
sentencing, charges may include court costs, and mandatory
fees imposed by the state, as well as discretionary fees. 153
Additionally, for those incarcerated, at least forty-three states
charge for room and board, and thirty-five states charge for
medical care. 154 Inmates may be charged for services provided
including toilet paper, uniforms, and telephone calls. 155 Fees
for prisoners have increased dramatically, as, in 1991, about
one-quarter had fees at the end of their term while currently
147. State-by-State Court Fees, NPR (May 19, 2014, 4:02 PM),
http://www.npr.org/2014/05/19/312455680/state-by-state-court-fees
[https://perma.cc/9JDR-FX8T].
148. Eaglin, supra note 71, at 1856.
149. ALICIA BANNON, MITALI NAGRECHA & REBEKAH DILLER, BRENNAN CTR.
FOR JUSTICE, CRIMINAL JUSTICE DEBT: A BARRIER TO REENTRY 4 (2010),
http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20
FINAL.pdf [https://perma.cc/QF87-28LA].
150. Lauren-Brooke Eisen & Jessica Eaglin, Poverty, Incarceration, and
Criminal Justice Debt, TALK POVERTY: JUSTICE (Dec. 2, 2014, 8:00 AM),
http://talkpoverty.org/2014/12/02/criminal-justice-debt/
[https://perma.cc/BLC4Q3BE].
151. RAM SUBRAMANIAN ET AL., VERA INST. OF JUSTICE, INCARCERATION’S
FRONT DOOR: THE MISUSE OF JAILS IN AMERICA 50 n.50 (2015),
http://www.vera.org/sites/default/files/resources/downloads/incarcerations-frontdoor-report.pdf [https://perma.cc/F4XY-APN2].
152. Joseph Shapiro, As Court Fees Rise, The Poor Are Paying the Price, NPR
(May 19, 2014, 4:02 PM), http://www.npr.org/2014/05/19/312158516/increasingcourt-fees-punish-the-poor [https://perma.cc/U9NT-B6EJ]; State-by-State Court
Fees, supra note 147.
153. Wayne A. Logan & Ronald F. Wright, Mercenary Criminal Justice, 2014
U. ILL. L. REV. 1175, 1190–91.
154. EISEN, supra note 37, at 4. The Brennan Center has compiled an
interactive map that reflects state-by-state charges for room and board or medical
fees. See BRENNAN CTR. FOR JUSTICE, IS CHARGING INMATES TO STAY IN PRISON
SMART POLICY, https://www.brennancenter.org/states-pay-stay-charges (last
visited Feb. 4, 2017) [https://perma.cc/5ME8-KBSH].
155. Eisen & Eaglin, supra note 150.

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more than three-quarters have fees when leaving prison. 156
Additionally, at least forty-four states impose charges for
probation and parole services, and forty-nine states impose fees
for monitoring devices. 157 From 1999 to 2009, the number of
individuals under electronic monitoring increased from
approximately 75,000 to over 200,000. 158 Often, municipalities
use fees as a method of funding non-criminal justice
programs. 159
Decriminalization of misdemeanors can also result in
increased fees, as alternatives to incarceration include
“supervisory, educational, or treatment” requirements and, in
turn, defendants are charged fees for these services. 160
Defendants in alternative programs are often charged
participation fees. For example, probationers in Rutherford
County are charged a fee of $132 to participate in trash pickup
as community service. 161 Similarly, Pennsylvania law requires
defendants pay at least $60 to be eligible for parole or
probation. 162
2. Outsourcing to Private Companies
Unfortunately, collection abuses are not limited to
governmental entities involved in the criminal justice system.
The outsourcing of traditional governmental functions to
private for-profit companies has created heightened concerns
regarding the abusive collection of criminal justice debt.
Outsourcing is apparent in the growing use of private firms for

156. Eaglin, supra note 71, at 1852.
157. Shapiro, supra note 152; State-by-State Court Fees, supra note 147.
158. Greg Beato, The Lighter Side of Electronic Monitoring, REASON (May 24,
2012),
https://reason.com/archives/2012/05/24/the-lighter-side-of-electronicmonitorin [https://perma.cc/EAN2-3J8Z].
159. PEPIN, supra note 3, at 6–8.
160. Natapoff, supra note 39, at 1086–87.
161. Kim Bellware, Judge Says You Can’t Lock Up People on Probation for Being
Poor, HUFFINGTON POST (Dec. 21, 2015, 7:59 PM), http://www.huffingtonpost.com/
entry/poverty-jailingMe-probation-rutherford-county_56785da5e4b06fa6887e31e1
[https://perma.cc/525L-NL39].
162. 18 PA. STAT. AND CONS. STAT. ANN. § 11.1101 (West 2015). See also
BANNON ET AL., supra note 149, at 20 (discussing the statute); Daniel Craig,
WATCH: Pennsylvania Parole Fee Scrutinized by John Oliver, PHILLY VOICE
(Nov. 10, 2015), http://www.phillyvoice.com/watch-pa-parole-fee-scrutinized-johnoliver/ [https://perma.cc/S9BX-6ZYN] (discussing how John Oliver highlighted the
provision in an episode of HBO’s Last Week Tonight).

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prisons, probation, and collection. 163 Additionally, private
businesses are often used to provide services such as medical
care and telephone to incarcerated individuals. 164 Moreover,
the vast majority of states allow private bail companies. 165
More than 1,000 courts in at least twelve states use private
probation companies to monitor misdemeanor defendants. 166
The probation companies are attractive to cash-strapped
municipalities, as they often provide cities an “‘offender-funded’
business model.” 167 Under this zero-cost solution for
municipalities, probation companies receive all of their income
from fees recovered from probationers. 168
Often the fees charged by the companies are not regulated,
leading to abuses. 169 Concerns about private probation
companies have been the subject of litigation throughout the
country. 170 Additionally, proposed federal legislation threatens
163. Beckett & Harris, supra note 36, at 513.
164. HARRIS, supra note 57, at 10. $2.9 billion is the estimated annual
payment to private companies for food and telephone services for the incarcerated.
PETER WAGNER & BERNADETTE RABUY, PRISON POLICY INITIATIVE, FOLLOWING
THE
MONEY
OF
MASS
INCARCERATION
(Jan.
25,
2017),
https://www.prisonpolicy.org/reports/money.html [https://perma.cc/3RMP-D25H].
165. THOMAS H. COHEN & BRIAN A. REAVES, U.S. DEP’T OF JUSTICE, BUREAU
OF JUSTICE STATISTICS, NCJ 214994, PRETRIAL RELEASE OF FELONY
DEFENDANTS IN STATE COURTS 4 (2007), http://www.bjs.gov/content/pub/
pdf/prfdsc.pdf [https://perma.cc/FP45-JDYE] (describing use of commercial bail
agents in forty-six states). Private bail companies typically charge defendants a
fee equal to 10 percent of the bail amount and may require collateral from
defendants. Id. In return for the fee, the bail company will post a
surety/appearance bond. Id. Annually, bail companies receive $1.4 billion in
nonrefundable fees. WAGNER & RABUY, supra note 164.
166. HUMAN RIGHTS WATCH, supra note 5, at 1, 12 n.3 (listing Alabama,
Colorado, Florida, Georgia, Idaho, Michigan, Mississippi, Missouri, Montana,
Tennessee, Utah, and Washington, and stating that these states are not
“necessarily an exhaustive list of all states where the industry exists”).
167. Id. at 15.
168. Id.
169. DEVUONO-POWELL ET AL., supra note 74, at 15.
170. See, e.g., Class Action Complaint, Rodriguez v. Providence Cmty. Corr.,
Inc., No. 3:15-cv-01048 (M.D. Tenn. Oct. 1, 2015), http://equaljusticeunderlaw.org/
wp/wp-content/uploads/2015/10/complaint_file_stamped.pdf
[https://perma.cc/
A2QR-7Z48] [hereinafter PCC Complaint]; Complaint, Reynolds v. Judicial Corr.
Servs., Inc., No. 2:15-cv-00161-MHT-CSC (M.D. Ala. Mar. 12, 2015),
https://www.splcenter.org/sites/default/files/d6_legacy_files/downloads/case/1_-_
complaint.pdf [https://perma.cc/M6AR-6GWV]; Complaint, Thompson v. Dekalb
Cty., No. 1:15-mi-99999-UNA (N.D. Ga. Jan. 29, 2015), https://www.aclu.org/sites/
default/files/assets/2015.01.29_filed_thompson_complaint.pdf
[https://perma.cc/
JZY7-PEST]; First Amended Class Action Complaint, Mitchell v. City of
Montgomery, No. 2:14-cv-00186-MEF-CSC (M.D. Ala. May 23, 2014),
http://equaljusticeunderlaw.org/wp/wp-content/uploads/2014/07/Complaint.pdf

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to reduce federal funding for states and municipalities that rely
on private probation companies. 171
Probationers’ experiences in Kentucky reflect some of the
concerns over the use of private probation companies, where
they are subject to monitoring fees only if they live in counties
serviced by private companies. 172 The firms operate without
any written agreements or any supervision by the state.173
Although counties do not keep records of people under private
probation, Kentucky Alternative Programs is suspected to be
the state’s largest private probation company, monitoring
about 8,000 defendants in thirty-eight counties. 174 Concerns
have surfaced over contributions by its officers and directors to
judicial campaigns as well as the failure to verify whether the
companies are complying with court rules requiring that fees
be adjusted based on ability to pay. 175
Sentinel Offender Services, a private probation company,
involved in the Barrett case described in the Introduction, has
been accused of requiring probationers to take drug tests even
when the courts have not ordered the tests. 176 A recent lawsuit
suggests that Sentinel required the non-court ordered tests as
a way of collecting additional fees. 177
Similar concerns exist in Tennessee, where a federal
corruption lawsuit has been filed against Rutherford County
and Providence Community Corrections (PCC), a private
probation company. 178 The complaint alleges that the county
[https://perma.cc/D92P-VSAA]; Sentinel Offender Servs., LLC v. Glover, 766
S.E.2d 456, 460 (Ga. 2014).
171. End of Debtor’s Prison Act of 2017, H.R. 1724, 115th Cong. (2017).
172. James McNair, Inside Kentucky’s Unregulated Private Probation Industry,
KY. CTR. FOR INVESTIGATIVE REPORTING (Jan. 20, 2016), http://kycir.org/2016/01/
20/inside-kentuckys-unregulated-private-probation-industry/# [https://perma.cc/
3UBK-XB7H].
173. Id. (stating that “[n]o state agency monitors the monitors”).
174. Id.
175. Id.
176. Kate Brumback, Lawsuit: Private Probation Company Forced Illegal Drug
Tests, WASH. TIMES (Feb. 17, 2016), http://www.washingtontimes.com/news/
2016/feb/17/lawsuit-private-probation-company-forced-illegal-d/ [https://perma.cc/
9R7D-MAF9].
177. Complaint ¶ 1, Luse v. Sentinel Offender Servs., LLC, No. 2:16-mi-99999UNA (N.D. Ga. Feb. 17, 2016), https://www.schr.org/files/post/files/LUSE%
20v%20%20SENTINEL%20OFFENDER%20SERVICES.pdf
[https://perma.cc/
8U6G-JRG8].
178. PCC Complaint, supra note 170. See Alysia Santo, How to Fight ModernDay Debtors’ Prisons? Sue the Courts., MARSHALL PROJECT (Oct. 1, 2015, 2:45
PM),
https://www.themarshallproject.org/2015/10/01/how-to-fight-modern-day-

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and PCC have operated a racketeering enterprise to extort
money from indigent individuals by threatening incarceration
for failure to pay criminal justice debt. 179 PCC’s revenues are
based solely on fees collected from individuals on probation.180
PCC allegedly added monthly charges, fees for drug tests
administered at PCC’s discretion (even if the underlying
offense was not drug-related), pictures, and classes.181
Probationers were allegedly required to sign a document that
required them, among other things, to allow warrantless
searches of their homes, vehicles, and persons by PCC, to obey
orders of PCC officers, and to pay all PCC fees. 182 PCC
allegedly told probationers that failure to comply with any of
these requirements could result in revocation of probation,
arrest, or incarceration for months. 183 PCC failed to inform
probationers that they had rights to have payments modified
and could not be incarcerated without an ability-to-pay
determination. 184 PCC allegedly even discouraged indigency
waivers and purportedly told probationers that they would
have to pay $25 to seek indigency relief. 185 Additionally, PCC
reportedly applied payments to its fees first rather than court
debts, so that typically the court debt was only minimally
reduced and probationers would remain under probation due to
outstanding court debt. 186
Another area where private companies offer free services
in exchange for the right to collect fees from the public is the
use of high-speed cameras for reading license plates. Vigilant
Solutions, Inc. provides “no cost” license plate readers to Texas
law enforcement and receives its revenues from a 25 percent
fee added to defendants’ fines. 187 Police use the readers to
identify drivers with outstanding criminal justice debt. Officers
give drivers the option to pay the outstanding debt and
Vigilant Solution’s fee by credit or debit card, or face arrest. 188
debtors-prisons-sue-the-courts [https://perma.cc/BQN5-QZSG].
179. PCC Complaint, supra note 170, at 1–3.
180. Id. ¶¶ 1, 16, 18.
181. Id. ¶ 20.
182. Id. ¶ 21.
183. Id. ¶¶ 21, 24.
184. Id. ¶¶ 29, 36.
185. Id. ¶ 36.
186. Id. ¶¶ 26–27.
187. Weiss, supra note 139.
188. Id. (describing Vigilant Solutions’s role in Kyle, Texas).

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Failure to pay can also result in towing and impound fees. 189
3. Failure to Take into Account Ability to Pay
A significant problem shared by bail, fines, and fees is that
they are often imposed without taking into account a
defendant’s ability to pay, leaving those unable to pay with the
threat of incarceration. 190 As a result, while mass incarceration
has been associated with an increase in criminal justice debt,
an increase in criminal justice debt has also led to more
incarceration as individuals are incarcerated not for their
underlying offenses, but for their inability to pay criminal
justice debt. 191
a. Incarceration for Inability to Pay Bail
Although monetary bail was initially set up as a way of
allowing individuals to be released before trial, in modern
times, it has become a way of locking up indigent individuals
and coercing them to accept plea bargains. 192 According to one
report “[m]oney, or the lack thereof, is now the most important
factor in determining whether someone is held in jail
pretrial.” 193 Since 1990, the use of monetary bail has increased
dramatically. 194 For example, a Bureau of Justice Statistics
report found that the use of bail for felony defendants in large
urban counties increased from approximately 50 percent in
1990 to over 70 percent in 2009. 195 Additionally, between 1992
189. Id.
190. COUNCIL OF ECON. ADVISERS, supra note 2, at 1; Furman & Black, supra
note 51.
191. EISEN, CHARGING INMATES, supra note 37, at 2 (describing “how current
practices of charging inmates perpetuates mass incarceration”).
192. ROBERT C. BORUCHOWITZ, MALIA N. BRINK & MAUREEN DIMINO, NAT’L
ASS’N OF CRIMINAL DEF. LAWYERS, MINOR CRIMES, MASSIVE WASTE: THE
TERRIBLE TOLL OF AMERICA’S BROKEN MISDEMEANOR COURTS 8, 19–20 (2009);
Pinto, supra note 63. A complete history of the development of the bail system is
beyond the scope of this Article. For more detailed information, see TIMOTHY R.
SCHNACKE, NAT’L INST. OF CORR., U.S. DEP’T OF JUSTICE, FUNDAMENTALS OF BAIL
21–44
(2014),
http://static.nicic.gov/UserShared/2014-11-05_final_bail_
fundamentals_september_8,_2014.pdf [https://perma.cc/8QT6-JAJ3].
193. SUBRAMANIAN ET AL., supra note 151, at 32.
194. COUNCIL OF ECON. ADVISERS, supra note 90, at 49 (asserting that “the use
of bail bonds has also increased by more than 130 percent over the past two
decades”).
195. COUNCIL OF ECON. ADVISERS, supra note 2, at 6.

