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October 16, 2015

How to reform the criminal courts charge?

It seems clear that the government will reform the criminal court charge but its not clear what way they will go – will they abolish it completely, means test it or give judges discretion as to whether they charge it?  I would advocate scrapping it altogether (as would the Howard League) and there are some relevant history lessons.

Only just over a year ago the fatal shooting of a black boy by a white police officer in Ferguson, Missouri led to mass riots in the city.  Investigations into the unrest focused on the police who were found to be discriminating against African-Americans and applying racial stereotypes, in a “pattern or practice of unlawful conduct.”  But there was also considerable criticism of the courts, and the way court fines had inspired mistrust of the justice system. Brendan Roediger, an assistant professor at the Saint Louis University School of Law “described a court system in Ferguson and select areas of St. Louis that function primarily as a revenue generator. “They don’t want to actually incarcerate people because it costs money, so they fine them,” he said. “It appears to be a blatant money grab.”  Courts were seen as a revenue generator so lucrative that fines and forfeitures came to represent 20% of the city’s operating revenue. In March this year the US Department of Justice issued a report on law enforcement in Ferguson which concluded that “law enforcement practices are shaped by the City’s focus on revenue rather than public safety needs.” Perhaps the lesson is that if people are to have faith in the justice system, that system needs to be fair in the way it imposes costs, fees and charges.

The history of unit fines suggests that means testing court charges is very risky.  Under the 1991 Criminal Justice Act court fines were imposed according to a mathematical formula – the seriousness of the offence was measured on a unit scale of one to 50.  A magistrate assessed the defendant’s disposable income on a scale of £4 to a maximum of £100 a week. The number of units was then multiplied by the defendant’s disposable income to decide the fine amount, making the maximum possible total £5,000.

But the scheme was criticised for giving paltry fines to the poor and disproportionately large fines to the moderately wealthy. For example, in West Yorkshire, two men convicted over a street fight paid £640 and £64 respectively, based on their income brackets.  In another instance magistrates fined a man £1,200 for dropping litter after they assessed him as meeting the top income rate because he had failed to attend court, or supply his financial details. The fine was later reduced to £48 on appeal. The government abandoned unit fines in 1993 but collective memory appeared to fail, since New Labour proposed means related fines in 2005.  As Marcel Berlins wrote “We want any fine imposed to be meaningful to the offender, to sting a little, to act as a deterrent or punishment. Clearly, a few hundred quid doesn’t have that effect on a moderately well-off person. Equally, a fine of thousands for a trivial crime offends another basic principle – that a penalty should not be disproportionate to the seriousness of the offence”.  For fine read court charge.

Currently judges do have discretion to moderate all fines and charges – except the criminal court charge.  A poor person ends up with a different court bill to someone very wealthy.  But the difference is not huge because justice needs to be even handed.  Unit fines and the Ferguson fine system were not even handed.  They were perceived to discriminate against particular groups – wealthy people and African-American poor citizens.  Whatever the government does with criminal court charges, it needs to be even handed and remove the huge financial incentive to plead guilty.