Agencies may not engage in policing actions in order to generate revenue, and municipalities and states should not incentivize such actions.
Comment:
The imposition of fines as a response to unlawful conduct is a legitimate approach to public safety. Fines, like incarceration, can be a deterrent to conduct society wishes to prohibit. And, in at least some circumstances, fines may further policing objectives in ways that are less costly—both to individuals and to society as a whole—than arrest and incarceration. Likewise, asset forfeitures aimed at removing the profit from various forms of criminal enterprise can serve important law-enforcement goals. However, the arrests and citations that ultimately lead to the imposition of fines, or the seizure of assets, should be conducted only in order to further the legitimate goals of policing outlined in § 1.02, and should not be motivated in whole or in part by the goal of generating revenue. There is a significant difference between a parking ticket for a vehicle that is blocking an entrance to a building and a quota incentivizing officers to give larger numbers of parking tickets in order to meet budgetary shortfalls.
The unfortunate reality, however, is that policing agencies often have engaged in policing actions for revenue-driven reasons—and that other government actors often have incentivized policing agencies to do so. Some municipalities have imposed informal or formal quotas, or utilized other incentives, to encourage officers to conduct stops, issue citations, and even make arrests, with the primary goal of obtaining money for the public fisc. Officials at all levels of government also have incentivized these activities through budget decisions, as well as through statutory mechanisms that reward revenue-generating activity. In some jurisdictions, for example, agencies are permitted to keep all or some of the proceeds from seized assets; this encourages aggressive pursuit of asset forfeiture, even in cases in which it would not be warranted on public-safety grounds.
The harms that result from revenue-driven policing can be substantial—to individuals, to communities, and to law enforcement itself. For some individuals, particularly indigent persons and families, paying fines and fees may make the difference between the ability to pay rent or not, or the ability to feed a family adequately. Forfeitures deprive individuals of their property, including vehicles needed for transportation to employment, family, health care, and school. Individuals who find themselves unable to pay their fines and fees may face a variety of direct and collateral consequences of nonpayment, including additional fines and fees, deprivation of driving privileges, deprivation of voting privileges, probation revocations, enhanced punishment in future criminal cases, as well as arrest for noncompliance. The financial obligations themselves and their accompanying consequences can increase poverty and crime by trapping people in a cycle of debt. In some states, hundreds of thousands or even millions of individuals have suspended drivers’ licenses and, as a result, experience mounting court debt and accompanying deprivations of personal liberty. Even when some people can bear such financial consequences individually, these financial and collateral consequences may have a negative impact on communities as a whole. Finally, the perception that enforcement activity is geared toward revenue generation as opposed to public safety can be extremely damaging to the legitimacy of law enforcement. Revenue-driven policing also can distort officer and agency incentives in ways that result in the misallocation of policing resources, and ultimately, in reduced public safety.
Policing agencies and their officers should take steps to ensure that enforcement activities are conducted solely to further legitimate policing objectives. Municipalities should not encourage or incentivize policing agencies to undertake enforcement activities for the purposes of generating revenue. And municipalities and states should provide policing agencies with the resources they need to fulfill their objectives without engaging in revenue-generating activities. Finally, both state and local legislatures should review existing statutory schemes to avoid providing incentives to agencies to make enforcement decisions in order to raise revenue.
Reporters’ Notes
Legal financial obligations—such as fines, fees, or asset forfeiture—can play an appropriate role in criminal-justice policy. They are a milder form of enforcement than an arrest. Further, some crimes are economic in nature, and the payment of a fine or of restitution can serve important remedial purposes in addition to being a deterrent. For larger criminal enterprises, forfeiture can be an important tool to deprive organized crime of proceeds and return funds to victims. A range of policy reasons, therefore, supports the sound use of tickets, citations, and forfeitures for the appropriate reasons and in the appropriate circumstances. Revenue generation, however, is not among these legitimate policy aims. See, e.g., President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing 26 (2015) (emphasizing that agencies should not incentivize officers to take enforcement action “for reasons not directly related to improving public safety, such as generating revenue.”); Marshall v. Jerrico, 446 U.S. 238, 242 (1980) (recognizing that “injecting a personal interest, financial or otherwise, into the [law] enforcement process” raises serious due-process concerns).