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and 2009, judges increased bail in felony cases by more than 40
percent. 196 The growth in pretrial detention has surpassed the
growth of imprisonment as the 59 percent growth rate in
“unconvicted” individuals in jail from 1996 to 2014 nearly
doubled the 32 percent growth rate for prison inmates. 197 The
jailing of unconvicted defendants accounts for 99 percent of the
increase in jail inmates over the last fifteen years. 198 More
than 50 percent of unconvicted inmates remain in jail for at
least thirty days. 199 Many plead guilty to a petty offense simply
to get out of jail and take advantage of time served. 200 As a
result, they wind up with criminal records. 201 Additionally,
many spend more time in jail awaiting trial than the maximum
sentence they could receive for their offenses. 202 As a report by
the VERA Institute suggests, “[t]hese cases, in particular, turn
our ideals about justice upside down. . . . [T]he system punishes
these individuals while they are presumed to be innocent, and
then releases them once they are found guilty.” 203
Moreover, studies have also found that pretrial detention
adversely impacts both plea bargaining and sentencing.
Defendants in jail are less likely to help with their defense by
securing witnesses or evidence. 204 They are also more likely to
accept a plea bargain with a longer sentence. Additionally, they
are more likely to be ultimately sentenced to incarceration and
more likely to receive a longer prison term than those who can
pay bail. 205 A study of over 153,000 defendants jailed in
Kentucky between July 2009 and June 2010 found that
“[d]etained defendants are over four times more likely to be
sentenced to jail and over three times more likely to be

SUBRAMANIAN ET AL., supra note 151, at 29.
COUNCIL OF ECON. ADVISERS, supra note 2, at 7 & n.11.
Peter Wagner, Jails Matter. But Who is Listening?, PRISON POL’Y
INITIATIVE (Aug. 14, 2015), http://www.prisonpolicy.org/blog/2015/08/14/
jailsmatter/ [https://perma.cc/JD33-5F7Q].
199. Natapoff, supra note 109, at 1322.
200. Id. at 1322; Dewan, supra note 66.
201. Dewan, supra note 66.
202. SUBRAMANIAN ET AL., supra note 151, at 34; Dewan, supra note 66.
203. SUBRAMANIAN ET AL., supra note 151, at 34.
204. COUNCIL OF ECON. ADVISERS, supra note 2, at 8.
205. Id. (citing CHRISTOPHER T. LOWENKAMP, MARIE VANNOSTRAND &
ALEXANDER HOLSINGER, LAURA & JOHN ARNOLD FOUND., INVESTIGATING THE
IMPACT OF PRETRIAL DETENTION ON SENTENCING OUTCOMES (2013),
http://www.arnoldfoundation.org/wp-content/uploads/2014/02/LJAF_Report_statesentencing_FNL.pdf [https://perma.cc/L45K-4KLN]).
196.
197.
198.

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sentenced to prison than defendants who are released at some
point pending trial.” 206 Additionally, jail terms are almost three
times greater, and prison terms are more than two times longer
for defendants not released pretrial. 207 A New York study had
similar results reporting that “pretrial detention was the single
greatest predictor of conviction.” 208 The disparities are even
more significant for low-risk defendants. 209
Bail is typically set without a determination of ability to
pay. 210 The system of cash bail has been the subject of criticism
for almost one hundred years. 211 Calls for reform seek abolition
of cash bail programs. 212 New Jersey, for example, following a
constitutional amendment, enacted legislation, effective
January 1, 2017, to determine pretrial release using risk
assessment rather than money bail. 213 Additionally, lawsuits
have been filed questioning the constitutionality of certain cash
bail systems, including those that rely on fixed schedules that
fail to take into account ability to pay. 214 Bail should be based
206. LOWENKAMP ET AL., supra note 205, at 3.
207. Id.
208. Pinto, supra note 63.
209. LOWENKAMP ET AL., supra note 205, at 4.
210. COUNCIL OF ECON. ADVISERS, supra note 2, at 7; Furman & Black, supra
note 51.
211. Alexander Shalom, Bail Reform as a Mass Incarceration Reduction
Technique, 66 RUTGERS L. REV. 921, 923–24 (2014).
212. See, e.g., Press Release, Pretrial Justice Inst., New Ferguson-Inspired
Campaign Launches to End Cash Bail, Reduce Arrests, and Cut Pretrial
Detentions in 20 States by 2020 (Oct. 26, 2015), http://www.pretrial.org/newferguson-inspired-campaign-launches-to-end-cash-bail-reduce-arrests-and-cutpretrial-detentions-in-20-states-by-2020/ [https://perma.cc/LVZ4-V535].
213. See Robert Ramsey, New Bail Procedures—Criminal Justice Reform, 51
N.J. PRAC. SERIES, MUN. CT. PRAC. MANUAL § 9:3 (2016–2017 ed. 2016). The New
Jersey constitutional amendment was adopted in 2014. N.J. CONST. art. I, ¶11.
For a description of reforms in other jurisdictions, see Sara Dorn, New Jersey
Begins Overhaul of Bail System: Justice for All, CLEVELAND.COM (Jan. 18, 2017,
11:05 AM), http://www.cleveland.com/metro/index.ssf/2017/01/new_jersey_begins_
overhaul_of.html [https://perma.cc/2FP3-GTBQ].
214. See, e.g., Class Action Complaint at 1–2, Varden v. City of Clanton, No.
2:15-cv-00034- MHT-WC (M.D. Ala. Jan. 15, 2015). The DOJ filed a statement of
interest in Varden asserting that a fixed bail system that did not take into
account ability to pay was unconstitutional. Statement of Interest at 1, Varden v.
City of Clanton, No. 2:15-cv-00034-MHT-WC (M.D. Ala. Feb. 13, 2015),
http://www.justice.gov/file/340461/download
[https://perma.cc/HY3F-U386].
Subsequently, the City changed its bail policies and a settlement was reached in
the lawsuit. Jones v. City of Clanton, No. 2:15-cv34-MHT, 2015 WL 5387219, at *1
(M.D. Ala. Sept. 14, 2015). For a description of the lawsuits filed by Equal Justice
Under Law seeking to end cash bail systems, see Ending the American Money
Bail System, EQUAL JUSTICE UNDER LAW, http://equaljusticeunderlaw.org/

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on risk to the public and the probability of appearing at court,
rather than as a method of punishing or raising revenue. 215
b. Arrest and Incarceration for Inability to Pay
Fees and Fines
Just as the inability to pay bail results in incarceration,
inability to pay fees and fines can also lead to incarceration.
The failure to take into account ability to pay is especially
troublesome when the failure to pay results in arrest or loss of
liberty. 216 Incarceration under these circumstances often
violates constitutional, statutory, and rule provisions that
require an assessment of ability to pay. 217 For example, in
1983, the United States Supreme Court held that revoking
probation and incarcerating an individual without taking into
account ability to pay and alternative sentencing “would be
contrary to the fundamental fairness required by the
Fourteenth Amendment.” 218
While courts are generally required to take into account
ability to pay before incarcerating, many do not. 219 Even when
ability-to-pay hearings are held, courts often lack guidance on
the standards to apply and when to apply them, leading to
conflicting results. 220 Additionally, individuals are typically not
represented by counsel at such hearings. 221 In these situations,
wp/current-cases/ending-the-american-money-bail-system (last visited Apr. 3,
2017) [https://perma.cc/4VUM-7YLF]. See also Santo, supra note 178 (describing
how the lawsuits have led to municipalities in Alabama, Missouri, Mississippi,
and Louisiana ending cash bail for misdemeanors and traffic violations).
215. SCHNACKE, supra note 192, at 64–65.
216. COUNCIL OF ECON. ADVISERS, supra note 2, at 1; Furman & Black, supra
note 51.
217. Sobol, Charging the Poor, supra note 4, at 504–07.
218. Bearden v. Georgia, 461 U.S. 660, 672–73 (1983). For a more detailed
discussion of Bearden and related cases, see Sobol, Charging the Poor, supra note
4, at 504–07.
219. Sobol, Charging the Poor, supra note 4, at 513.
220. Eaglin, supra, note 71, at 1854–55 (describing how states fail to “provide
meaningful standards or methodologies for ability-to-pay determinations”).
221. Sobol, Charging the Poor, supra note 4, at 514; See, e.g., AM. CIVIL
LIBERTIES UNION OF N.H., DEBTORS’ PRISONS IN NEW HAMPSHIRE 1–2 (2015),
http://aclu-nh.org/wp-content/uploads/2015/09/Final-ACLU-Debtors-PrisonsReport-9.23.15.pdf [https://perma.cc/3JCW-L6US] (finding that in 2013 New
Hampshire judges failed to conduct meaningful ability-to-pay hearings or provide
defendants with counsel when incarcerating nearly 150 defendants who were
unable to pay fines); AM. CIVIL LIBERTIES UNION OF TEX., NO EXIT, TEXAS:
MODERN-DAY DEBTORS’ PRISONS AND THE POVERTY TRAP 6–7 (2016),

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indigent defendants become trapped in modern-day debtors’
prisons. 222 Investigations and reports have described the
growing incidence and problems of modern-day debtors’
prisons. 223 Additionally, class-action lawsuits have been filed
alleging debtors’ prisons in municipalities throughout the
United States. 224
As a practical matter, efforts to incarcerate individuals for
failure to pay are often counterproductive, creating greater
expenses for municipalities than they ever recover in
collection. 225
4. Disproportionate Impact on Low-Income
Populations
It should come as no surprise that the imposition of
monetary charges without consideration of ability to pay
disproportionately impacts the poor. By their very nature, fixed
financial charges have a regressive effect on those with lower

https://www.aclutx.org/sites/default/files/no_exit_texas_-_modern-day_debtors_pri
sons_and_the_poverty_trap_11-2016.pdf [https://perma.cc/66JZ-M6JE] (finding
courts generally fail to conduct proper ability-to-pay hearings, to appoint counsel,
and to consider payment alternatives).
222. See Sobol, Charging the Poor, supra note 4 (describing the use of modernday debtors’ prisons to collect criminal justice debt and comparing them to
traditional debtor’s prisons in the eighteenth and nineteenth centuries).
223. See, e.g., AM. CIVIL LIBERTIES UNION OF NEB., Unequal Justice: Bail and
Modern Day Debtors’ Prisons in Nebraska (2016), https://www.aclunebraska.org/
sites/default/files/field_documents/unequal_justice_2016_12_13.pdf
[https://perma.cc/PVK7-ZCL6]; AM. CIVIL LIBERTIES UNION OF N.H., supra note
221; AM. CIVIL LIBERTIES UNION OF TEX., supra note 221; AM. CIVIL LIBERTIES
UNION OF WASH. & COLUMBIA LEGAL SERVS., Modern-Day Debtors’ Prisons: The
Ways Court-Imposed Debts Punish People for Being Poor (2014), https://www.acluwa.org/sites/default/files/media-legacy/attachments/Modern%20Day%20Debtor%
27s%20Prison%20Final%20%283%29.pdf [https://perma.cc/7FDN-ECC8].
224. See Joseph Shapiro, Lawsuits Target ‘Debtors’ Prisons’ Across the Country,
NPR (Oct. 21, 2015, 4:36 PM), http://www.npr.org/2015/10/21/450546542/lawsuitstarget-debtors-prisons-across-the-country [https://perma.cc/SNF2-EFLD]. For a
description of the lawsuits filed by Equal Justice Under Law alleging debtors’
prisons in Louisiana, Mississippi, Missouri, and Alabama, see EQUAL JUSTICE
UNDER LAW, Shutting Down Debtors’ Prison, http://equaljusticeunderlaw.org/
wp/current-cases/ending-debtors-prisons/
(last
visited
Apr.
3,
2017)
[https://perma.cc/4LMV-WWVH].
225. Eaglin, supra, note 71, at 1852. See, e.g., AM. CIVIL LIBERTIES UNION OF
N.H., supra note 221, at 7 (finding that in 2013 the costs of incarcerating
defendants who were unable to pay fines was approximately $167,000 and the
state failed to collect nearly $76,000 in unpaid fines).

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income levels. 226 Revenue generation through fines and fees
also tends to be greater in poorer municipalities, as they
generally have fewer available income resources than wealthier
cities. 227 Analysis of reports from Oakland, California reflects
that the police disproportionately use automatic license plate
readers in lower-income neighborhoods. 228 Additionally, an
alarming trend is the criminalization of poverty, as certain
offenses, such as homelessness, apply only to those who lack
financial resources. 229
Those unable to pay initial monetary amounts often face
additional financial charges, referred to by critics as poverty
penalties as the additional charges would not exist if payment
was made up front. These penalties can take the form of
interest, late payments, installment plan charges, and
collection fees. 230 A study of fifteen states with the highest
prison populations found that fourteen of the states used
poverty penalties. 231 At least nine of these states had
municipalities that assessed fees for installment plans. 232
Washington State imposes a statutory interest fee of 12 percent
and annual collection charges of $100 per year. 233 In some
jurisdictions, unpaid criminal debt obligations are referred to
226. COUNCIL OF ECON. ADVISERS, supra note 2, at 1.
227. Benns & Strode, supra note 125.
228. Jeremy Gillula & David Maass, What You Can Learn from Oakland’s Raw
ALPR Data, ELECTRONIC FRONTIER FOUND.: DEEPLINKS (Jan. 21, 2015),
https://www.eff.org/deeplinks/2015/01/what-we-learned-oakland-raw-alpr-data
[https://perma.cc/622J-S8NG].
229. See, e.g., TONY ROBINSON & ALLISON SICKLES, NO RIGHT TO REST:
CRIMINALIZING HOMELESSNESS IN COLORADO (2015), http://www.cpr.org/sites/
default/files/homelessness-study.pdf [https://perma.cc/E3KD-4R7Q]. A detailed
analysis of the criminalization of poverty is beyond the scope of this Article. For
more information, see KAREN DOLAN & JODI L. CARR, INST. FOR POLICY STUDIES,
THE POOR GET PRISON: THE ALARMING SPREAD OF THE CRIMINALIZATION OF
POVERTY (2015), http://www.ips-dc.org/wp-content/uploads/2015/03/IPS-The-PoorGet-Prison-Final.pdf [https://perma.cc/9PKY-MFRJ]; Kaaryn Gustafson, The
Criminalization of Poverty, 99 J. CRIM. L. & CRIMINOLOGY 643 (2009) (discussing
criminalization of welfare recipients).
230. BANNON ET AL., supra note 149, at 1.
231. Id.
232. DILLER, supra note 143, at 15.
233. AM. CIVIL LIBERTIES UNION OF WASH. & COLUMBIA LEGAL SERVS., supra
note 223, at 4; WASH. REV. CODE § 10.82.090 (2015) (tying the interest rate to the
rate used for civil judgments). A procedure for seeking waiver of this interest does
exist. See Legal Financial Obligation (LFO), WASHINGTONLAWHELP.ORG,
http://www.washingtonlawhelp.org/issues/consumer-debt/legal-financialobligations-restitution-reduc-1 (last visited Apr. 3, 2017) [https://perma.cc/L2L3749A].

