House Corrections committee rethinking probation fees

The Texas House Corrections Committee interim report to the 84th Legislature began with a discussion of excessive fees in the criminal justice system which merits readers' attention. The committee, chaired by Republican state Rep. Jim Murphy, focused on relatively obscure aspects of the system which nonetheless are incredibly important to the people affected by them, both people who must pay and government employees who collect them. On probation, for example:

If someone is on probation, there will be a lot of fees. First, a probationer pays up to $60 a month for supervision. Depending on the crime, there will be program fees for drug education or domestic violence classes. If substance abuse is involved, there will be costs for random urinalysis tests, and perhaps an ignition interlock (for DWI cases). If you have lost your license, which happens with any drug conviction, you will have to take a class to renew that license. Once the class is completed, you will need to go to the Department of Public Safety and pay between $125 and $325 to get your license back.

Larding on court costs

The committee examined various court fees, particularly ones aimed purely at revenue generation:

The 83rd Legislature directed the Office of Court Administration to study the necessity of certain court costs and fees in the state. The report outlined several troubling trends (link added).

Many of the court fees and costs, whether deposited at the state or local level, are not dedicated fees and are simply deposited in the general fund of the state or local government. They are then appropriated at the discretion of the funding body. 

Some of these court fees and costs are used to fund programs outside of and unrelated to the judiciary. Meanwhile, court fees and costs are generally insufficient to cover the cost of funding the judiciary at the local government level, with expenditures for the judiciary oftentimes far surpassing collected revenues for court fees and costs.  

There are hundreds of these fees, with a few dozen of them ending up in state coffers. 

The best known Texas court fees are "consolidated court costs," which run:

Up to $133 for felonies, $83 for misdemeanors, $40 for nonjailable misdemeanor offenses. Ninety percent of collected funding goes to the state for 14 purposes, including; crime stoppers assistance, abused children's counseling, law enforcement and custodial officer supplemental retirement fund, judicial and court personnel training fund, and emergency radio infrastructure account

Many fees are spent in ways which have nothing to do with their ostensible purpose. A $250 DNA fee on sexual assault cases, for example, is split between general state coffers and  the highway fund, with no relationship to funding the activity for which it's named. The committee could have added that this is happening at a time when DNA labs are underfunded and strained trying to keep up which evolving science, not to mention re-testing backlogs of DNA-mixture cases that were evaluated using flawed methodologies. 

Half of the state portion of the fee for "failure to appear" goes into the general fund with no specification that it be used for purposes related to that purpose. A $15 fee paid by bail bondsmen for each surety issued contributes to the state's Fair Defense account and to supplement salaries for assistant prosecutors. (That latter element may be a big, unstated reason some district attorneys dislike bail reform.)

The report added, "There are fees for records management, for juries, for judicial support, for court security, and for indigent defense. Pages and pages of fees. It boggles the mind to read it. Think of what it must be like to live it."

Notably, the committee observed, "Ability to pay these fees often isn't determined until later in the process. When a judge sentences a person to probation, and assesses fees and costs, he or she often has no idea if that person can actually pay. That is often left to the CSCDs, whose officers help the probationer draw up a budget to help them manage their obligations." They added, "In an era when you can find out your credit score for free on the internet, would it be that difficult to determine if a person is indigent prior to appearing before a judge?" Good question!

Relationship between fees and absconding

The interim report included this insightful passage about the relationship between high probation fees and absconding:

Although it may seem simple: pay your fees, attend your programs, etc., real life isn't that way. And for those who lack life skills, real life is challenging in a way that it isn't for those of us who have resources. 

And most of us are still living precariously. An Associated Press Poll indicates that threequarters of people in households making less than $50,000 a year and two-thirds of those making between $50,000 and $100,000 would have difficulty coming up with $1,000 to cover an unexpected bill. And being arrested would definitely qualify as unexpected. 

If someone has been convicted of a minor drug offense (less than a gram of a controlled substance that is not marijuana), there are a number of studies that indicate he or she is likely unemployed and experiencing deficiencies in educational attainment. He or she probably has substance abuse and mental health issues, and could be homeless. One-third of these minor drug offenders are under the age of 25, experiencing all that one might experience in terms of low impulse control and developmental factors. 