Careful tailoring around financial obligations has not been the norm in the United States. Rather, in response to budgetary shortfalls, law-enforcement agencies, courts, municipalities, and states have turned to fines and fees as a revenue source. See, e.g., Michael W. Sances, Hye Young You, Who Pays for Government? Descriptive Representation and Exploitative Revenue Sources, 79 J. of Politics 1090 (2017) (noting that in 2012, about 80 percent of American cities with policing agencies derived revenue from fees, fines, and forfeitures, with about six percent of cities collecting over 10 percent of revenues); Roadmap to Equitable Fine and Fee Reform (2020), at https://www.policylink.org/resources-tools/equitable-fine-fee-reform (describing how “[t]he 2008 recession was a catalyst for many cities and counties to turn to fines and fees to try to balance their budgets, further harming residents who were already struggling to make ends meet.”). Municipalities have exerted both formal and informal pressure on agencies to generate revenue. See, e.g., U.S. Dept. of Justice, Investigation of the Ferguson Police Department (2015) (describing efforts by municipal officials to encourage the Ferguson, Missouri police department to issue more citations). State legislatures also have incentivized revenue-raising activities in various ways. In some states, for example, funds collected from criminal defendants are earmarked for state or local law enforcement, increasing the direct incentives for enforcement to generate revenue in order to supply their own budget. See, e.g., Tenn. Code. Ann. 39-17-428 (providing that half of the mandatory minimum fines for certain drug offenses “shall be paid to the general fund of the governing body of the law enforcement agency responsible for the investigation and arrest which resulted in the drug conviction.”). Similar revenue-sharing provisions incentivize asset forfeiture as well. See, e.g., Inst. for Justice, Policing for Profit: The Abuse of Civil Asset Forfeiture 14 (2010) (noting that policing agencies in all but a handful of states receive either all or most of the proceeds from any assets seized).
The consequences of fines and fees enforcement can be substantial. Even small fines may be beyond the reach of many indigent people. Nonpayment can result in additional fines, as well as a variety of collateral consequences including the loss of employment, housing, public assistance, drivers’ licenses, and voting rights. Brandon L. Garrett, Sara Greene and Marin Levy, Fees, Fines, Bail, and the Destitution Pipeline, 69 Duke L.J. 1463-1472 (2020); Alexes Harris et al., Monetary Sanctions in the Criminal Justice System 14 (Apr. 28, 2017), http://www.monetarysanctions.org/wp-content/uploads/2017/04/Monetary-Sanctions-Legal-Review-Final.pdf. Vanita Gupta & Lisa Foster, Off. of Justice Programs, Civil Rights Div., U.S. Dep’t of Justice, Dear Colleague Letter: Fines and Fees in State and Local Courts 7 n.9 (Mar. 14, 2016) (“Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no danger to the community; lose their jobs; and become trapped in cycles of poverty that can be nearly impossible to escape”), https://www.justice.gov/opa/file/832541/download. Forty-one U.S. states, for example, still require suspension of driver’s licenses for non-driving-related reasons, including non-payment of court debt. Will Crozier and Brandon Garrett, Driven to Failure: Analyzing Driver’s License Suspension in North Carolina, 69 Duke L.J. 1585 (2020); Mario Salas & Angela Ciolfi, Legal Aid Justice Ctr., Driven By Dollars: A State-By-State Analysis of Driver’s License Suspension Laws for Failure to Pay Court Debt 7-9 (2017); see also, Alan M. Voorhees Transp. Ctr. & N.J. Motor Vehicle Comm’n, Motor Vehicles Affordability and Fairness Task Force: Final Report xii (2006), https://www.state.nj.us/mvc/pdf/about/AFTF_final_02.pdf (finding that 42 percent of people lost their jobs as a result of the suspension of their driver’s licenses, and that 45 percent could not find another job). The scale of these legal financial obligations is particularly sweeping for low-level offenses, for which law enforcement do retain enormous discretion as to whether to engage in policing activity, and the enforcement of which may be less essential to promoting public safety. See, e.g., William Crozier, Brandon Garrett &Thomas Maher, Duke Law, Ctr. for Science & Justice, The Explosion of Unpaid Fines and Fees in North Carolina (2020) (finding that the bulk of uncollected criminal debt in North Carolina occurs in traffic cases and infractions), https://sites.law.duke.edu/csj-blog/2020/04/22/our-new-report-the-explosion-of-unpaid-criminal-fines-and-fees-in-nc/.