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private collection companies that impose additional fees of up
to 40 percent of the original debt. 234
Cash bail also has a disparate impact on indigent
defendants. While wealthier defendants have the ability to post
bail and in return receive a full refund when they appear in
court, poorer defendants are often unable to pay bail or wind
up using a bonding company and having to pay a nonrefundable charge of 10 to 15 percent of the bail. 235
Imposing monetary charges on inmates is especially severe
on the poor as more than 80 percent of jailed inmates are
indigent. 236 One study found that the average amount of fines
and fees incurred by those incarcerated exceeds $13,600. 237
This amount exceeds the annual income of more than twothirds of those in jail. 238 Unable to pay charges for medical
services, inmates often refuse medical treatment, resulting in
the spread of diseases to other prisoners, correctional
employees, and visitors. 239
The poor are also subject to “pay-only probations” in which
the only reason for the probation is the inability to pay the
criminal justice debt upfront. 240 Those who can pay are not
subject to supervision. 241 Most of the cases handled by private
probation companies are pay-only probation matters. 242
Lower income individuals often wind up in an endless cycle
of criminal justice debt facing the threat of arrest and
incarceration for failure to pay. 243 The fear of detention or
incarceration for failure to pay can cause people to avoid going

234. DILLER, supra note 143, at 21. See AM. CIVIL LIBERTIES UNION OF TEX.,
supra note 221, at 2 (describing how collection agencies in Texas can charge a fee
of 30 percent for collecting unpaid criminal justice debt).
235. COUNCIL OF ECON. ADVISERS, supra note 2, at 7.
236. EISEN, CHARGING INMATES, supra note 37, at 4. See Eisen, supra note 73,
at 340 (arguing that “it is unreasonable to require population whose debt to
society is already being paid by the sentences imposed, 80 percent of whom are
indigent, to chip in to foot the bill”).
237. DEVUONO-POWELL ET AL., supra note 74, at 9.
238. Id. at 11 (stating that “over two-thirds of those in jail reported incomes of
less than $12,000 per year”).
239. EISEN, CHARGING INMATES, supra note 37, at 4 (describing how the
release and detention of inmates who often are “double and triple bunked in a
cell” contribute to the transmission of illness).
240. Natapoff, supra note 39, at 1100.
241. Id.
242. Id.
243. HARRIS, supra note 57, at 3.

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to public places or seeking medical care or police help. 244 Some
defendants have admitted that, faced with the threat of arrest
or incarceration for criminal justice debt, they have even
committed crimes to obtain funds to repay criminal justice
debt. 245
Additionally, the collateral consequences on the poor
arising from criminal justice debt are severe. 246 Such
consequences include the inability to obtain financing, secure
employment, and pay for necessities. 247 Many states suspend
driver’s licenses for failure to pay criminal justice debt,
impacting the ability of individuals to obtain and maintain
employment. 248 One study found that over 40 percent of
individuals lost their jobs due to a suspension of their driver’s
licenses. 249
Texas’s Driver Responsibility Program, established in
2003, imposes annual fees on the driver’s license of those
convicted of certain traffic offenses and suspends licenses until
such fees are paid. 250 A report found that the program not only
negatively impacted families but also safety. 251 The program
244. Natapoff, supra note 39, at 1093–94.
245. See Jasmine Burnett, This New Documentary Features President Obama
and Real Conversations about our Justice System, BLAVITY (Oct. 3, 2015),
http://blavity.com/vices-new-documentary-fixing-the-system-featuring-presidentobama/ [https://perma.cc/T4WN-9AAN] (describing an interview where defendant
admitted to selling drugs to raise money to pay criminal justice debt due in
Pennsylvania). To view the entire documentary, see VICE NEWS, Fixing the
System: VICE on HBO Special Report (Full Episode), YOUTUBE (Dec. 12, 2016),
https://www.youtube.com/watch?v=QgJPYJ0Jn04 [https://perma.cc/F5YN-AXFT].
A survey in Alabama found that 17 percent of defendants admitted to committing
crimes to repay criminal justice debt. FOSTER COOK, JEFFERSON CTY.’S CMTY.
CORR. PROGRAM TREATMENT ALTERNATIVES FOR SAFER CMTYS., THE BURDEN OF
CRIMINAL JUSTICE DEBT IN ALABAMA: 2014 PARTICIPANT SELF-REPORT SURVEY 11
(2014),
http://media.al.com/opinion/other/The%20Burden%20of%20Criminal%
20Justice%20Debt%20in%20Alabama-%20Full%20Report.pdf
[https://perma.cc/
6JFT-XUF2].
246. HARRIS, supra note 57, at 3; Natapoff, supra note 39, at 1060, 1081.
247. HARRIS, supra note 57, at 3; Natapoff, supra note 39, at 1059, 1093.
248. ALEX BENDER ET AL., supra note 95, at 4 (describing how California has
over four million people, representing 17 percent of adults, with suspended
driver’s licenses); DILLER, supra note 143, at 20–21. (describing suspension of
driver’s licenses in Florida); Eisen & Eaglin, supra note 150.
249. ALEX BENDER ET. AL., supra note 95, at 7.
250. CRAIG ADAIR, TEX. CRIMINAL JUSTICE COALITION, THE DRIVER
RESPONSIBILITY PROGRAM: A TEXAS-SIZED FAILURE 1–3 (2013), www.texascjc.org/
system/files/publications/Driver%20Responsibility%20Program.pdf
[https://perma.cc/LQ3H-9AEL].
251. Id. at 1.

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left 1.3 million drivers with invalid licenses affecting their
ability to acquire insurance and “likely increas[ing] the number
of uninsured motorists on Texas roads.” 252 Moreover, the
program collected less than 50 percent of the anticipated
revenue. 253 Even the program’s author has now called for its
modification or repeal. 254
The impact of criminal justice debt falls not only on
defendants but also on their families and dependents. Often,
families face difficult choices between paying for criminal
justice debt and basic necessities. 255 One study found that
“[w]hile 63% of respondents reported that family members
were primarily responsible for covering conviction-related
costs, nearly half also reported that their families could not
afford to pay these fees and fines.” 256 Families that pay the
criminal justice debt of incarcerated family members suffer “a
double penalty,” as they no longer have the income of the
inmates and have to pay the fees related to incarceration. 257
Additionally, failure to timely pay criminal justice debt can be
classified as failure to comply with a probation or parole order
resulting in loss of federal benefits, including “food stamps,
housing assistance, and Supplemental Security Income for
seniors and people with disabilities.” 258
While decriminalization efforts to change misdemeanors
into fine-only or non-jailable offenses allow individuals who can
afford the fines or fees to attend incarceration-alternative
treatment programs the ability to escape the system, it often
leaves indigent defendants trapped in the system. 259
Unfortunately, these fine-only misdemeanors have many of the
same collateral consequences associated with jailable offenses,
including the impact on employment and housing. 260 Moreover,
decriminalization efforts often result in fewer procedural
safeguards than jailable offenses. For example, fine-only or

Id.
Id.
Id.
DEVUONO-POWELL ET AL., supra note 74, at 30.
Id. at 13.
Lauren-Brooke Eisen, Prisons Shouldn’t Create Debtors: Column, USA
TODAY (June 5, 2015), http://www.usatoday.com/story/opinion/2015/06/05/johnniemelton-incarceration-fees-column/28407981 [https://perma.cc/9YQ6-V6YS].
258. DEVUONO-POWELL ET AL., supra note 74, at 25.
259. Natapoff, supra note 39, at 1097.
260. Id. at 1091–93.
252.
253.
254.
255.
256.
257.

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non-jailable misdemeanors eliminate the constitutional
requirement to provide counsel for defendants. 261 Indigent
defendants without the benefit of a lawyer may receive fines
that they do not have the ability to pay, and failure to pay may,
in turn, lead to incarceration. 262
5. Discriminatory Impact on Minorities
The criminal justice debt problem is especially severe for
minorities, given the relative lack of wealth and savings
available to many minorities. 263 For example, a 2013 report
found that the median net worth of white households
($141,900) was nearly thirteen times the median number for
black households ($11,000) and more than ten times the
median number for Hispanic households ($13,700). 264
Additionally, nearly 25 percent of black households have less
than $5 in savings. 265 As a result, minorities are especially
vulnerable to debt issues. The inability to pay consumer debts
such as electricity bills or car loans can result in higher
interest rates and penalties as well as disconnection of utilities
or repossession of cars. 266 The inability to pay criminal justice
debt can lead to suspension of a driver’s license, arrest, and
incarceration. 267
Monetary sanctions not only have a regressive effect on the
261. Id. at 1058–59.
262. Id. at 1059, 1081.
263. Paul Kiel, Debt and the Racial Wealth Gap, N.Y. TIMES (Dec. 31, 2015),
http://www.nytimes.com/2016/01/03/opinion/debt-and-the-racial-wealthgap.html?_r=0 [https://perma.cc/D7XK-BF4S].
264. Rakesh Kochhar & Richard Fry, Wealth Inequality Has Widened Along
Racial, Ethnic Lines Since End Of Great Recession, PEW RESEARCH CENTER (Dec.
12, 2014), http://www.pewresearch.org/fact-tank/2014/12/12/racial-wealth-gapsgreat-recession/ [https://perma.cc/GKK6-KMAE].
265. Kiel, supra note 263. A discussion of the differences in savings rates
between racial groups is beyond the scope of this Article. For more information
about savings rates, see PEW CHARITABLE TRUSTS, THE ROLE OF EMERGENCY
SAVINGS IN FAMILY FINANCIAL SECURITY: WHAT RESOURCES DO FAMILIES HAVE
FOR
FINANCIAL EMERGENCIES (Nov. 2015), http://www.pewtrusts.org/~/
media/assets/2015/11/emergency-savings-report-2_artfinal.pdf [https://perma.cc/
Q8TT-CGFG].
266. Kiel, supra note 263.
267. Id. Similarly, data reflects that debt collection lawsuits are more likely in
African-American neighborhoods than white neighborhoods. Paul Kiel & Annie
Waldman, The Color of Debt: How Collection Suits Squeeze Black Neighborhoods,
PROPUBLICA (Oct. 8, 2015), https://www.propublica.org/article/debt-collectionlawsuits-squeeze-black-neighborhoods [https://perma.cc/R26V-ZJ4K].

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poor, but their imposition often reflects discrimination against
minorities. Discretion afforded to law enforcement officers and
judicial
authorities
provides
opportunities
for
268
Even controlling for income levels, evidence
discrimination.
exists that racial discrimination occurs in the detention, arrest,
and incarceration of minorities. As such, minorities face
discrimination when criminal justice debt arising from arrest
and incarceration is imposed. 269
Racial discrimination is a concern in the imposition of bail
as reports indicate that African-Americans “and Latinos
generally suffer worse bail outcomes due to the broad
discretion and implicit bias in bail decisions.” 270 For example, a
study found that judges in two Texas counties set higher bail
levels for African-Americans than whites, “even when
controlling for offense type and defendant characteristics.”271
The study “suggest[s] that judges value freedom significantly
less for blacks than whites in Harris county, and . . . [in] Dallas
county.” 272 Similarly, a report from Nebraska found that the
average bond amount for “Black[s], Hispanic[s], or Native
American[s] . . . [was] $14,572 more than the average bond for
a nonviolent offense and $13,109 more for a violent offense.” 273
Similarly, racial disparities are well-documented for traffic
stops, arrests, and incarceration. “Nationally, AfricanAmericans comprise 13 percent of the population but 28
percent of those arrested and 40 percent of those
incarcerated.” 274 Moreover, “African-American men are now
268. FPD REP., supra note 41, at 63. For a more detailed discussion of the
discriminatory use of discretionary offenses in Baltimore and Ferguson, see infra
notes 298–300 and accompanying text.
269. FPD REP., supra note 41, at 69.
270. Cynthia Jones & Nancy Gist, Decision Points: Disproportionate Pretrial
Detention of Blacks and Latinos Drives Mass Incarceration, HUFFINGTON POST:
THE BLOG (Nov. 11, 2015, 3:34 PM), http://www.huffingtonpost.com/cynthiajones/pretrial-detention-blacks-and-latinos_b_8537602.html
[https://perma.cc/PA89-35HJ]. For a more detailed discussion of racial disparities
in bail decisions, see Cynthia E. Jones, “Give Us Free”: Addressing Racial
Disparities in Bail Determinations, 16 N.Y.U. J. LEG. & PUB. POL’Y 919 (2013).
271. COUNCIL OF ECON. ADVISERS, supra note 2, at 7 (citing Shawn D.
Bushway & Jonah B. Gelbach, Testing for Racial Discrimination in Bail Setting
Using Nonparametric Estimation of a Parametric Model (Aug. 20, 2011)
(unpublished paper), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1990324
[https://perma.cc/MVA6-CAKF]).
272. Bushway & Gelbach, supra note 271, at 37.
273. AM. CIVIL LIBERTIES UNION OF NEB., supra note 223, at 20.
274. BANNON ET AL., supra note 149, at 4.

