ALI President Designate and Duke Law School Dean David F. Levi recently held a roundtable discussion with Patricia Breckenridge, Chief Justice of the Supreme Court of Missouri; Nathan L. Hecht, Chief Justice of the Supreme Court of Texas; Martin Hoshino, Administrative Director of the Judicial Council of California; Mary McQueen, President of the National Center for State Courts; and Maureen O’Connor, Chief Justice of the Supreme Court of Ohio to discuss the courts’ role in the problems described by the Department of Justice’s Ferguson report. The panelists are all members of the National Task Force on Fines, Fees and Bail Practices, which was formed to address the ongoing impact that court fines and fees, and bail practices have on communities – especially the economically disadvantaged – across the United States.
Dean Levi opened the discussion by asking Chief Justice O’Connor, who chairs the task force, what the focus has been since its inception. She noted that the problem exists well beyond Ferguson; it “has permeated nationally in our courts.” The task force has worked to identify the systems involved, and is identifying “broad, general steps, best practices, policies, etc., with specific examples that can be shared with all courts, however they are formulated and whoever the appointing authority may be, so that they may have this information available for training and implementation and for making sure that what is happening now in so many instances, which is essentially an established system of spiraling downward debt for our citizens, is curtailed.”
Chief Justice Hecht spoke specifically about Texas, noting that “in Texas the fines and fees are more than $1 billion a year. Eighty-five percent is paid within 30 days, so that part is fairly regular. … Texas has a collection improvement program that was enacted by the Legislature in 2011. It’s administered by the State Office of Court Administration. We have amended the rules that govern that program in the last few months — ‘we’ meaning the judicial council that’s the policymaking arm for the judiciary. The council amended the rules to allow trial courts more discretion in imposing fines and alternatives, and to require indigency determinations, which had not been required in the past.”
Chief Justice O’Connor added, “The indigency requirement that Justice Hecht referenced is one of the universal concepts that the task force will emphasize with all courts. The Bearden decision from the United States Supreme Court requires the determination of indigency and ability to pay, and if it’s not there, you look at an alternative rather than forcing a monetary sanction on someone who just can’t pay. That starts the whole process.”