The effects of these policies fall disproportionately on racial minorities. Analysis of driver’s-license-suspension data has found that racial minorities are more likely to have their licenses suspended. See Crozier & Garrett, Driven to Failure, supra, at 1606–1607; Joanna Weiss & Claudia Wilner, Driven by Just. Coal, Opportunity Suspended: How New York’s Traffic Debt Suspension Laws Disproportionately Harm Low-Income Communities and Communities of Color, https://www.drivenbyjustice.org. An analysis of fines and forfeitures in California city governments found that the racial composition of the resident population—as opposed to budgetary considerations or public-safety factors—predicted a jurisdiction’s reliance on fines and fees enforcement. Akheil Singla, Charlotte Kirschner & Samuel B. Stone, Race, Representation, and Revenue: Reliance on Fines and Forfeitures in City Governments, 56 Urb. Affs. Rev. 1132 (2020); see also, Nat’l Task Force on Fines, Fees, and Bail Practices, Nat’l Ctr. for State Courts, Principles on Fines, Fees, and Bail Practices (December 2017) (urging courts to “acknowledge that their fines, fees, and bail practices may have a disparate impact on the poor and on racial and ethnic minorities and their communities.”), https://www.ncsc.org/__data/assets/pdf_file/0020/14195/principles-1-17-19.pdf.
Finally, in addition to its evident harms, enforcement of legal financial obligations can come at the expense of public safety by drawing police resources from actions geared toward the public interest. As emphasized consistently throughout these Principles, public safety and security is the paramount goal of policing, and revenue generation is not a legitimate goal of law enforcement. Indeed, it may come at a cost to public safety. A recent study found that a one percent increase in the share of revenues from fees, fines, and forfeitures collected by a municipality was associated with a 6.1 percent decrease in the violent crime clearance rate. Rebecca Goldstein, Michael W. Sances, Hye Young You, Exploitative Revenues, Law Enforcement, and the Quality of Government Service, Urban Affairs Rev. 1 (2018). In view of these concerns, a number of jurisdictions have moved to curb reliance on fines and fees. For example, San Francisco, California, created a Financial Justice Project, tasked with assessing the use of fines and fees in the city. See https://sfgov.org/financialjustice/. Some states also have imposed limits on the use of asset forfeiture, including by reducing the direct financial incentives to law-enforcement agencies to engage in the practice. See, e.g., Institute for Justice, “Civil Forfeiture Reforms on the State Level,” (last visited: July 25, 2020), https://ij.org/activism/legislation/civil-forfeiture-legislative-highlights/. A small number of jurisdictions also have required that data on fines and fees enforcement be made public, including by requiring local reporting to a state auditor. See, e.g., South Dakota Legislative Research Council, Issue Memorandum 2016-4, Asset Forfeiture (2016), at https://mylrc.sdlegislature.gov/api/Documents/Issue%20Memo/124655.pdf (noting reporting process in Minnesota and reforms in five states to civil forfeiture practices).