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incarcerated at a rate over six times their white male
counterparts.” 275 African-Americans are “2.7 times more likely
than whites to be stopped in investigatory stops.”276
Additionally, African-Americans are also more likely to be
killed in traffic stops. 277 The deaths in 2015 of Walter Scott in
South Carolina, Samuel Dubose in Ohio, and Sandra Bland in
Texas all involved minor traffic stops―“a broken brake light, a
missing front license plate[,] and failure to signal a lane
change,” respectively. 278
Data from three cities and a dozen state police districts in
Connecticut also reflected clear racial disparities in traffic
stops during the day, “when a driver’s race is easier to
detect.” 279 Disturbing data from LaDue, Missouri, indicates
that while African-Americans account for less than one percent
of the population, they were 18.5 times more likely to be
subject to a traffic stop than white drivers. 280 Similarly, data
from Oakland, California, reflect a disproportionate use of
automatic license plate readers in African-American and
Latino neighborhoods. 281
The Ferguson report also reflects racial disparities and
bias. It alleges intentional racial discrimination against
African-Americans. 282 The DOJ found that “African Americans
are disproportionately represented at nearly every stage of
Ferguson law enforcement, from initial police contact to final
disposition of a case in municipal court.” 283 The investigation

275. INIMAI CHETTIAR, LAUREN-BROOKE EISEN, & NICOLE FORTIER, BRENNAN
CTR. FOR JUSTICE, REFORMING FUNDING TO REDUCE MASS INCARCERATION 9
(2013).
276. CHARLES R. EPP, STEVEN MAYNARD-MOODY & DONALD P. HAIDERMARKEL, PULLED OVER: HOW POLICE STOPS DEFINE RACE AND CITIZENSHIP 64
(2014) (providing a detailed analysis of racial disparities in police stops).
277. Wesley Lowery, A Disproportionate Number of Black Victims in Fatal
Traffic Stops, WASH. POST (Dec. 24, 2015), https://www.washingtonpost.com/
national/a-disproportionate-number-of-black-victims-in-fatal-traffic-stops/2015/12/
24/c29717e2-a344-11e5-9c4e-be37f66848bb_story.html
[https://perma.cc/KK5HTA2A].
278. Sharon LaFraniere & Andrew W. Lehren, The Disproportionate Risks of
Driving While Black, N.Y. TIMES (Oct. 24, 2015), http://www.nytimes.com/
2015/10/25/us/racial-disparity-traffic-stops-driving-black.html
[https://perma.cc/
5JGK-SXF3].
279. Id.
280. Benns & Strode, supra note 125.
281. Gillula & Maass, supra note 228.
282. FPD REP., supra note 41, at 4.
283. Id. at 63.

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found that even after controlling for “non-race based variables”
“African Americans remained 2.07 times more likely to be
searched; 2.00 times more likely to receive a citation; and 2.37
times more likely to be arrested than other stopped
individuals.” 284 Moreover, the report alleges that each of the
results were “statistically significant and would occur by
chance less than one time in 1,000.” 285 The chances of the
differences occurring at the same time were even lower.286
Additionally, African-Americans were more likely to receive
multiple citations than whites while stopped. 287
Similarly, the DOJ’s investigation of the Baltimore Police
Department in 2016 found that the police “[d]epartment
intrudes disproportionately upon the lives of African
Americans at every stage of its enforcement activities.” 288 The
report alleges discrimination based on the “overwhelming
statistical evidence of racial disparities in . . . stops, searches,
and arrests.” 289 For example, the report found that while
African-Americans represent less than 60 percent of drivers,
they were involved in over 80 percent of traffic stops. 290
While African-Americans in Baltimore and Ferguson were
more likely to be searched, police were less likely to find
contraband with African-American drivers than with white
drivers. 291 Similarly, a study in Greensboro, North Carolina
revealed that while the police were over two times more likely
to search African-Americans and their vehicles in traffic stops
than white drivers, police were more likely to find drugs and
weapons with white drivers. 292
Similarly, the arrest and incarceration rates related to
traffic tickets in Port Arthur, Texas, show that while AfricanAmericans are ticketed at about the same proportional rate as
their make-up of the population, they represent more than 70

Id. at 65.
Id. at 66.
Id.
Id.
U.S. DEP’T OF JUSTICE, CIVIL RIGHTS DIV., INVESTIGATION OF THE
BALTIMORE CITY POLICE DEPARTMENT 47 (2016), https://www.justice.gov/
opa/file/883366/download [https://perma.cc/NE6P-MPNF] [hereinafter BPD REP.].
289. Id. at 48.
290. Id. at 52.
291. Id. at 53; FPD REP., supra note 41, at 65.
292. LaFraniere & Lehren, supra note 278.
284.
285.
286.
287.
288.

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percent of the arrests for such citations. 293 Additionally,
African-Americans in Port Arthur represented approximately
three-quarters of the individuals who spent more than two
days in jail for traffic tickets. 294
The discrimination is not limited to traffic violations as
studies also show discrimination in low-level, non-traffic
offenses. For example, an examination of data from four cities
in New Jersey of the low-level offenses of disorderly conduct,
defiant trespass, loitering, and marijuana possession found
“extreme racial disparities between black and white arrests.”295
The study found that African-Americans were “3.2 to 5.7 times
more likely to be arrested than Whites.” 296 Similarly, although
African-Americans and whites reportedly use marijuana at the
same rate, in Greensboro, North Carolina, African-Americans
are five times as likely to be charged with possession of minor
amounts. 297
Data from Ferguson and Baltimore also reflect racial
disparity in discretionary charges. African-Americans
represent about two-thirds of the residents in Ferguson;
however, they had “95% of Manner of Walking in Roadway
charges; 94% of all Fail to Comply charges; 92% of all Resisting
Arrest charges; 92% of all Peace Disturbance charges; and 89%
of all Failure to Obey charges.” 298 These statistics and the
claim that officer Darren Wilson stopped Michael Brown for
walking in the street led commentators to claim that “walking
while black” was a crime in Ferguson. 299
Similarly, in Baltimore, while African-Americans account
for less than two-thirds of the of the city’s residents, they had
“87[%] of . . . charges for resisting arrest; 89[%] of . . . charges
for making a false statement to an officer; 84[%] of . . . charges
for failing to obey an order; 86[%] of . . . charges for hindering
Campbell & Taggart, supra note 132.
Id.
AM. CIVIL LIBERTIES UNION OF N.J., SELECTIVE POLICING: RACIALLY
DISPARATE ENFORCEMENT OF LOW-LEVEL OFFENSES IN NEW JERSEY 12 (2015),
https://www.aclu-nj.org/files/7214/5070/6701/2015_12_21_aclunj_select_enf.pdf
[https://perma.cc/BNJ9-JN2F].
296. Id.
297. LaFraniere & Lehren, supra note 278.
298. FPD REP., supra note 41, at 62.
299. Molly Hennessy-Fiske, Walking in Ferguson: If You’re Black, It’s Often
Against the Law, L.A. TIMES (Mar. 5, 2015, 5:58 PM), http://www.latimes.com/
nation/la-na-walking-black-ferguson-police-justice-report-20150305-story.html#
page=1 [https://perma.cc/QXJ6-UKGS]; Hitt, supra note 124.
293.
294.
295.

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or obstruction . . . 83[%] of . . . arrests for disorderly conduct;
and 88[%] of . . . arrests for trespassing.” 300
Additionally, the DOJ has alleged that racial disparities in
Ferguson extend to the judicial system, as African-Americans
in Ferguson were more likely to have cases that lasted longer,
have warrants issued, and have disproportionate fines and
fees. 301
The “racialization of crime” is a growing concern with nonjailable offenses where procedural and evidentiary safeguards
are typically not available. 302 As a result, the trend toward
decriminalization of misdemeanors into non-jailable offenses
“risks further racializing the selection process as police are
empowered to stop and cite young black men more freely
without the constraints of criminal adjudication or the threat of
defense counsel.” 303 The “net-widening . . . can further intensify
racial disparities, creating new safety valves for white,
wealthy, well-educated, and other favored offender classes to
exit the enlarged criminal process while poor, minority,
addicted, and otherwise disadvantaged offenders remain
behind, unable to extricate themselves.” 304
Corrective action is necessary. The next section of this
Article will address the abuses in the collection of civil debts
and the response to curbing those abuses to illustrate a
potential structure for resolving abuses in the collection of
criminal justice debt.
II. THE FEDERAL FRAMEWORK TO ADDRESS ABUSES IN
CONSUMER DEBT COLLECTION
Debt collection abuses are not unique to the criminal
justice arena; America has also witnessed a history of abuses in
civil debt collection. 305 In many ways, consumer debt collection
300. BPD REP., supra note 288, at 55.
301. FPD REP., supra note 41, at 68–69.
302. Natapoff, supra note 109, at 1368 (stating that misdemeanors “represent
the concrete mechanism by which the system is able to generate ‘criminals’ based
on race, class, and social vulnerability, unconstrained by standard evidentiary
requirements”).
303. Natapoff, supra note 39, at 1059.
304. Id. at 1095.
305. Michael M. Greenfield, Coercive Collection Tactics—An Analysis of the
Interests and the Remedies, 1972 WASH. U. L.Q. 1, 15 (asserting that excessive
debt collection “tactics have been around for decades, if not centuries”).

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abuses mirror the abuses arising in the collection of criminal
justice debt; however, the concerns are even greater in the
criminal justice context, given the more severe consequences
arising from arrest, incarceration, and the creation of a
criminal record. 306
Recognizing that state and local governments had been
ineffective in stopping abuses by collectors of civil debt,
Congress created a federal solution. 307 The backbone of the
system is the Fair Debt Collection Practices Act (FDCPA)
enacted in 1977 308 and the Consumer Financial Protection
Bureau (CFPB) which began operations in July 2011. 309
While Congress has addressed abuses in the collection of
civil debt, a federal approach to combat abuses in the collection
and assessment of criminal justice debt does not currently
exist. This section will identify the reasons for the development
of the FDCPA and CFPB and illustrate how they parallel the
need for a similar system to address abuses in the collection of
criminal justice debt.
A.

The Rationale for the FDCPA Supports Adoption of a
Federal Act for Criminal Justice Debt

Just as abuses increased with the explosion of criminal
justice debt, increases in complaints about collection
accompanied the exponential growth in consumer debt. The

306. SHAFROTH & SCHWARTZOL, supra note 3, at 6–7. Acknowledging that
“[t]he problems of criminal justice debt lie at the intersection of criminal and
consumer law,” the Criminal Justice Policy Program (CJPP) at Harvard Law
School and the National Consumer Law Center (NCLC) have entered into a
collaborative project to help address the litigation and policy issues arising from
criminal justice debt. Id. at 4. More information about the project is available on
the CJPP and NCLC websites. See http://cjpp.law.harvard.edu/publications/
confrontingcjdebt [https://perma.cc/M4UK-CNNU]; http://www.nclc.org/issues/
confronting-criminal-justice-debt.html [https://perma.cc/HP5B-ZA54].
307. S. REP. NO. 95–382, at 2–3 (1977), as reprinted in 1977 U.S.C.C.A.N. 1695,
1696–97 [hereinafter 1977 SENATE REPORT].
308. 15 U.S.C. §§ 1692–1692p (2012). While the FDCPA is the primary federal
statutory source addressing abuses in debt collection, other federal remedies for
addressing collection abuses exist. See, e.g., The Fair Credit Reporting Act, 15
U.S.C § 1681 (2012); The Federal Trade Commission Act, 15 U.S.C. §§ 41–58
(2012); The Telephone Consumer Protection Act, 47 U.S.C. § 227 (1991).
309. CONSUMER FIN. PROT. BUREAU, FAIR DEBT COLLECTION PRACTICES ACT:
CFPB ANNUAL REPORT 2 (2013), http://files.consumerfinance.gov/f/201303_
cfpb_March_FDCPA_Report1.pdf [https://perma.cc/2XW8-JPHA] [hereinafter
CFPB 2013 ANNUAL REPORT].

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first major growth spurt in consumer debt occurred from 1950
to 1971. During this period, consumer debt “increased
fivefold.” 310 By 1971, outstanding consumer credit had
ballooned to more than $130 billion, representing more than
$600 for every American. 311 Similar to how the dramatic
growth in correctional supervision led to the proliferation of
prison, jail, and probation services, the dramatic increase in
consumer credit resulted in the development of an industry to
service and collect on consumer accounts. 312 In 1976, the
industry had more than 40,000 collectors in over 5,000 agencies
that collected more than $5 billion. 313 A trade group
representing about 50 percent of these collectors reported that
its members contacted eight million people in 1976. 314 In the
1970s, demands for regulation of the debt collectors developed
at both the state and federal level. 315
On March 20, 1978, the FDCPA became effective and was
heralded as the “first comprehensive federal debt collection
statute.” 316 In response, many states enacted similar
legislation. 317 The purported goal of the FDCPA—which had
the support of consumer groups, national debt collection
organizations, and state and federal law enforcement groups—
was to “protect consumers from a host of unfair, harassing, and
deceptive debt collection practices without imposing
unnecessary restrictions on ethical debt collectors.” 318
In support of the FDCPA, Congress provided findings
indicating abusive practices, inadequacy of laws, availability of
non-abusive collection methods, the impact on interstate
310. Robert L. Geltzer & Lois Woocher, Debt Collection Regulation: Its
Development and Direction for the 1980s, 37 BUS. LAW. 1401, 1402 (1982).
311. Greenfield, supra note 305, at 1.
312. Geltzer & Woocher, supra note 310, at 1402; David C. Frazier & Edward
Tonore, Consumer Credit Protection, Fair Debt Collection Practices Act 15 U. S. C.
§ 1692 (Cum. Supp. 1978), 1 MISS. C. L. REV. 157, 157 (1978) (finding “[t]he rise in
consumer credit outstanding has greatly contributed to the growth of third party
debt collectors in America”).
313. 1977 SENATE REPORT, supra note 307, at 1696.
314. Id.
315. Geltzer & Woocher, supra note 310, at 1402.
316. Id. The FDCPA was not the first federal regulation addressing debt
collection. Frazier & Tonore, supra note 312, at 177–80 (discussing FTC’s preFDCPA enforcement actions as well as pre-FDCPA legislation including the
Truth-in-Lending Act, the Extortionate Credit Transactions Act, and the Fair
Credit Reporting Act).
317. Geltzer & Woocher, supra note 310, at 1402–06.
318. 1977 SENATE REPORT, supra note 307, at 1696.

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commerce, and the purposes of the Act. 319 This section will
provide detail on the findings and purposes of the FDCPA to
show how similar and often stronger motivations exist in the
criminal justice debt context. These concerns support the
creation of a federal act to confront abuses in the collection of
criminal justice debt.
1. Abusive Practices
“There is abundant evidence of the use of abusive,
deceptive, and unfair debt collection practices by many debt
collectors. Abusive debt collection practices contribute to the
number of personal bankruptcies, to marital instability, to
the loss of jobs, and to invasions of individual privacy.” 320

The abusive practices identified in the Senate report for
the FDCPA included “obscene or profane language, threats of
violence,
telephone
calls
at
unreasonable
hours,
misrepresentation of a consumer’s legal rights, disclosing a
consumer’s personal affairs to friends, neighbors, or an
employer, obtaining information about a consumer through
false pretense, impersonating public officials and attorneys,
and simulating legal process.” 321
A former debt collector testifying at the House hearings in
1976 on the FDCPA provided examples of some of the abuses,
including seeking recovery of debts that were not owed. 322 He
stated that “beating,” the practice of repeatedly calling
individuals at home and work, was the typical method of
collecting debts. 323 Other techniques he used to collect included
pretending to be from a law firm or law enforcement and
threatening arrest and imprisonment. 324 He also threatened to
have children sent to orphanages if alleged debtors did not
agree to pay. 325 He even called parents of alleged debtors and
319. 15 U.S.C. § 1692 (2012).
320. Id. § 1692(a).
321. 1977 SENATE REPORT, supra note 307, at 1696.
322. The Debt Collection Practices Act: Hearings on H.R. 11969 Before the H.
Subcomm. on Consumer Affairs of the H. Comm. on Banking, Currency & Hous.,
94th Cong. 30 (1976) [hereinafter 1976 Hearings] (estimating that at least half of
the record and book account debts were “illegitimate”).
323. Id. at 31.
324. Id. at 31–32.
325. Id. at 31.