If you have resources, you probably take them for granted. These include access to cash, orparents who can help you out with a loan; trusted friends who can give you good advice or a ride when you need one; a permanent home. You have a job, you are educated. These things help to keep you out of trouble. 

If a person without these types of resources is ordered to attend a DWI program, but has no one to drive him to the program (because license revocation is part of DWI), then there are parts of the state where there are only two choices: drive to the program without a license, or forgo the program. Either one is reason to have probation revoked. 

Situations like this can be discussed and dealt with by a probation officer, who is likely to NOT revoke your probation on this technical violation. After all, life happens. But conversations like this are stressful. And standing before a judge is scary. So those without the skills to maneuver the stress see only one option: avoid the problem. Don't show up for scheduled meetings. Unfortunately, that's called absconding, and when the probationer is finally located, he or she will be in a lot more trouble than before.

Incentives for poor 'inadvertently created modern-day debtors prisons'
The committee explicitly recognized that probation fees and obligations have become so onerous they're creating incentives for defendants to choose incarceration over community supervision, even when locking them up serves no purpose from a public safety perspective: "because those who are poor and have no resources choose jail time, we've inadvertently created a modern day debtors' prison," they concluded, adding that the problem had also reached acute stages at municipal courts over Class C misdemeanor offenses, and extending the same criticism to the bail system:

Failure to pay isn't limited to the probation system or the municipal courts. Texas county jails currently detain 40,300 inmates who are awaiting trial, representing over 62% of the entire jail population of the state. The decision about who is released and who is detained before trial is determined primarily by a person's financial resources rather than his or her risk to public safety or likelihood to return to court. The National Association of Counties has found that 60% of the confined population presents a low risk of pretrial misconduct. 

These kind of statistics add to the consensus that being imprisoned for lack of resources is the same thing as making poverty a crime. And although municipal courts and pre-trial detainees weren't officially part of this committee's charge, it is worth mentioning as part of an overall trend. And that trend also contributes to overcrowding county jails, which is mistakenly seen as being caused by state policies.  

Rethinking probation as a payment plan
They concluded that the state should assume more of probation costs, allow more defendants to earn early release from probation through good behavior, and eliminate as many collateral consequences as possible:

Perhaps it is time to think of probation as a payment plan. If you have been given probation for one year, fulfill all of your obligations such as classes and restitution, and discharge six months ahead of time, that's great. However, you should still owe six months of probation fees. 

Conversely, no one should be kept on probation merely because they still owe restitution. If one year of probation is up, and restitution is still owed, then a payment plan should be set up for the restitution. And since that person is no longer on probation, CSCDs should no longer be collecting that restitution. 

During testimony heard by the joint committee, it became clear that many of those convicted of a DWI face uneven sanctions. If someone convicted of a homicide goes on probation for ten years, that person can be removed from probation after a few years if they do not get into further trouble. Not so for DWIs. It makes no sense to keep a DWI on probation if they attend classes, quit drinking, and go several years without further incident. 

A federal program mandates automatic suspension of a driver's license for any drug conviction, including a small amount of marijuana. Getting a license back can cost a lot of money, and Texas has the ability to opt out of the federal program. The state should do so. 

The fee system for probation should not be done away with entirely. In fact, the upcoming session promises to be a difficult one, with agencies encouraged to start looking at possible budget reductions now. Fees have a place in probation, as those who pay for a program are more likely to attend that program. However, when jail time is chosen over probation, the fees are too burdensome. For that reason, the state should start to assume more of this cost, which would likely be less expensive than paying for unnecessary incarceration.

The state should consider allowing a CSCD to receive full state share of misdemeanor probation, but allow for non-report for minor offenses. Consideration should also be given to a system where those charged with Class B misdemeanors complete a class or perform community service rather than complete the full term of probation. This would allow CSCDs to dedicate their time and energies to people with a more intensive level of need. 

The committee posed a provocative, new-to-me idea: "If probationer fees could be collected from individuals after they have completed treatment and achieved employment and housing stability, revocation rates should be lowered." That's a useful, interesting suggestion that makes a lot of sense. However, it's also true, as this section of the report concluded, that "until the state bears a greater burden of the costs of rehabilitating people" and shifts away from regressive probation and court fees, "real reform will be difficult."