II 116th CONGRESS 2d Session S. 3375 IN THE SENATE OF THE UNITED STATES March 3, 2020 Mr. Schatz (for himself, Mr. Wyden , Mr. Jones , Mr. Blumenthal , and Mr. Merkley ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend the State Justice Institute Act of 1984 to provide technical assistance and training to State and local courts to improve the constitutional and equitable enforcement of fines, fees, and monetary bail, and for other purposes.

1. Short title This Act may be cited as the State Justice Improvement Act . 2. Findings; purpose (a) Findings Congress finds the following: (1) The Supreme Court of the United States has repeatedly held that the government may not incarcerate an individual solely because of the inability of the individual to pay a fine or fee. (2) In 2019, the United States Court of Appeals for the Fifth Circuit ruled that it is unconstitutional to imprison people for failing to pay fines and fees without inquiring into their ability to pay. The Fifth Circuit also ruled that it is unconstitutional for judges to determine ability to pay when court debts help pay court budgets. (3) Under section 3142 of title 18, United States Code, Federal judicial officers may not impose a financial condition that results in the pretrial detention of an individual. (4) In 2017, a report by United States Commission on Civil Rights evaluated evidence that— (A) 47 states increased their fines and fees in recent years, including fines and fees imposed on juveniles; (B) in Virginia, 1 in 6 drivers had license revoked as a result of an inability to pay court fines and fees; (C) in New Jersey, 42 percent of suspended drivers lost their jobs as a result of the suspension; (D) in the 50 cities with the highest proportion of revenues from fines, the median size of the African-American population in each city was greater than 5 times the median in the United States; (E) in Washington, Latinos received higher fine assessments than non-Latino Whites for similar offenses; (F) 10 counties in California detained approximately 700 people per month for an average of 3 days as a result of a failure to pay and driving with a suspended license; and (G) according to the Department of Justice on the investigation of the Ferguson Police Department, revenue collection, not public safety, was the primary impetus behind the collection of fines and fees. (5) There is no clear evidence that fines and fees are an effective crime deterrent. (6) Defendants released from custody with no financial penalty return to court at the same rate as defendants released on financial bond. (7) The burden of fines and fees is disproportionately shouldered by low-income communities and communities of color, which in turn aggravates and perpetuates poverty and racial inequalities. (8) Cities with larger Black populations fine residents more on a per capita basis and are more reliant on fines. A 1 percent increase in a Black population is associated with a 5 percent increase in per capita revenue from fines and a 1 percent increase in share of total revenue from fines. (9) In addition, data on the extent to which individuals are jailed or otherwise penalized because of their inability to pay fee-only offenses are insufficiently developed, preventing a full picture of the pervasiveness of targeted fees, as well as the repetitive impact on individuals from both low-income communities and communities of color. (10) Decisions regarding pretrial release or detention adds financial stress to individuals unable to pay monetary bail and the jails holding those unable to pay. (11) Individuals gave up necessities like rent, food, medical bills, car payments, and child support, in order to pay down their court debt. (12) Thirty-eight percent of people surveyed committed a crime to pay off their court debt. (13) Driver’s licenses are often suspended automatically when cases are transferred to private collectors and are not restored until debts are paid in full. (14) Thirty States continue to require payment of all legal financial obligations before voting rights are restored, effectively disenfranchising individuals because of an inability to pay. (15) Many jurisdictions across the country rely on fines and fees as a primary revenue source. (16) A 2019 analysis of fine revenues found that— (A) fines are a critical source of funding, at times accounting for more than half of all general revenues; (B) fines and fees account for more than 10 percent of general fund revenues for nearly 600 jurisdictions, and in at least 284 of those, the share exceeded 20 percent, while another 80 governments reported even higher fines accounting for more than half of general revenues; (C) annual revenues exceeding $100 for every adult resident, while 363 exceeded $200 per adult in all the governments analyzed; (D) the States with the highest fines and fees revenue are Arkansas, Georgia, Louisiana, New York, Oklahoma, and Texas; and (E) jurisdictions where fines and forfeitures accounted for more than 20 percent of general fund revenues recorded a median household income of only $39,594. (17) The dependency on fines and fees creates a harmful incentive for courts to levy fines and fees on indigent individuals regardless of the severity of the crime. (18) However, some jurisdictions spent more than the revenue they raised collecting fees, therefore losing money through this system. (19) In some jurisdictions like New Orleans the cost of incarcerating individuals unable to pay fines, fees, and monetary bail exceeded the revenue generated from those practices. (20) Some jurisdictions in Texas and New Mexico spent 41 cents of every dollar of revenue they raise from fees and fines on in-court hearings and jail costs