Neil Sobol (Texas A&M) on Legal Financial Obligations (Regressive and Racist Taxes)...

Neil Sobol, FIGHTING FINES & FEES: BORROWING FROM CONSUMER LAW TO COMBAT CRIMINAL JUSTICE DEBT ABUSES, 88 University of Colorado Law Review 841 (2017)

Neil Sobol proposes the Fair Justice Debt Practices Act (FJDPA) as a means to combat the ubiquity of regressive and racist taxes disguised as law enforcement financial obligations (LFOs).  He presents damning statistics, including those demonstrating racial asymmetry, concerning billions of dollars in fines, asset forfeitures, bail forfeitures, surcharges, court fees, incarceration fees, probation fees, collection fees, penalties and interest.  While there are some legislative and litigation strategies to combat their imposition, Professor Sobol offers some relief to victims of oppressive means for collection, including tactics designed to extend and elongate the debt and payment of collection fees to private companies.  DreSmith

From the Article:

"Estimates indicate that “tens of millions”have been charged criminal justice debt aggregating more than $50 billion.

Additionally, many municipalities impose criminal justice debt to help overcome general budget deficits unrelated to criminal justice services.

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.

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.”

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.

…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 FDCPA prohibits collectors of consumer debt from engaging in harassing or abusive conduct, making false or misleading representations, or using unfair or unconscionable means.It also places restrictions on communications with third parties and establishes affirmative disclosure requirements for collectors.Additionally, in 2010, Congress established the Consumer Financial Protection Bureau (CFPB) to protect consumers “from unfair, deceptive, or abusive acts and practices.”The CFPB has investigative, regulatory, and enforcement powers.

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.

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."

An Illustration:

"Sentinel is a private probation company, which offers “zero cost” solutions to municipalities that outsource probation and supervision of criminal defendants.Sentinel's revenue is based solely on fees collected from those under probation or supervision.Private probation companies often act with little or no governmental oversight.

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. 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 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.

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. Neither Sentinel nor the court considered his ability to pay."

 

Neil Sobol (Texas A&M)

Neil Sobol (Texas A&M)

Andre Smith