Pressing Charges: Criminal Fees and the Excessive Fines Clause

By ANNEMARIE FOY. Full Text.

Millions of people owe money to the government as a consequence of a criminal charge. But while some of that debt is tied to fines or restitution, much of it is levied as fees, or payments owed to the government for the administration of a defendant’s criminal proceedings. Criminal fees can include costs assessed for pretrial detention, a public defender, a jury, a court appearance, filing a document, electronic monitoring, and more. They are assessed at every stage of a criminal case and for all types of offenses. While state and local governments claim that criminal fees are necessary to fund the administration of justice, most defendants cannot pay, bringing a slew of additional consequences.

This Note suggests that the Excessive Fines Clause of the Eighth Amendment, recently revived by the U.S. Supreme Court in Timbs v. Indiana, prohibits the assessment of criminal fees. Financial penalties imposed as punishment for a criminal charge, without regard for the cost incurred by the government or the defendant’s ability to pay, are both punitive and excessive. Many fees infringe on criminal defendants’ other constitutional rights—the very problem the Excessive Fines Clause intended to remedy.

Federal and state courts have been slow to meaningfully implement Timbs. This Note critiques those courts’ post-Timbs decisions and advocates for a different approach to Excessive Fines Clause claims. In the meantime, this Note proposes that state legislatures take up the mantle of reform to bridge the gaps left by the courts. Some state legislatures have already begun eliminating criminal fees over the last few years without undercutting their budgets. This Note surveys and compares state laws and offers suggestions on implementation. By continuing to identify and remove excessive fees, states can prioritize the fair administration of justice, from policing to prosecution.