alone. (21) In almost every State and the District of Columbia, juvenile courts impose court costs, fines, and fees on youth, their families, or both. These costs may increase recidivism, increase the potential of future jail or prison time, exacerbate racial inequality, and increase the economic and emotional distress of low-income families. (22) Imposing fines and fees on minors and their families is ineffective as a revenue-generating measure, often because minors in the criminal justice system come from indigent families. Imposing these fines and fees increases recidivism and economic and emotional hardship on families. (b) Purpose The purpose of this Act is to create a grant program to provide technical assistance and training to State and local courts to— (1) improve the constitutional and equitable enforcement of fines, fees, and monetary bail; (2) improve practices regarding the use of fines and fees and their equitable enforcement when used; and (3) collect data to better understand the research and best practices of State and local courts on a Federal level. 3. Definitions Section 202 of the State Justice Institute Act of 1984 ( 42 U.S.C. 10701 ) is amended— (1) in paragraph (7), by striking and at the end; (2) in paragraph (8), by striking the period at the end and inserting a semicolon; and (3) by adding at the end the following: (9) constitutionally adequate notice means a citation or summons that adequately informs an individual of— (A) the precise offense with which the individual is charged; (B) the amount currently owed by the individual and other possible penalties; (C) consequences for nonpayment; (D) the method and means for accepting payments; (E) the date of any court hearing; (F) the availability of alternate means of payment; (G) the rules and procedures of the court; (H) the rights of the individual as a litigant; and (I) whether the individual is required to appear in court in person; (10) fees — (A) means monetary fees that are imposed for the costs of fine surcharges or court administrative fees; and (B) includes additional late fees, payment-plan fees, interest added if an individual is unable to pay a fine in its entirety, collection fees, and any additional amounts that do not include the fine; (11) fines means monetary fines imposed for punishment; (12) monetary bail means a payment of money or purchase of a surety bond to obtain the release from jail; and (13) surcharge means a monetary amount added to a fine as a flat amount or a percentage. . 4. Constitutional enforcement of fines and fees and monetary bail (a) Duties of the Institute Section 203(b) of the State Justice Institute Act of 1984 ( 42 U.S.C. 10702(b) ) is amended— (1) in paragraph (3), by striking and at the end; (2) in paragraph (4), by striking the period at the end and inserting ; and ; and (3) by adding at the end the following: (5) assist State and local courts in the constitutional and equitable enforcement of fines and fees. . (b) Purposes of grants (1) In general Section 206(a) of the State Justice Institute Act of 1984 ( 42 U.S.C. 10705(a) ) is amended— (A) in paragraph (6), by striking and at the end; (B) in paragraph (7), by striking the period at the end and inserting a semicolon; and (C) by adding at the end the following: (8) provide technical assistance and training to State and local courts to develop and implement best policies and practices for the constitutional and equitable enforcement of fines and fees that incorporate guidance that— (A) courts should not incarcerate or issue an arrest warrant for an individual for the nonpayment of a fine or fee without first conducting an ability-to-pay determination and establishing that the failure to pay was intentional; (B) courts should consider alternatives to incarceration for defendants who are currently unable to pay fines and monetary bail; (C) courts should not condition access to a judicial hearing on the prepayment of a fine or fee or a promise of future payment of a fine or fee; (D) courts should provide constitutionally adequate notices and counsel in cases in which a fine or fee will be imposed; (E) courts should not initiate driver’s license suspension procedures for nonpayment of a fine or fee; (F) if courts choose to issue an arrest warrant or suspend a driver’s license as a means of coercing an individual to pay a fine or fee owed to the court, courts should not do so if the individual has not been afforded constitutionally adequate procedural protections; (G) courts should determine the ability to pay of an individual at sentencing prior to determining a constitutional and equitable fine and fee; (H) courts should reduce and waive fines and fees if the court has discretion in cases where the imposition of fines and fees would be unconstitutional and inequitable or cause undue hardship to the individual; (I) courts should avoid adopting mandatory fines and fees for misdemeanors and traffic-related and other low-level offenses and infractions; (J) courts should grant judges the authority and discretion to modify sanctions after sentencing if the circumstances of the defendant change, including that the ability of the defendant to pay a fine or fee becomes a hardship; (K) courts should adopt education requirements for judges and court personnel on issues related to all relevant constitutional and procedural principles relating to fines and fees; (L) courts should not impose a fine, fee, or any other penalty for the participation of an individual in community service programs or other alternative sanctions; (M) if courts utilize community service programs or alternative service sanctions, best practice and standards for those programs should be used, including fair wage attribution, caps