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told them that their children would be incarcerated unless the
parents paid their debt. 326 For debts in which the limitations
period had expired, a common practice was to seek token
payments to restart the limitations period. 327
Other testimony at the House hearings included
information from reporters who worked undercover at debt
collection agencies. 328 One reporter testified that the manager
taught collectors to be abusive and harassing. 329 Testimony
further revealed that it did not matter whether the consumer’s
debt was legitimate, as illustrated by a collector who proudly
displayed a letter from an alleged debtor stating, “I don’t owe
this bill, but I am sending you the money just to be rid of
you.” 330 To make matters worse, collectors would also add
additional charges to amounts owed. 331
Similarly, a former debt collector testified in 1977 about
the collection abuses he witnessed. 332 He stated that the “debt
collection business . . . not only ruins the lives of people who
must deal with debt collection agencies, but in many cases it
can even ruin the lives of those who work as debt collectors.” 333
He confirmed that he, too, was aware of the abuses discussed
by the former debt collector who testified at the 1976
hearings. 334 He provided details on different techniques or
“gags” that debt collectors used. 335 The gags were intended to
acquire the debtor’s employment and location information. 336
Typically, they involved pretending to be from sales, insurance,
or survey companies. 337 He testified that collectors would also
call debtors’ family members, pretending to be from law
enforcement and reporting that the debtor was allegedly
326. Id. at 31–32.
327. Id. at 30–31. The resurrection of an unenforceable debt creates a zombiedebt. For a more detailed discussion of this issue and how zombie debts have
increased due to the growth in debt buyers, see Sobol, Protecting Consumers,
supra note 4.
328. 1976 Hearings, supra note 322, at 45–60.
329. Id. at 45.
330. Id. at 46.
331. Id.
332. The Debt Collection Practices Act: Hearings on H.R. 29 Before the H.
Subcomm. on Consumer Affairs of the H. Comm. on Banking, Fin. & Urban
Affairs, 95th Cong. 22–27 (1977).
333. Id. at 22.
334. Id. at 23.
335. Id. at 24–26.
336. Id.
337. Id.

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involved in an accident and requesting employment
information to confirm the debtor’s whereabouts. 338
As described in Part I, the abusive practices associated
with the collection of criminal justice debt are at least as, if not
more, severe than the abuses that occur in the collection of
consumer debt. The concerns about the collateral consequences
of abusive civil debt collection leading to bankruptcy, family
disharmony, and unemployment that motivated Congress to
enact the FDCPA also exist with abusive criminal justice debt
collection. 339 Moreover, the imposition of criminal justice debt
can result in arrest, incarceration, a criminal justice record,
loss of federal benefits, and suspension of driver’s licenses.340
These consequences can cause people to distrust government
officials. As a result, individuals with criminal justice debt may
avoid going to public places, seeking medical aid, or requesting
police assistance. 341
The Senate report refuted the contention that the FDCPA
would benefit “deadbeats” by describing the “universal
agreement among scholars, law enforcement officials, and even
debt collectors that the number of persons who willfully refuse
to pay debts is miniscule.” 342 The report found that the “vast
majority” of debtors “fully intend to repay their debts,” and
default is typically the result of “an unforeseen event such as
unemployment, overextension, serious illness, or marital
difficulties or divorce.” 343 Likewise, many of the abuses that
arise from criminal justice debt impact individuals because of
their inability, rather than refusal, to pay. 344
Accordingly, to the extent the abuses and consequences of
civil debt collection supported the creation of the FDCPA, the
even more severe abuses and consequences in the collection of
criminal justice debt support the adoption of a federal act.

338. Id. at 25.
339. 15 U.S.C. § 1692(a) (2012).
340. See supra Part I.C.4, 5.
341. See supra Part I.C.4.
342. 1977 SENATE REPORT, supra note 307, at 1697; John Tavormina,
Comment, The Fair Debt Collection Practices Act – The Consumer’s Answer to
Abusive Collection Practices, 52 TUL. L. REV. 584, 588 (1977–1978).
343. 1977 SENATE REPORT, supra note 307, at 1697; Tavormina, supra note
342, at 588.
344. See supra Part I.C.3.

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2. Inadequacy of Laws
“Existing laws and procedures for redressing these injuries
are inadequate to protect consumers.” 345

Just as current efforts to curb abuses in the collection of
criminal justice debt abuse have failed, pre-FDCPA efforts to
prevent abuses by civil debt collectors had failed at both the
federal and state level. Before the 1970s, state and federal
governments provided little or no regulation of debt collection
activities. 346
The Consumer Credit Protection Act of 1968 347 marked the
beginning of federal efforts to regulate consumer credit;
however, such efforts provided only indirect means of
regulation. 348 The regulation included potential actions by the
Federal Trade Commission, the Federal Communications
Commission, and the United States Postal Service that allowed
for ad hoc administrative decisions but failed to statutorily
describe the rights of consumers and the duties of collectors. 349
Additionally, the Senate report on the FDCPA emphasized
that the collection abuses were widespread, national problems
and the states had failed to provide sufficient laws to curb debt
abuse. 350 The report revealed that about eighty million people,
or 40 percent of Americans, had “no meaningful protection from
debt collection abuse,” finding that thirteen states had no debt
collection laws, and another eleven states had ineffective
safeguards. 351 The report concluded that the states’ failure to
provide “meaningful legislation” was the “primary reason” for
“widespread” abusive debt collection. 352
Moreover, common-law remedies were ineffective
piecemeal approaches to help consumers. 353 For example,
345. 15 U.S.C. § 1692(b) (2012).
346. Geltzer & Woocher, supra note 310, at 1402.
347. 15 U.S.C. §§ 1601–1691.
348. Tavormina, supra note 342, at 584. For example, the powers of the
Federal Trade Commission were based only on guidelines without “the force of
law” and the Federal Communications Commission’s authority was limited to
telephone communications. 1976 Hearings, supra note 322, at 23.
349. Tavormina, supra note 342, at 584–85.
350. 1977 SENATE REPORT, supra note 307, at 1696–97.
351. Id. at 1697.
352. Id. at 1696; Frazier & Tonore, supra note 312, at 159.
353. Frazier & Tonore, supra note 312, at 180; Tavormina, supra note 342, at
586.

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causes of action for libel and slander, invasion of privacy,
emotional distress, abuse of process, and malicious prosecution
were not effective against debt collection abuses. 354 One
problem with the common-law approach is its focus on
compensating for, rather than preventing, abuses. 355
Similarly, the approach to abuses in criminal justice debt
collection has been a compensatory approach rather than a
preventive approach. The current approach relies on lawsuits
filed by the DOJ, the ACLU, and other private non-profit
groups that seek to establish constitutional violations by
individual municipalities. This case-by-case method is only a
piecemeal approach for past abuses and does not provide a
comprehensive method for preventing abuses that are
occurring throughout the country. 356
3. Alternative Non-Abusive Collection Methods
“Means other than misrepresentation or other abusive debt
collection practices are available for the effective collection
of debts.” 357

Just as Congress recognized that non-abusive methods
exist for collection of civil debt, alternative non-offensive
methods for collecting criminal justice debt exist. The nonabusive alternatives in the criminal justice context include
taking into account ability to pay at the time of sentencing as
well as at the time of collection. 358 Eliminating incarceration
when failure to pay is based on inability to pay can also result
in savings to municipalities based on the expense of
incarceration and the unlikelihood of financial recovery from
those unable to pay. 359 Studies have shown that such punitive
systems can be fiscally counterproductive. 360 Additionally,
354. Frazier & Tonore, supra note 312, at 161–66; Tavormina, supra note 342,
at 586.
355. Frazier & Tonore, supra note 312, at 180.
356. See Balko, supra note 35 (claiming that while lawsuits may end debtors’
prisons “[b]asic humanity ought to compel . . . [public officials] to address the
problem way before these lawsuits ever get in front of jury”).
357. 15 U.S.C. § 1692(c) (2012).
358. See, e.g., Sobol, Charging the Poor, supra note 4, at 524–32 (discussing
alternative systems, including the use of day fines).
359. COUNCIL OF ECON. ADVISERS, supra note 2, at 4–5.
360. See supra note 225 and accompanying text.

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reducing or eliminating poverty penalties can help prevent
citizens from entering the endless cycle of debt based on the
piling-on of charges when they lack the ability to pay. Another
alternative to abusive criminal justice debt charges is the use
of non-monetary sanctions such as community service.
Similarly, instead of relying on cash bail systems that unfairly
discriminate against the indigent and lead to expenses for
jailing those who are unable to pay bail, alternatives should
focus on whether there is a public safety or flight risk. 361
4. Interstate Commerce
“Abusive debt collection practices are carried on to a
substantial extent in interstate commerce and through
means and instrumentalities of such commerce. Even where
abusive debt collection practices are purely intrastate in
character, they nevertheless directly affect interstate
commerce.” 362

A justification for the use of federal FDCPA was the
impact on interstate commerce as the development of wide area
telephone service lines allowed for a “dramatic increase in
interstate collections.” 363 While such concerns may not at first
be as apparent in the criminal debt arena, where most of the
collections are intrastate, the imposition of criminal justice
debt is not limited to state residents. Instead, it also extends to
non-residents visiting the state. Additionally, interstate
commerce may be impacted where out-of-state private
companies are used. For example, Sentinel Offender Services, a
private probation company headquartered in California,
advertises on its website that it is operating “across the United
States” with “more than 40 field locations.” 364
Moreover, as illustrated by the Ferguson report, the
abusive collection of criminal justice debt implicates equal
protection and due process concerns as well as civil rights

361. See supra note 215 and accompanying text.
362. 15 U.S.C. § 1692(d) (2012).
363. 1977 SENATE REPORT, supra note 307, at 1697.
364. About Sentinel Offender Services, https://www.sentineladvantage.com/
about-sentinel-offender-services/ (last visited Mar. 14, 2016) [https://perma.cc/
5ULU-U7JM].

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violations and discrimination. 365 Additional constitutional
concerns may arise under the Sixth Amendment’s right to
counsel and the Eighth Amendment’s restriction on excessive
bail and fines. 366 These federal questions further support the
adoption of a federal statute. 367
5. Purposes
“[T]he purpose of this subchapter [is] to eliminate abusive
debt collection practices by debt collectors, to insure that
those debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged,
and to promote consistent State action to protect consumers
against debt collection abuses.” 368

Just as the FDCPA seeks to promote consistent action and
prevent non-abusive collectors from suffering a competitive
disadvantage, reforms of criminal justice debt collection should
be established to provide consistent treatment of defendants
and to not unfairly punish municipalities who comply with the
reforms. Moreover, municipalities who comply and achieve
results could receive federal funding. 369

365. FPD REP., supra note 41, at 1–6. Bearden involved equal protection and
due process concerns. Bearden v. Georgia, 461 U.S. 660, 665–67 (1983).
366. U.S. CONST. amends. VI, VIII. For a more detailed discussion of the
impact of the Eighth Amendment on criminal justice debt, see Beth A. Colgan,
Reviving the Excessive Fines Clause, 102 CAL. L. REV. 277 (2014); Eisen, supra
note 73.
367. See, e.g., Cara H. Drinan, The National Right to Counsel Act: A
Congressional Solution to the Nation’s Indigent Defense Crisis, 47 HARV. J. ON
LEGIS. 487, 508–16 (2010) (advocating the adoption of a federal act to provide
right to counsel for indigent criminal defendants).
368. 15 U.S.C. § 1692(e) (2012).
369. See LAUREN-BROOKE EISEN & INIMAI CHETTIAR, BRENNAN CTR. FOR
JUSTICE, THE
REVERSE
MASS INCARCERATION
ACT
7–11
(2015),
https://www.brennancenter.org/sites/default/files/publications/The_Reverse_Mass
_Incarceration_Act%20.pdf [https://perma.cc/XDL9-ZKY8] (advocating federal
funds for states that reduce imprisonment and crime).

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The Justifications for the CFPB Support the Need for a
Federal Agency to Combat Abusive Criminal Justice
Debt Collection

After the enactment of the FDCPA and until the early
1990s, debt collection complaints declined. 370 Thereafter,
abuses and complaints grew as both consumer debt and debt
collection again expanded at exponential rates until 2010. 371
By 2010, the Federal Trade Commission classified the system
of addressing consumer debt disputes as “broken.” 372 Beginning
operations in July 2011, the CFPB would become the new “cop
on the beat” to help combat abuses in debt collection. 373
The reasons why the CFPB was necessary to aid in the
battle against abusive civil debt collection parallel similar
concerns that exist regarding why a federal agency should be
involved with criminal justice debt issues.
Although President Carter had recognized the need for a
consumer protection agency to regulate debt collection issues
when he signed the FDCPA, 374 it would take more than thirty
years before the CFPB was created. 375 The CFPB was one part
of the Dodd-Frank Wall Street Reform and Consumer
Protection Act of 2010 enacted in response to the economic
recession of 2008. 376 A primary concern of the CFPB was to
370. Lynn A.S. Araki, Comment, RX for Abusive Debt Collection Practices:
Amend the FDCPA, 17 U. HAW. L. REV. 69, 77–78 (1995).
371. Sobol, Protecting Consumers, supra note 4, at 333–36.
372. FED. TRADE COMM’N, REPAIRING A BROKEN SYSTEM: PROTECTING
CONSUMERS IN DEBT COLLECTION LITIGATION AND ARBITRATION i (2010),
http://www.ftc.gov/os/2010/07/debtcollectionreport.pdf
[https://perma.cc/Q27UH3F3].
373. Richard Cordray, Prepared Remarks of CFPB Director Richard Cordray
at
University
of
Michigan
Law
School
(Oct.
24,
2014),
http://www.consumerfinance.gov/newsroom/prepared-remarks-of-cfpb-directorrichard-cordray-at-university-of-michigan-law-school/
[http://perma.cc/K4K9EHLN]; see also Dee Pridgen, Sea Changes in Consumer Financial Protection:
Stronger Agency & Stronger Laws, 13 WYO. L. REV. 405, 405–06 (2013)
(categorizing the creation of the CFPB as a “sea change” in consumer protection
law). For an empirical analysis of the effectiveness of CFPB’s enforcement actions
through 2015, see Christopher L. Peterson, Consumer Financial Protection
Bureau Law Enforcement: An Empirical Review, 90 TUL. L. REV. 1057 (2016).
374. Presidential Statement on Signing the Consumer Protection Act
Amendments 1977, 2 PUB. PAPERS 1628 (Sept. 20, 1977).
375. CFPB 2013 ANNUAL REPORT, supra note 309, at 2.
376. A detailed discussion of Dodd-Frank Act and the creation of the CFPB is
beyond the scope of this Article. For more detailed information, see Leonard J.
Kennedy, Patricia A. McCoy & Ethan Bernstein, The Consumer Financial

