States Made Steady Progress in 2023 Stemming Tide of Criminal Legal Fees

This year, states around the country have continued to reverse course after decades of seeking to fund their courts, law enforcement, and prisons on the backs of people involved in the criminal legal system.

Changes that states made this year will take meaningful steps toward reducing the financial hardship of criminal legal fees while building toward legal systems that promote justice for all, regardless of income or wealth.

Criminal legal fees can be devastating. They can result in outstanding debt balances of hundreds or thousands of dollars, pushing people further into poverty and more deeply ensnaring them in a cycle of new fees, new charges, and court dates. And these effects come on top of any punishment — such as incarceration, fines, and restitution payments — resulting from becoming involved, fairly or unfairly, with the criminal legal system.

Many states and localities charge fees at every step of the criminal legal process — from making defendants pay for the use of a public defender to the costs of probation monitoring. For all the harm the fees do, it is often very costly for states and localities to collect them, and the money they generate is small relative to overall state and local revenues.

Fortunately, as lawmakers have become more aware of the damage these fees can inflict, they have engaged in some efforts to curb their use. These reforms have been bipartisan, taking place in states with both Republican- and Democratically held legislatures. And actions taken in this year’s legislative sessions demonstrate ways that states can reduce their reliance on fees:

• New Mexico eliminated criminal legal fees for adults. Its far-reaching legislation eliminates all fees that a person who has been convicted would be charged, either at the time of conviction or after. The new law also eliminates bench warrant fees, which courts used to issue anytime someone missed a hearing or payment. Eliminating fees in the state will go a long way toward reducing financial hardship for people trapped in the criminal legal system. In a survey of state residents who currently or previously had court debt or helped someone else pay it, 80 percent of respondents reported skipping essentials, like food, rent, or medical bills, to pay off that outstanding legal debt.
• Four states — Arizona, Illinois, Indiana, and Montana — eliminated some or all fees in their youth court systems. Juvenile courts in Indiana may now charge parents fees only if the court makes a specific finding that they can afford them. (Previously the burden was on families to show they could not.) The state also eliminated public defender fees in the youth court system. Going a step further, Arizona, Illinois, and Montana will generally prohibit courts from ordering youths or their parents to pay any contribution for any part of court costs. In Montana, any outstanding fees or costs owed currently by youth, or their parents, were forgiven at the time of the bill’s enactment.
• Two states — North Dakota and Oklahoma — made it easier to waive certain fines and fees. In North Dakota, after successful completion of an approved adult drug court program, a judge can now waive all relevant unpaid fines and fees, except for restitution. In Oklahoma, lawmakers expanded hardship waivers for defendants for all or part of the amount they may owe, updating the list of factors that the court can consider to determine whether a defendant is able to pay their court obligations. Previously courts merely considered an individual’s income, but now they must consider factors such as household living expenses, the number of dependents, and an individual’s assets. And individuals are automatically deemed unable to pay if they participate in federal assistance programs such as Temporary Assistance for Needy Families, the Supplemental Nutrition Assistance Program, or the Special Supplemental Nutrition Program for Women, Infants, and Children; if they receive subsidized housing support; or if their household income is below 150 percent of the federal poverty level.
• Four states — Maryland, Minnesota, New Mexico, and Vermont — have loosened certain restrictions placed on people who have yet to repay outstanding legal financial obligations. A new Maryland law will no longer make repayment of outstanding court fees or other court costs a precondition for expunging records of non-violent crimes. A bill enacted in New Mexico will remove the existing requirement that the state suspend driver’s licenses when people fail to appear in court or for non-payment of fines and fees. Minnesota made retroactive a 2021 law that ended driver’s license suspensions for unpaid fines, restoring licenses suspended pre-2021. More narrowly, in Vermont residents will no longer lose their driver’s licenses solely because they haven’t paid the fines for a moving violation.
• Six states — Arkansas, Hawai’i, Kansas, North Dakota, Utah, and Virginia — enacted bills that would require studies of how state and/or local courts operate, including the role of fines and fees. Five of the six states are requiring one-time studies. Virginia is requiring two: one examining costs and fees charged in state facilities and another examining costs in local jails. Utah will now require an annual report of the Utah Judicial Council that includes a range of details related to the courts’ use of fees and their justification. The council must also include justification for any new fees or fee changes it recommends and provide details on where the revenue will go.

Many states this year did consider, and a few enacted, bills that exacerbate the hardship associated with fees in the criminal legal system. But the overwhelming trend is in the right direction — toward fewer fees and more dollars for state legal system administration provided via general funds. Other states should follow suit in 2024.