on number of hours performed, and permissible activities of service; (N) courts should not order or extend probation or other court-ordered supervision exclusively for the purpose of collecting fines, fees, or costs; (O) courts should not charge interest on payment plans entered into by a defendant, respondent, or probationer; and (P) courts should consider the use of community service credits such as completing community service hours, domestic violence counseling, and drug treatment programs, as an alternative to payments; and (9) provide technical assistance and training to State and local courts to develop and implement best policies and practices for the constitutional enforcement of monetary bail that incorporate guidance that— (A) courts should not employ monetary bail or bond practices that cause defendants to remain incarcerated solely because they cannot afford to pay for their release; (B) courts should not impose monetary bail— (i) as prepayment of anticipated fines and fees; or (ii) as a method for collecting past-due fines and fees; (C) courts should eliminate and prohibit the use of monetary bail schedules; (D) courts should impose a monetary pretrial release option if it is the least restrictive pretrial release option available; (E) courts should only detain an individual if there is clear and convincing evidence that the individual poses a serious imminent risk of— (i) a danger to the community; or (ii) flight; (F) courts should safeguard against unconstitutional practices by court staff and private contractors; and (G) courts should not pass the costs of pretrial release and electronic monitoring to the defendant, probationer, or parolee, and if the court determines that electronic monitoring is necessary, any associated costs should belong to the jurisdiction. . (2) Regulations Not later than 90 days after the date of the enactment of this Act, the Executive Director of the State Justice Institute shall promulgate regulations to implement the amendments made by paragraph (1), including— (A) the information that shall be included in an application for funding under section 206 of the State Justice Institute Act of 1984 ( 42 U.S.C. 10705 ); and (B) any other requirements applicable to grantees under that section. (c) Records and reports Section 211(a) of the State Justice Institute Act of 1984 ( 42 U.S.C. 10710(a) ) is amended— (1) by striking The Institute and inserting (1) In general .—The Institute ; and (2) by adding at the end the following (2) Report on fines, fees, and monetary bail (A) In general The Institute shall require that a recipient of a grant awarded for the purpose described in paragraph (8) of section 206(a) shall submit to the Institute an annual report that includes, for the previous 12-month period— (i) the number of new admissions to jail or prison due to failures to pay fines or fees; (ii) the number of new admissions to jail or prison due to failure to appear when the underlying offense is a failure to pay a fine or fee; (iii) the number and type of alternatives considered for defendants who are unable to pay fees and fines; (iv) the number of times a judicial hearing was contingent upon the prepayment of fines and fees, including hearing fees if the court deems the defendant ineligible for a fee waiver; (v) the number of times constitutionally adequate notices were provided to counsel in cases in which a fine or fee will be imposed; (vi) the number of times an arrest warrant or driver’s license suspension was used as a means of coercing an individual to pay a fine or fee owed to the court; (vii) the number of additional fees imposed by the department of motor vehicles to get a driver’s license reinstated or suspension lifted; (viii) the number of times monetary bail practices were used that caused defendants to stay incarcerated due to their inability to pay a fine or fee; (ix) the number of times voter disenfranchisement was used as a result of an individual’s inability to pay a fine or a fee owed to the court; (x) a disaggregation of the data described in this subparagraph by race, gender, and disability status; and (xi) any other additional statistical data that the Director determines should be collected and reported. (B) Report to Congress The Institute shall submit to the Bureau of Justice Statistics and to the Committee on Appropriations and Committee on the Judiciary of the Senate and the Committee on Appropriations and the Committee on the Judiciary of the House of Representatives an annual report on the data submitted under subparagraph (A). . (d) Study (1) In general Not later than 3 years after the date on which grants are first awarded for the purpose described in paragraph (8) of section 206(a) of the State Justice Institute Act of 1984, as added by subsection (b) of this section, the Executive Director of the State Justice Institute shall conduct a study on the effectiveness such grants on the constitutional enforcement of targeted fines, fees, and monetary bail by State and local courts. (2) Report Not later than 180 days after the date on which the Executive Director of the State Justice Institute completes the study under paragraph (1), the Executive Director shall submit to Congress a report on the study and any policy recommendations that the Executive Director determines are appropriate. (e) Authorization of appropriations Section 215 of the State Justice Institute Act of 1984 ( 42 U.S.C. 10713 ) is amended, in the first sentence by striking $7,000,000 for each of fiscal years 2005, 2006, 2007, and 2008 and inserting $27,000,000 for each of fiscal years 2021 through 2026, of which $20,000,000 shall be authorized to be appropriated for grants under paragraph (8) of section 206(a) .