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address issues created by the mortgage crisis. 377 However, the
CFPB was not limited to only mortgage debt or mortgagegranting entities. It also was given authority to address
general debt collection abuses, including the extension of credit
to a borrower without adequate regard to a borrower’s
reasonable ability to repay. 378 Moreover, while the FTC was
limited to review of unfair and deceptive practices by non-bank
entities, the CFPB was granted additional authority to review
abusive practices and non-financial institutions. 379
The CFPB was needed as the debt-collection industry had
radically changed from the industry that existed when
Congress passed the FDCPA. 380 The primary changes in the
industry were the addition of debt-buyers and the use of new
technologies. 381
Between 1980 and 2010, consumer credit once again grew
at record rates with revolving debt (primarily credit card debt)
Protection Bureau: Financial Regulation for the Twenty-First Century, 97
CORNELL L. REV. 1141, 1142–49 (2012).
377. Susan Block-Lieb, Accountability and the Bureau of Consumer Financial
Protection, 7 BROOK. J. CORP. FIN. & COM. L. 25, 27 (2012).
378. Tiffany S. Lee, No More Abuse: The Dodd Frank and Consumer Financial
Protection Act’s “Abusive” Standard, 14 J. CONS. & COM. L. 118, 122 (2011).
379. Jean Braucher, Form & Substance in Consumer Financial Protection, 7
BROOK. J. CORP. FIN. & COM. L. 107, 117–18 (2012).
380. CFPB 2013 ANNUAL REPORT, supra note 309, at 9 (stating “[t]oday’s
collection industry is markedly different from the industry contemplated when
Congress enacted the FDCPA”). The CFPB has also been subject to criticism. See,
e.g., Michael Hiltzik, Consumer Protection: Why Do Republicans Hate the CFPB so
Much?, L.A. TIMES (July 23, 2015, 12:46 PM), http://www.latimes.com/
business/hiltzik/la-fi-mh-cfpb-republicans-20150723-column.html [http://perma.cc/
G4FB-6NY3]; Ian Salisbury, The CFPB Turns 5 Today. Here’s What It’s Done (and
What It Hasn’t), TIME (July 21, 2016), http://time.com/money/4412754/cfpb-5-yearanniversary-accomplishments/ [https://perma.cc/25ML-25TR].
Lawsuits have
focused on, among other things, the role of the director who can only be removed
for cause. See, e.g., PHH Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1, 37–39
(D.C. Cir. 2016) (declaring that the “CFPB is unconstitutionally structured
because it is an independent agency headed by a single Director,” but remedying
the constitutional violation by “severing the for-cause removal position” and
allowing the CFPB to “operate as an executive agency”). While Richard Cordray
was the acting director when this Article was submitted for publication, concerns
exist about the future of the CFPB under a Trump administration. Lisa Lambert,
Consumer Financial Protection Bureau Could Be Defanged Under Donald Trump,
HUFFINGTON POST (Nov. 11, 2016, 1:41 AM), http://www.huffingtonpost.com/
entry/cfpb-donald-trump_us_58256519e4b02d21bbc839ea [http://perma.cc/3PBZL9Z4]. Even if there are changes in CFPB’s leadership or in its regulatory role,
the conclusions of this Article still support the use of the DOJ and a federal act to
address criminal justice debt abuses.
381. CFPB 2013 ANNUAL REPORT, supra note 309, at 9.

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reaching a peak in 2008 at over $1 trillion. 382 While consumer
credit was escalating, the debt collection industry experienced
a marked change as creditors began selling their debts. By
2005, the debt-buying industry was a $100 billion industry.383
The FTC characterized the massive influx of debt buyers as the
“most significant change in the debt collection business” since
2000. 384 Buyers paid cents on the dollar for debts and received
little information or documentation regarding the debts.
Moreover, the information received was often unwarranted,
contained inaccurate or incomplete information, and the debts
sold included debts that had been sold, paid, settled, or were
stale. 385 Additionally, new technologies “fundamentally
altered” the collection industry. 386 Innovations were especially
apparent in electronic payment systems and new
communication methods, including automatic dialers, e-mails,
cell phones, and text messaging. 387
An agency with the flexibility to provide regulations to
address these new types of collectors and these new
technologies was necessary. While the FDCPA had established
statutory restrictions and requirements for debt collectors, the
FDCPA had also explicitly precluded the development of
regulations. 388 Additionally, before the CFPB, a central agency
382. BD. OF GOVERNORS OF THE FED. RESERVE SYS., HISTORICAL DATA FOR
CONSUMER CREDIT OUTSTANDING (LEVELS), http://www.federalreserve.gov/
releases/g19/HIST/cc_hist_sa_levels.html
(last
updated
Feb.
7,
2017)
[http://perma.cc/KCX4-AEMB]; Sobol, Protecting Consumers, supra note 4, at 333–
34.
383. Peter A. Holland, The One Hundred Billion Dollar Problem in Small
Claims Court: Robo-Signing and Lack of Proof in Debt Buyer Cases, 6 J. BUS. &
TECH. L. 259, 265 (2011).
384. FED. TRADE COMM’N, COLLECTING CONSUMER DEBTS: THE CHALLENGES
OF CHANGE, A WORKSHOP REPORT iv (2009), https://www.ftc.gov/sites/default/files/
documents/reports/collecting-consumer-debts-challenges-change-federal-tradecommission-workshop-report/dcwr.pdf [http://perma.cc/ZVN9-HR6Z] [hereinafter
FTC Workshop].
385. Sobol, Protecting Consumers, supra note 4, at 352–59. See Dalié Jiménez,
Dirty Debts Sold Dirt Cheap, 52 HARV. J. ON LEGIS. 41 (2015) (providing an
analysis of the life-cycle of a sold debt by examining over eighty debt purchase
and sale agreements).
386. FTC Workshop, supra note 384, at iv.
387. Id. at 35–51; William P. Hoffman, Comment, Recapturing the
Congressional Intent Behind the Fair Debt Collection Practices Act, 29 ST. LOUIS
U. PUB. L. REV. 549, 562–68 (2010).
388. FTC Workshop, supra note 384, at 69–70. Prior to the adoption of DoddFrank Act, the FDCPA explicitly prohibited the FTC from issuing regulations
concerning debt collection. Id.; 15 U.S.C. § 1692l(d) (1995). Although the FTC was

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to address abuses and coordinate responses was not available,
often leading to conflicting results. 389 The Dodd-Frank Act
addressed these concerns by giving the CFPB primary
responsibility for administering the FDCPA and exclusive
jurisdiction to create regulations for consumer financial
protection. 390
Just as civil debt collection has witnessed an expansion in
new actors (debt buyers) and new technologies (payment and
communication systems), criminal justice debt collection has
seen new types of collectors and technologies. The new
collectors of criminal justice debt arise from outsourcing to
private prisons, probation companies, and collection services. 391
New technologies include license plate readers and credit/debit
card readers in police cars that allow for new methods of
collecting criminal justice debt. 392 The justifications for a
federal agency with rulemaking and enforcement authority to
address and coordinate actions against the ever-changing
landscape of civil debt collection exist to address the evolving
issues in the collection of criminal justice debt.
III. APPLYING THE FRAMEWORK TO CRIMINAL JUSTICE DEBT
COLLECTION
Just as the FDCPA and CFPB provide a framework to
confront abuses in the collection of consumer debts, a federal
act and regulatory authority should apply to criminal justice
debt. The remedies under the FDCPA and CFPB fall into three
general categories: prohibited practices, required actions, and

limited in its ability to create regulations under the FDCPA, the FTC did have
authority to address unfair or deceptive acts by non-bank entities under the
provisions of the Federal Trade Commission Act. 15 U.S.C. § 45 (2012). A detailed
discussion of the role of the FTC is beyond the scope of this Article. For more
information, see THE REGULATORY REVOLUTION AT THE FTC: A THIRTY-YEAR
PERSPECTIVE ON COMPETITION AND CONSUMER PROTECTION (James Campbell
Cooper ed. 2013).
389. Pridgen, supra note 373, at 405–09.
390. CFPB 2013 ANNUAL REPORT, supra note 309, at 6; Matthew R. Bremner,
Note, The Fair Debt Collection Practices Act: The Need for Reform in the Age of
Financial Chaos, 76 BROOK. L. REV. 1553, 1593 (2011); Block-Lieb, supra note
377, at 29; 12 U.S.C. § 5512 (2012).
391. See, e.g., Lynch, supra note 106 (discussing how private probation
companies create new issues as they assess additional charges to people who are
unable to pay fines and fees).
392. See supra notes 132–138 and accompanying text.

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enforcement and outreach activities. This section identifies the
key remedies in these categories and outlines how similar
provisions should be adopted to combat abusive criminal justice
debt practices. In doing so, I advocate the adoption of the
federal Fair Justice Debt Practices Act (FJDPA) to serve as the
statutory basis similar to the FDCPA and propose that the
DOJ serve as the regulatory authority for the FJDPA, just as
the CFPB plays that role for the FDCPA. Recognizing the need
for further collection of data, study, and debate about the
methods for addressing abuses in the collection of criminal
justice debt, this Article sets forth the concepts and a
framework for the FJDPA but leaves the formulation of the
specific provisions to a subsequent article.
Moreover, acknowledging that the significant differences
between criminal and consumer debts create a need for
differences in specific remedies, this Article does not propose
that the FDCPA and CFPB simply be extended to criminal
justice debt, but instead that the statutory and regulatory
framework used for consumer protection be applied to protect
the victims of abusive criminal justice debt practices.
The primary differences between civil and criminal debts
are the parties involved and the manner in which the debts are
incurred. For consumer debt issues, amounts are frequently
owed to private parties and private collection agents are
involved, whereas for criminal debt matters, the amounts are
generally owed to public parties and public collection agents
are involved. 393 Nonetheless, public parties are often holders of
the two largest sources of consumer debt: mortgage debt and
student loan debt. 394 Furthermore, due to outsourcing, private
parties are also involved in the collection of criminal justice
debt. 395
Additionally, consumer debts are incurred on a voluntary
basis in exchange for services, whereas criminal justice
393. The FDCPA does not apply to government officials. 15 U.S.C. §
1692a(6)(C) (2012); 1977 SENATE REPORT, supra note 307, at 1698 (describing that
debt collector under the FDCPA does not apply to “[g]overnment officials, such as
marshals and sheriffs, while in the conduct of their official duties”).
394. See, e.g., Courtney Miller, How Uncle Sam Became the Biggest Student
Lender, NERDWALLET (Jan. 5, 2016), https://www.nerdwallet.com/blog/
studies/uncle-sam-biggest-student-lender/ [http://perma.cc/EXN7-VFC4] (stating
that the federal government is the “largest holder of nonrevolving American
consumer debt,” owning more than 70 percent of student loan debt).
395. See supra Part I.C.2.

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obligations are imposed. 396 As such, criminal fines and fees are
generally not considered debts under the FDCPA.397
Interestingly, the Seventh Circuit has ruled that unpaid
parking fees and nonpayment sanctions were debts for
purposes of the FDCPA. 398 The district court ruled that the fee
was “properly characterized as a fine” rather than as a debt
subject to the FDCPA. 399 The fee consisted of a daily parking
charge of $1.50 and a non-payment sanction of $45.00. 400 A
public railroad owned the parking lot but used private entities
to manage the lot and collect on outstanding amounts. 401 The
FTC and CFPB filed an amicus brief asserting that the charges
were within the FDCPA’s broad definition of a debt. 402 The
Seventh Circuit agreed. The court found the parties had
entered into a contractual obligation when the plaintiffs, by
parking, accepted the offer contained in the signs on the lot. 403
These differences are important and help explain why the
specific remedies for consumer and criminal justice debts will
vary. However, the framework established by the FDCPA and
CFPB can be a model for confronting abusive criminal justice
debt practices.
A.

Prohibited Practices

The FDCPA prohibits general categories of behavior by
debt collectors and establishes specific restrictions on collector
activities. Similarly, the FJDPA should contain general and
specific restrictions for the collection of criminal justice debt.
396. See Bell v. Providence Cmty. Corr., No. 3:11–00203, 2011 WL 2218600, at
*4–5 (M.D. Tenn. June 7, 2011) (holding that probation fees were not a debt under
the FDCPA as they did not arise from a consumer transaction, “business deal or
consensual understanding”).
397. Id.; see also Pierre v. Retrieval-Masters Creditors Bureau, Inc., No. 152596, 2017 WL 1102635 at *10 (D.N.J. Mar. 24, 2017) (holding that neither tolls
nor related penalties for non-payment were debts under the FDCPA).
398. Franklin v. Parking Revenue Recovery Servs., Inc, 832 F.3d 741, 743 (7th
Cir. 2016).
399. Franklin v. Parking Revenue Recovery Servs., Inc, No. 13 C 02578, 2014
WL 6685472, at *6 (N.D. Ill. Nov. 25, 2014).
400. Id. at *2.
401. Id. at *1.
402. Brief of Amici Curiae Fed. Trade Comm’n & Consumer Fin. Prot. Bureau
at 16–17, Franklin v. Parking Revenue Recovery Servs., Inc, No. 14-3774 (7th Cir.
Dec. 11, 2015), http://files.consumerfinance.gov/f/201512_cfpb_amicus-brieffranklin.pdf [https://perma.cc/P29A-KLVX].
403. Franklin, 832 F.3d at 745.

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A primary objective of the FDCPA is to prevent
harassment or abuse. 404 Violations of the prohibition on
harassment or abuse under the FDCPA include using or
threatening violence to harm a person, her reputation, or her
property. 405 Additionally, the FDCPA prohibits abusive,
profane, or obscene language as well as calling individuals
“repeatedly or continuously with intent to annoy, abuse, or
harass.” 406
Similarly, the FJDPA should contain provisions to restrict
discriminatory, abusive, and harassing actions by the actors
involved in the collection of criminal justice debt. The FJDPA
should prohibit using or threatening incarceration to collect
criminal justice debt unless a judge determines that a
defendant has the ability to pay the debt. Officers should be
held accountable for discriminatory actions in stopping,
detaining, searching, and arresting individuals. 407 Similarly,
courts should avoid the discriminatory application of bail and
sentencing. Probation and collection officers, whether public or
private officials, should be prohibited from using abusive
techniques to collect revenue.
The FDCPA also prohibits false or misleading
representations. 408 The general provisions prohibit false
statements regarding the “character, amount, or legal status of
any debt.” 409 This prohibition covers collectors falsely asserting
that they have a judgment on a debt. 410 Moreover, the FDCPA
prohibits misrepresentations as to the consequences of failure
to pay a debt as well as the actions that collectors are
authorized to take. 411 In general, the FDCPA prohibits
collectors from threatening “any action that cannot legally be
taken or that is not intended to be taken.” 412 For example,
collectors are not permitted to represent or imply that failure
to pay will result in “arrest or imprisonment . . . or the seizure,
404. 15 U.S.C. § 1692d (2012).
405. Id. § 1692d(1).
406. Id. § 1692d(2), (5).
407. See e.g., AM. CIVIL LIBERTIES UNION OF N.J., supra note 295, at 6.
408. 15 U.S.C. § 1692e (2012).
409. Id. § 1692e(2).
410. David B. Goldston, Federal Regulation of Debt Collection Practices—The
Fair Debt Collection Practices Act and Section Five of the Federal Trade
Commission Act, 13 U.S.F. L. REV. 575, 589 (1979).
411. 15 U.S.C. § 1692e(4), (5).
412. Id. § 1692e(5).

