By: Laura Yetter

Member, American Journal of Trial Advocacy

Throughout the United States, many State and local governments struggle with limited budgets. As a result, some localities turn to their criminal courts as a key source of revenue; funding various State and local operations with fines and fees collected from criminal offenders.^[1] Harsh penalties, increased court costs, and other usage fees are key indicators of such a system.^[2]  This system presents a serious risk of a court becoming more concerned with imposing and collecting fines than the court’s duty to administer justice in an ethical and reasonable manner.^[3]

In Alabama, the State’s legislature is required to make “adequate and reasonable appropriations” to its entire unified judicial system, excluding municipal and probate courts.^[4] Currently, the State’s judicial budget, deemed inadequate by those who work in the judiciary, is being temporarily supported by $35 million dollars of highway money.^[5]  Replacing the funds given to the courts through this highway subsidy will be problematic as Alabama earmarks more of its tax dollars than any other state.^[6]  As a result of these budget deficits, Alabama’s localities are more likely to utilize an offender-funded revenue model.

Since 1977, the State Legislature has passed over 400 local acts instituting various court costs and fees in different counties.^[7]  In 2012, the Legislature, seeking to generate more revenue for the State’s court system, passed another bill raising court costs and fees.^[8]  In addition to the pre-existing docket fees, the bill added a $40 docket fee for criminal cases in circuit, district, and municipal courts.^[9]  Further, the bill also imposed a $35 filing fee on each bond executed, along with an additional bail bond fee ranging from $100 to $450 dollars for misdemeanor offenses.^[10] The bill’s sponsor, Representative Mike Hill, explained, “[i]t’s a user fee. Those that use the court pay for it. We didn’t have to pass it on to the general public.”^[11]  Although initially projected to bring in over $36 million dollars, the increased court costs produced only about half of that amount at the end of the 2013 fiscal year.^[12]

A 2014 study regarding the effects of increased court costs in Alabama found that, “[i]n criminal proceedings, the costs assessed against offenders have risen to a level that can be counterproductive to the ends of justice. . . . The judicial system has become a collection agency, not only for itself but for other branches of government.”^[13]  In 2011, one year before the legislature raised court costs, “local Circuit Clerks and the State’s Administrative Office of Courts collected $166 million in court costs” and fees.^[14]  Of the $166 million collected, more than 40% went to agencies other than the courts (e.g. indigent defense, sheriffs, jails, county general funds, employee pay raises, and even museums).^[15]  Although the majority of this money ($111 million) came from criminal offenders, over 80% of criminal defendants qualify as indigent.^[16]  If an offender falls more than ninety days behind on paying court costs or fees, he or she may have 30% added to the initial amount owed.^[17] Collecting these court costs and fees from indigent criminal offenders has proved to be unrealistic, with large outstanding debts remaining.^[18]  Moreover, a court generally makes little effort to determine whether an offender is indigent.^[19]

In Birmingham’s Municipal Court, a second-degree possession of marijuana charge^[20] carries severe consequences. Under this charge, a person found in possession of a single marijuana cigarette may be filtered through a pre-trial diversion program,^[21] referred to as “Drug Court.”  The benefit of this program is that, upon successful completion of the program, the charge is dismissed.[22] However, the program itself is expensive and burdensome. Under this program, the offender is required to pay $1,200 for the Drug Court fee, around $126 in court costs, and a $285 state fee, totaling $1,611.00.^[23] In addition to paying the $1,611.00, an individual must submit to drug testing twice a month, complete fifty hours of community service, and attend educational classes.^[24]  If an offender is ineligible for pretrial diversion or decides against it, he may instead enter plea of guilty or not guilty.  If he pleads guilty he may pay up to $500 in fines (in addition to $411 in court costs), receive up to 180 days in jail, and be forced to participate in in a different rehabilitative program with its own set of fees and costs.^[25]  Moreover, if an offender does receive jail time, they are required to pay a “Housing, Maintenance, and [actual] Medical Costs” fee, which shifts the financial burden associated with the defendant’s incarceration to the convicted defendants.^[26] Housing and maintenance can cost an individual up to $20 per day, not including any costs for medical treatment received.[27]

Former President Jimmy Carter once said, “[p]enalties against a drug should not be more damaging to an individual than the use of the drug itself, and where they are, they should be changed. . . . nowhere is this more clear than in the laws against possession of marijuana.”^[28] In February of this year, a bill was introduced to Alabama’s Legislature seeking to change the State’s marijuana laws.^[29]  If passed, the bill would reclassify the unlawful possession of marijuana in the second-degree, from a Class A misdemeanor to a violation punishable only by a $250 fine for the first offense, and a $500 fine for any subsequent offense.^[30]

Because the State currently receives large amounts of money from second-degree marijuana possession charges, it is unlikely that this bill will pass.  Municipal courts would not only lose court costs but also the revenue collected from imposing fees.  Under Rep. Mike Hill’s 2012 Bill raising fees for dockets, filing, and bail bonds, $10 of those fees are retained by the municipal court.^[31]  This distribution scheme could shed light on why some municipal courts push specialty court programs (that include their own set of fees and costs) upon offenders.

When the legislature increased court costs and fees, this so-called “user fee” may have saved the “general public” from paying taxes, but it also forced a large number of indigent offenders to pay for court systems and agencies from which the “general public” benefits.  These costs and fees have become an ineffective and unethical stand-in for taxes, forcing some parts of the State’s judicial system to take on the role of collection agency, often at the expense of the State’s most needy.

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^[1] Chris Albin-Lackey, Profiting from Probation: America’s “Offender-Funded” Probation Industry, Human Rights Watch (Feb. 5, 2014), https://www.hrw.org/report/2014/02/05/profiting-probation/americas-offender-funded-probation-industry#page.

^[2] See Id. (discussing common practices in such court systems).

^[3] Id.

^[4] Ala. Const. Art. VI, § 149.

^[5] Public Affairs Research Council of Alabama, PARCA Court Cost Study, 3 (Aug. 2014) https://www.alabar.org/assets/uploads/2015/03/PARCA-Court-Cost-Study-FINAL-3-5-15.pdf.

^[6] See Guide to the Issues: Reducing Earmarks in the State Budget, Alabama Policy Institute (last visited June 28, 2017) http://www.alabamapolicy.org/wp-content/uploads/Reducing-Earmarks-GTI-1.pdf.

(Whereas the average state earmarks about 25% of its tax revenue, Alabama earmarks 88%, leaving only 12% of total state funds available for allocation at the legislature’s discretion.).

^[7] See PARCA supra note 5, at 3.

^[8] Courts—Actions and Proceedings—Fees, 2012 Ala. Laws 535; See also Ala. Code § 12-19-310 (1975).

^[9] See Ala. Code § 12-19-310 (1975).

^[10] Kim Chandler, Alabama Legislature Approves Increase in Court Fees, Alabama Local News (May 17, 2012), http://blog.al.com/spotnews/2012/05/legislature_approves_increase.html.

^[11] Id.

^[12] PARCA, supra note 5, at 3.

^[13] Id.

^[14] Id.

^[15] Id.

^[16] Id.

^[17] Id.

^[18] PARCA at 3-4.

^[19] Human Rights Watch, supra note 1, at 39.

^[20] Ala. Code § 13A-12-214 (1975).

^[21] See. Ala. Code § 12-23-5 (1975) (allowing individuals who meet certain criteria to defer prosecution against them and seek treatment for his or her substance abuse).

[22] Id.

^[23] Municipal Court Fee Chart, City of Birmingham, Municipal Court, Alabama (2013) (on file with author).

^[24] See Pre-trial Diversion packet, City of Birmingham Municipal Court, Alabama.

^[25] Statement of Rights to Defendant, City of Birmingham Municipal Court, Alabama, https://www.birminghamal.gov/wp-content/uploads/2015/06/Statement-of-Rights-to-Defendants.pdf.

^[26] Unified Judicial System Form MC-17, Distribution Schedule of Costs, Fees, and Fines in Municipal Courts (Rev. June 26, 2014).

[27] Id.

^[28] Eric Blumeson & Eva Nilsen, No Rational Basis: The Pragmatic Case for Marijuana Law Reform, 17 Va. J. Soc. Pol’y & L. 43, 62 (2009).

^[29] 2017 AL H.B. 269.

^[30] Id.

^[31] Courts—Actions and Proceedings—Fees, 2012 Ala. Laws 535; See also Ala. Code § 12-19-310 (1975).