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garnishment, attachment, or sale of any property or wages . . .
unless such action is lawful and the debt collector or creditor
intends to take such action.” 413
Similarly, the FJDPA should contain provisions
prohibiting false or misleading representations in the collection
of criminal justice debt. For example, the FJDPA should
prohibit collectors of criminal justice debt from misrepresenting
the consequences of failure to pay the debt. Collectors should
not be permitted to threaten incarceration without affording
defendants the right to a meaningful ability to pay hearing and
court-appointed counsel, if indigent. Similarly, probation
officers should not be permitted to require conditions, tests,
classes, or fees that are not court-mandated.
Additionally, the FDCPA confronts unfair practices by
stating that a “debt collector may not use unfair or
unconscionable means to collect or attempt to collect a debt.”414
Unfair conduct under the statute includes seeking to collect
amounts, including interest or fees, not authorized by the
underlying debt agreement or permitted by law. 415
Similarly, the FJDPA should address unfair or
unconscionable methods of collecting criminal justice debt. For
example, the FJDPA should restrict or eliminate the use of
poverty penalties that arise solely because an individual lacks
the ability to pay a monetary charge. Moreover, the FJDPA
should include provisions restricting the use of cash bail and
private probation companies.
Similar provisions have been proposed at the federal level.
For example, California Representative Ted Lieu has
introduced the “No Money Bail Act of 2016,” which bans cash
bail for federal crimes and restricts funding to states that use
cash bail. 416 Additionally, the proposed “End of Debtor’s Prison
Act” prohibits certain federal grants to states and
municipalities that rely on private probation companies that
charge for “pay-only” probation. 417 Some cities have already
413. Id. § 1692e(4).
414. Id. § 1692f.
415. Id. § 1692f(1).
416. No Money Bail Act of 2016, H.R. 4611, 114th Cong. (2016); Press Release,
Ted W. Lieu, Congressman Ted W. Lieu Introduces the “No Money Bail Act of
2016” (Feb. 24, 2016), https://lieu.house.gov/media-center/press-releases/
congressman-ted-w-lieu-introduces-no-money-bail-act-2016-0
[http://perma.cc/
PY8E-V3EU].
417. End of Debtor’s Prison Act of 2017, H.R. 1724, 115th Cong. (2017).

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banned private probation companies. 418 The initial reports
from municipalities that have stopped using private probation
companies are favorable. 419
The FJDPA could expressly prohibit incarceration based
on fines or fees. 420 Professor Natapoff has suggested statutory
language aimed at preventing the incarceration of individuals
who are unable to pay criminal justice debt created by
decriminalization laws. 421 If the FJDPA does not ban
incarceration as a prohibited practice, then it should establish
required practices, as described in the following section, to
determine when incarceration for failure to pay criminal justice
debt is appropriate.
The FDCPA also establishes specific restrictions on
communications with the debtor and third parties. 422 For
example, it creates time and place restrictions on contacting
the debtor, prohibiting communications at inconvenient times
(presumed to be after nine p.m. and before eight a.m.) and at
the debtor’s place of employment. 423 Furthermore, the FDCPA
seeks to prevent debt collectors from revealing information to
third parties about the status of an individual as a debtor by
generally restricting calls to third parties to requests for
418. John Archibald, Alabama’s For-Profit Courts Turn American Dream into
Nightmare, AL.COM (Nov. 21, 2014, 1:42 PM), http://www.al.com/
opinion/index.ssf/2014/11/alabamas_for-profit_courts_tur.html
[http://perma.cc/
MZ2X-2JST]. See, e.g., Agreement to Settle Injunctive and Declaratory Relief
Claims ¶ 8, Mitchell v. City of Montgomery, No. 2:14-cv-00186-MHT-CSC (M.D.
Ala. Nov. 17, 2014), http://media.al.com/opinion/other/montgomeryDoc%20511%20-%20Settlement%20of%20Injunctive%20and%20Declaratory%20Claims%
2011-17-2014.pdf [http://perma.cc/JH23-SBM7] (providing a three-year ban on use
of private probation companies in Montgomery, Alabama).
419. See, e.g., Patrick McCreless, Smooth Transition Since Cities Took Over
Municipal Court Probation Services, ANNISTON STAR (Feb. 20, 2016),
http://www.annistonstar.com/news/anniston/smooth-transition-since-cities-tookover-municipal-court-probation-services/article_2d461526-d823-11e5-af0e-8bc64a
886b0e.html [http://perma.cc/ANY6-3B8E] (describing the results in Anniston and
Jacksonville, Alabama after ceasing the use of private probation companies).
420. Some commentators would expressly ban incarceration for fees or fines.
See, e.g., Beckett & Harris, supra note 36, at 519. Others argue that the ban
should be restricted to fees. See, e.g., R. Barry Ruback, The Benefits and Costs of
Economic Sanctions: Considering the Victim, the Offender, and Society, 99 MINN.
L. REV. 1779, 1820 (2015).
421. Natapoff, supra note 39, at 1112–13.
422. 15 U.S.C. § 1692c (2012).
423. Id. § 1692c(a)(1), (3). The restriction on contacting a debtor at his job
exists when “the debt collector knows or has reason to know that the consumer’s
employer prohibits the consumer from receiving such communication.” 15 U.S.C. §
1692c(a)(3).

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location information. 424 Additionally, the FDCPA prohibits
communications by postcard or use of language or symbols on
envelopes that indicate that the communications are for debt
collection. 425
Similarly, given the collateral consequences that can arise
when third parties are aware of criminal justice debt—
including the impact on employment and housing—the FJDPA
should also prohibit communications at an individual’s place of
employment and restrict communications with third parties.
B.

Required Practices

In addition to prohibiting certain types of behavior, the
FDCPA also sets forth required practices for debt collectors.
Similarly, the FJDPA should establish requirements and
standards for the actors involved in the collection of criminal
justice debt.
The FDCPA sets up a system for validating and verifying
debts. 426 Although the process has been subject to criticism and
should be amended to reflect the growth in debt buyers, 427 the
concept of providing notice of rights is an important notion that
should apply to the collection of criminal justice debt. The basic
idea of the validation and verification requirements is to
provide notice and information to consumers to prevent the
collection from the wrong people or for the wrong amount. 428
The FDCPA requires that, within five days of her initial
communication, a collector provide the consumer with written
notice which includes the amount of the debt and the name of
the creditor as well as statements about the debtor’s ability to
dispute the debt. 429 The collector must notify the debtor that

424. Id. § 1692b, 1692c(b).
425. Id. § 1692b(4), (5).
426. Id. § 1692g.
427. See Sobol, Protecting Consumers, supra note 4, at 364–66. For an
empirical examination of whether consumers understand validation notices, see
Jeff Sovern & Kate K. Walton, Are Validation Notices Valid? An Empirical
Evaluation of Consumer Understanding of Debt Collection Validation Notices,
SMU L. REV. (forthcoming 2017).
428. As stated in the Senate Report, the purpose of the validation provision
was to “eliminate the recurring problem of debt collectors dunning the wrong
person or attempting to collect debts which the consumer has already paid.” 1977
SENATE REPORT, supra note 307, at 1699.
429. 15 U.S.C. § 1692g(a).

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she has thirty days to dispute the debt. 430 Additionally, the
collector must inform the debtor that if she requests
information about the original creditor within the thirty days,
the collector will provide the name and address of the original
creditor. 431 If the debtor timely disputes the debt or requests
information about the original creditor, the collector must cease
collection actions and communications until verification or the
original creditor information is provided. 432
Interestingly, the validation notices provided under the
FDCPA are often referred to as “mini-Miranda” warnings.433
Similarly, disclosure requirements should be set up for the
collection of criminal justice debt. The FJDPA should require
that defendants be afforded ability to pay hearings and
defendants be provided with information about the process for
contesting criminal justice debt and asserting inability to pay.
For example, the FJDPA could provide that notice of rights be
described on citations, at the courthouse, and on the court’s
website. Moreover, the FJDPA could provide counsel for
indigent defendants at such hearings. 434
The FJDPA should also establish procedures and
guidelines for determining the dollar amounts for bail, fines,
and fees. A process should be set up for review of existing
monetary charges as well as for the creation of new charges.
Those guidelines should leave open the possibility of
eliminating charges and denying new charges that may not be
appropriate. 435 For example, elimination of cash bail or fees for
public defenders could be considered.
To address the abusive use of fines and fees to generate
revenue for municipalities, the FJDPA should also require
430. Id.
431. Id. § 1692g(a)(5).
432. Id. § 1692g(b).
433. Araki, supra note 370, at 95–97; Melissa Travis, Comment, The Three Cs
Versus the Dinosaur: Updating the Technologically Archaic FDCPA to Provide
Consumers, Collectors, and Courts Clarity, 44 J. MARSHALL L. REV. 1033, 1039–40
(2011).
434. State Representative Adrienne Wooten has introduced a bill in
Mississippi to address the rights of indigent defendants in the collection of fines
and fees. The proposal requires appointment of counsel for indigent defendants
facing incarceration for failure to pay fines and fees and establishes scenarios
where defendants are presumed unable to pay fines and fees. H.B. 672, 132d Leg.,
Reg. Sess. (Miss. 2017).
435. For a more detailed discussion analyzing whether monetary charges
should be eliminated, see Sobol, Charging the Poor, supra note 4, at 532–34.

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revenue caps. Such caps should be inclusive to avoid the issue
of cities increasing fines and fees on areas not covered. 436 A
larger fine does not necessarily mean greater compliance. For
example, data reflects that traffic fines need not be high to help
traffic safety, as “[g]etting the ticket correlates to driver safety,
not the amount it costs.” 437
Requiring use of cameras may also help discourage
offensive and discriminatory collection efforts. 438 For example,
California now requires that officers record all traffic and
pedestrian stops. 439 Additionally, a police chief relied on
dashboard recordings to dismiss officers accused of
discriminating against African-American drivers. 440
The FDCPA also has a provision regarding the application
of payments when a debtor has multiple debts. Under such
circumstances, collectors must apply payment based on the
debtor’s request rather than to a disputed debt. 441 Similarly,
the FJDPA should establish a system for prioritization of the
application of payments received. For example, payments
should be applied to fines and restitution before fees.
C.

Enforcement and Outreach Activities

Merely establishing a federal law will not be effective
unless parties are aware of their rights and obligations, and its
provisions are enforced. The primary functions of the CFPB
include rulemaking, supervision, enforcement, responding to
consumer complaints, and education. 442
Just as the CFPB has become the “cop on the beat” to help
with the coordination of enforcement of the FDCPA, the DOJ
should help enforce the FJDPA. The DOJ is already performing
many activities similar to the activities undertaken by the
CFPB. What allows the CFPB to succeed is the ability to rely
436. For example, when Missouri placed caps on traffic fines, a dramatic
increase in non-traffic fines occurred. See supra notes 128–131 and accompanying
text.
437. Campbell & Taggart, supra note 132 (relying on a Canadian study on
traffic fines).
438. AM. CIVIL LIBERTIES UNION OF N.J., supra note 295, at 6 (recommending
use of “dashboard and/or body cameras”).
439. LaFraniere & Lehren, supra note 278.
440. Id.
441. 15 U.S.C. § 1692h (2012).
442. 12 U.S.C. § 5511(c) (2012); Kennedy et al., supra note 376, at 1146.

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on the FDCPA, whereas the DOJ in its enforcement actions
often has to rely on more general safeguards and greater
burdens in establishing violations of constitutional and civil
rights. Adopting a federal act setting forth the prohibited and
required practices of actors involved in the collection of
criminal justice debt will allow the DOJ to more effectively
combat abusive practices. Moreover, the DOJ should create or
designate a division to address compliance and help with
education and outreach.
The CFPB’s rulemaking authority allows it to establish
guidelines to help collectors understand their requirements
under the FDCPA. Similarly, the DOJ should develop
guidelines to help courts understand their obligations under
the FJDPA. For example, the DOJ could create procedures and
directives for ability to pay hearings, including notice process,
right to counsel, standards for indigency, and alternatives to
incarceration. 443 Additionally, guidelines could be established
providing for “independent oversight of police departments”
and restricting the use of citations as a measure of effective
performance. 444 The DOJ is currently seeking information
about best practices for assessment of fines and fees. 445 These
best practices could establish guidelines for courts and
municipalities.
As outlined in the Westlake case in the Introduction, the
CFPB also has supervisory, investigative, and enforcement
powers. The CFPB and FTC share enforcement under the
FDCPA, 446 and they also coordinate activities with other
443. For more detail about potential guidelines for ability-to-pay hearings, see
Sobol, Charging the Poor, supra note 4, at 535–37. Potential sources for
establishing indigency standards include standards used for determining right to
public defender and federal housing assistance. See ACCESS TO JUSTICE PROGRAM,
BRENNAN CTR. FOR JUSTICE, ELIGIBLE FOR JUSTICE: GUIDELINES FOR APPOINTING
DEFENSE COUNSEL (2008), https://www.nacdl.org/WorkArea/DownloadAsset.aspx?
id=22023&libID=21993 [https://perma.cc/G4RV-H4KQ]; CONG. BUDGET OFFICE,
FEDERAL HOUSING ASSISTANCE FOR LOW-INCOME HOUSEHOLDS (Sept. 2015),
https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/reports/50782lowincomehousing-onecolumn.pdf [https://perma.cc/KH9N-PZB4].
444. AM. CIVIL LIBERTIES UNION OF N.J., supra note 295, at 6.
445. Press Release, U.S. Dep’t of Justice, Justice Department Announces
Resources to Assist State and Local Reform of Fine and Fee Practices (Mar. 14,
2016),
https://www.justice.gov/opa/pr/justice-department-announces-resourcesassist-state-and-local-reform-fine-and-fee-practices
[https://perma.cc/9ZGN6TH4].
446. See Memorandum of Understanding Between the CFPB and the FTC
(Jan.
20,
2012),
https://www.ftc.gov/system/files/120123ftc-cfpb-mou.pdf

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agencies and state representatives. 447 For example, Operation
Collection Protection was “the first coordinated federal-state
enforcement initiative targeting deceptive and abusive debt
collection practices.” 448 In 2015, at least 115 actions were filed
“by . . . more than 70 law enforcement partners.”449
Additionally, as part of its supervisory powers, the CFPB
“conduct[s] internal examinations, visit[s] institutions,
require[s] reports from them, and open[s] up their books and
operations to scrutiny.” 450
The DOJ already exercises supervisory, investigatory, and
enforcement powers as evidenced by its investigation of the
Ferguson and Baltimore Police Departments. 451 Additionally,
the DOJ should require states and municipalities to provide
data to evaluate their progress in addressing abuses related to
criminal justice debt. Data accumulation and analysis is
fundamental to deciding the appropriate courses of action. 452
The current system does not have an adequate process for
collecting national statistics on the imposition of criminal
[https://perma.cc/F6JJ-995C].
447. See, e.g., Mark Totten, Credit Reform and the States: The Vital Role of
Attorneys General After Dodd-Frank, 99 IOWA L. REV. 115, 128 (2013) (discussing
coordination with state attorneys general).
448. Press Release, Fed. Trade Comm’n, FTC and Federal, State and Local
Law Enforcement Partners Announce Nationwide Crackdown Against Abusive
Debt Collectors (Nov. 4, 2015), https://www.ftc.gov/news-events/pressreleases/2015/11/ftc-federal-state-local-law-enforcement-partners-announce
[https://perma.cc/P6L7-Z6R9].
449. Id.
450. Cordray, supra note 373.
451. FPD REP., supra note 41; BPD REP., supra note 288. See also Simone
Weichselbaum, Policing the Police, MARSHALL PROJECT (May 26, 2015, 6:12 PM),
https://www.themarshallproject.org/2015/04/23/policing-the-police?utm_medium=
email&utm_campaign=newsletter&utm_source=opening-statement&utm_term=n
ewsletter-20160211-382#.UncKbIPQS [https://perma.cc/CTQ4-NUTU] (discussing
the effectiveness of investigations).
452. See, e.g., JUSTICE POLICY INST., BAIL FAIL: WHY THE U.S. SHOULD END
THE PRACTICE OF USING MONEY FOR BAIL 35 (2012), http://www.justicepolicy.org/
uploads/justicepolicy/documents/bailfail.pdf
[https://perma.cc/4ABD-BT5T]
(identifying the need for national data to help develop bail reform); Edmund L.
Andrews, Stanford Engineers’ ‘Law, Order & Algorithms’ Data Project Aims to
Identify Bias in the Criminal Justice System (Feb. 10, 2016),
http://news.stanford.edu/2016/02/10/law-order-algorithm-021016/ [https://perma.c
c/N7J5-NLNG] (describing Stanford University’s School of Engineering
development of a database of 100 million traffic stops throughout the United
States to help identify discrimination and “design practices that are more
equitable and effective at reducing crime”). The DOJ investigation of the
Baltimore Police Department emphasized the importance of data collection and
analysis. BPD REP., supra note 288, at 45.

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justice debt. 453 Establishing fact-gathering procedures and
requiring reporting and collection of data will allow for
continual study, assessment, and modification of appropriate
actions. Additionally, such processes would help create greater
transparency in the collection of criminal justice debt.
Third-party companies that provide outsourcing services
should be subject to oversight by municipalities and be
required to provide reporting information about their
operations. Employment of private companies could be
conditioned upon compliance with established standards,
reporting requirements, and approved fee schedules.
Additionally, just as the CFPB produces annual reports of its
activities under the FDCPA, 454 the DOJ should provide similar
reports reflecting its operations in addressing abuses in the
collection of criminal justice debt.
Dodd-Frank also requires the CFPB to collect and respond
to consumer complaints. 455 Accordingly, the CFPB has
established an online complaint database that allows
consumers to file complaints about collectors and sets up a
process for resolving the claims. 456 The DOJ should set up a
similar system to help track and resolve complaints about
criminal justice debt collection. 457
Just as the CFPB works with state and local groups, the
DOJ offers resources and advice to states and municipalities.
For example, in March 2016, the DOJ sent a letter to all state
chief justices and court administrators containing information
about their responsibilities associated with the collection of
criminal justice debt. 458 The letter set forth certain principles
based on constitutional protections that courts should follow in
imposing and enforcing fines and fees. 459 The principles
covered include the requirements that courts conduct indigency
hearings before incarcerating an individual for failure to pay
453. HARRIS, supra note 57, at 6–8.
454. 15 U.S.C. § 1692m (2012).
455. 12 U.S.C. § 5511(c)(2) (2012).
456. See Consumer Complaint Database, CONSUMER FIN. PROT. BUREAU,
http://www.consumerfinance.gov/complaintdatabase/ (last visited Apr. 3, 2017).
[https://perma.cc/68ZR-SWZN].
457. Sobol, Charging the Poor, supra note 4, at 538.
458. U.S. Dep’t of Justice, supra note 445.
459. Letter from Vanita Gupta & Lisa Foster, Office for Access to Justice, Civil
Rights Div., U.S. Dep’t of Justice 2 (Mar. 14, 2016), https://www.justice.gov/
crt/file/832461/download [https://perma.cc/ZJ3J-FT63].

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fines or fees; evaluate non-incarceration alternatives for those
unable to pay; avoid using arrest warrants and license
suspensions as collection methods rather than as a means of
protecting public safety; and avoid using cash bail on indigent
defendants who lack the ability to pay but are neither a flight
risk nor a threat to public safety. 460 Additionally, the letter
cautions courts to have oversight and control over the potential
unconstitutional actions of its staff and private companies who
are delegated authority from the court. 461 The letter explicitly
identifies the possible conflicts of interest that arise when
using private probation companies. 462 The chief justices were
encouraged to send the letters to all of their local judges and
provide training and resources to help judges. 463 The DOJ also
sent information about a resource guide and grant program to
help aid state and local authorities in the collection of fines and
fees. 464
Finally, providing education and outreach is a primary
function of the CFPB. 465 The CFPB targets education for
specific groups and has created form letters for use by
debtors. 466 Additionally, the DOJ should work with state and
local groups, including non-profit organizations, to provide
outreach and training to educate not only the actors involved in
the collection of criminal justice debt but also the general
public. Such programs are necessary to help mend the severe
trust issues that currently exist in many communities arising
from abusive criminal justice debt practices.
The DOJ is already performing many of the functions that
the CFPB is providing, including outreach and enforcement.
Armed with a federal statute specifying prohibited and
required practices for those involved in collecting criminal
justice debt, the DOJ would be more effective in the battle
against abuses in criminal justice debt collection.

460. Id.
461. Id. at 8.
462. Id.
463. Id. at 3.
464. U.S. Dep’t of Justice, supra note 445.
465. 12 U.S.C. § 5511(c)(1) (2012).
466. CONSUMER FIN. PROT. BUREAU, FAIR DEBT COLLECTION PRACTICES ACT:
CFPB ANNUAL REPORT 2015, at 42–45 (2015), http://files.consumerfinance.gov/f/
201503_cfpb-fair-debt-collection-practices-act.pdf [https://perma.cc/WL9F-FUUA].

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IV. FEDERALISM ISSUES
A legitimate concern about the proposal for a federal act
and use of a federal agency for enforcement is the impact that
it would have on states’ rights. 467 Similar concerns were raised
with the adoption of the FDCPA and the use of the CFPB. 468 To
address some of these concerns the FDCPA explicitly describes
its relationship to state law and sets forth a procedure for
states to obtain exemptions. 469 The FDCPA provides that state
laws are preempted only to the extent that they are
inconsistent with the FDCPA. 470 Following the enactment of
FDCPA, states enacted legislation similar to the FDCPA. 471
Some states provide even greater coverage. 472 Moreover, states
can receive an exemption under the FDCPA if they
demonstrate substantially similar laws and adequate
enforcement. 473 Additionally, the CFPB operates with state
and local authorities to coordinate enforcement and
outreach. 474 Similarly, as described in Part III, the DOJ is
already involved in the enforcement and outreach activities
similar to what the CFPB is doing. 475
My proposal is not meant to restrict state enforcement but,
instead, to provide a floor for enforcement. Moreover, I hope
that, as the experience with the FDCPA shows, states would
adopt legislation similar to the FJDPA. Just as with the
FDCPA, states would be encouraged to provide additional
provisions to safeguard their citizens. Similarly, as with the
FDCPA, the FJDPA could provide exemptions for states that
enact laws that provide greater protections.
To incentivize cooperation from states and municipalities,
467. A detailed analysis of the federalism concerns is beyond the scope of this
Article. For an example of an article that addresses these concerns, see Professor
Drinan’s advocacy of a federal act to provide counsel to indigent defendants.
Drinan, supra note 367.
468. See, e.g., 1977 SENATE REPORT, supra note 307, at 1703 (describing the
views of Senators Schmitt, Garn, and Tower that the legislation and regulation
should be left to the states).
469. 15 U.S.C. §§ 1692n, 1692o (2012).
470. Id. § 1692n.
471. See Geltzer & Woocher, supra note 310, at 1402.
472. See, e.g., TEX. FIN. CODE ANN. § 392.001(6) (West 2016) (debt collector
includes creditors collecting on debts).
473. 15 U.S.C. § 1692o.
474. See supra notes 447–449 and accompanying text.
475. See supra Part III.C.

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the FJDPA could condition federal grants on adoption of and
compliance with its requirements. 476 The DOJ currently uses
the threat of deprivation of federal funds for failure to comply
with its mandates. 477 Similarly, commentators have advocated
the withholding of federal funds to help enforce national
standards for constitutional policing. 478 Alternatively, instead
of mandating federal standards, the federal government could
“promulgat[e] guidelines and best practices” and use “grants
and other funding incentives” to encourage adoption by state
and local governments. 479
Finally, as discussed earlier, criminal justice debt abuses
may impact interstate commerce and, more importantly, often
involve deprivation of constitutional rights that justify the use
of a federal statute. 480 Under 42 U.S.C. § 14141, the DOJ can
seek relief against governmental authorities when its law
enforcement officers engage in a “pattern or practice” of
conduct that deprives individuals of their constitutional
rights. 481 The DOJ has used its authority under § 14141 to
investigate police departments, file lawsuits, and seek consent
decrees. 482 Accordingly, to the extent abusive collection
476. Current proposals for reform of bail practices and the use of private
probation companies rely on conditioning federal funds on state compliance. See
supra notes 416–417 and accompanying text. For a discussion regarding factors
that justify the conditioning of federal grants, see Drinan, supra note 367, at 509–
10.
477. See, e.g., Ryan J. Reilly, DOJ Threatens to Withhold Grants from States That
Aren’t Protecting Prisoners from Rape, HUFFINGTON POST (Feb. 12, 2014, 2:16 PM),
http://www.huffingtonpost.com/2014/02/12/doj-prison-rape_n_4775411.html
[https://perma.cc/5QZ3-S58W].
478. Nat Hentoff & Mike Hentoff, Real Police Reform Requires National
Policing Standards, CATO INST. (Aug. 12, 2016), https://www.cato.org/
publications/commentary/real-police-reform-requires-national-policing-standards
[https://perma.cc/YSV9-DDWN].
479. Barack Obama, Commentary, The President’s Role in Advancing Criminal
Justice Reform, 130 HARV. L. REV. 811, 838–39 (2017).
480. See supra Part II.A.4 (discussing constitutional concerns regarding equal
protection, due process, right to counsel, and potential violations of the Eighth
Amendment’s restriction on excessive bail and fines). For a more detailed
refutation of federalism concerns, see Drinan, supra note 367, at 508–10
(advocating for a national right to counsel act based on Sixth Amendment
concerns).
481. 42 U.S.C. § 14141 (2012).
482. See, e.g., BPD REP., supra note 288; FPD REP., supra note 41. A detailed
discussion of the use of § 14141 is beyond the scope of this Article. For more
information, see Stephen Rushin, Federal Enforcement of Police Reform, 82
FORDHAM L. REV. 3189 (2014) (providing an empirical review of the DOJ’s use of
§ 14141).

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methods form a pattern or practice of conduct depriving
individuals of constitutional rights, the DOJ already has the
authority to seek compliance of local government officials.
The current municipality-by-municipality approach of
federal lawsuits and federal investigations presents only a
piecemeal approach to stemming violations. 483 A federal
statutory and regulatory approach offers a more efficient
method of addressing these abuses and preventing abuses
before they arise. 484
V. CONCLUSION
Millions of Americans are subject to an abusive criminal
justice debt system that often focuses more on revenue
collection than public safety. They become trapped in the
system because they are unable to pay the fines and fees
assessed. Once in the system, their criminal justice debt
escalates. Their poverty prevents them from ever escaping.
Moreover, the system fosters discrimination and creates
distrust in communities.
A new approach is necessary to prevent abusive criminal
justice debt practices. When faced with similar issues in the
collection of civil debts, we turned to a federal framework. The
holders of criminal justice debt share the financial
consequences that consumer debtors have but also experience
denial of benefits, loss of driver’s licenses, criminal records,
arrest, and even incarceration. Given these greater
consequences, we should provide even greater protection for
individuals with criminal justice debt. A federal approach
should be examined. The exact contours of a federal act need
more detailed study and development. In March 2016, the DOJ
established a National Task Force on Fines, Fees, and Bail
Practices to develop model statutes, rules and procedures, and
best practices. The task force includes state judges,
legislatures, advocacy groups, and professors. 485 That task

483. See Hentoff & Hentoff, supra note 478 (recognizing the need for national
standards to address constitutional policing and stating that “[i]t is long past time
for the U.S. government to acknowledge that police misconduct is not a series of
isolated problems that can be solved by a series of individual civil rights
enforcement actions”).
484. See Balko, supra note 35.
485. U.S. Dep’t of Justice, supra note 445.

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force should examine the need for a federal statutory and
regulatory solution to confront abuses in the collection of
criminal justice debt. 486

486. Id. Similarly, the Laura and John Arnold Foundation commissioned a
five-year, nearly $4 million project, to study the imposition of criminal justice
fines and fees at state and local levels by examining the practices in eight states.
See Deborah Bach, UW Project Focuses on Fines and Fees That Create ‘Prisoners
of Debt’ (Dec. 4, 2015), http://www.washington.edu/news/2015/12/04/uw-projectfocuses-on-fines-and-fees-that-create-prisoners-of-debt/
[https://perma.cc/YD3F3FNR]. The study was subsequently expanded to cover nine states and the firstyear report to the Foundation was released in April, 2017. See ALEXES HARRIS ET
AL., MONETARY SANCTIONS IN THE CRIMINAL JUSTICE SYSTEM 3–4 (2017),
http://www.monetarysanctions.org/wp-content/uploads/2017/04/MonetarySanctions-Legal-Review-Final.pdf [https://perma.cc/7EUS-3WBC].

 

 

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