End Taxation by Prosecution

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State law-enforcement regimes need to stop relying on prosecution fees for funding.

NRPLUS MEMBER ARTICLE A sk most people what prosecution has to do with taxes, and you’ll be lucky to get an answer this side of Al Capone. Admittedly, other than the occasional tax cheat, the two do not appear to have much in common. So it may come as a shock to learn that local governments across this country not only expect prosecutors to generate revenue but also rely on them to make ends meet. It is taxation by prosecution, and it needs to stop.

The first half of this tax plan is as audacious as it is straightforward. Nobody wants a criminal record, let alone to find themselves in jail for any stretch of time. Meanwhile, every state has dozens of low-level, victimless crimes on the books — think driving with a suspended license and disorderly conduct — that prosecutors regularly get rid of without a conviction or public fanfare. Savvy government budget officials put two and two together and saw an opportunity to raise revenue.

The result is a network of fees in which defendants pay for the privilege of prosecutorial forbearance. One of the most common methods entails paying to take part in a diversion program that erases the criminal charges. At hundreds or even thousands of dollars, the cost of such programs often far exceeds anything reasonably attributable to whatever services or programming the individual is required to complete. Plus, in many instances, prosecutors dismiss charges outright on payment of “court costs” or other colorfully named fees without the need for the defendant to take further action.

Those whose crimes or pocketbooks do not allow for such forbearance simply hit the other side of the revenue-generation buzzsaw. Plea bargains and sentencings generally lack the implicit financial quid pro quo present in diversion or dismissal. But the government nevertheless manages to insert money into the equation by attaching an assortment of fines and fees to virtually every conviction. And, just like that, a prosecution can become profitable.

Which does not, on its own, push these fines and fees into the realm of taxation. Monetary sanctions have a legitimate place in the criminal-justice system. Appropriately used, they can deter and make amends for wrongdoing. Indeed, to the extent that individual prosecutors think about fines or fees, these considerations tend to be the reason why. But an insatiable revenue motive has long since surpassed criminal-justice concerns for officials with the power to set fines and fees.

How do we know that money rather than justice is the aim? The government does a woefully inadequate job of hiding its intent. In Oklahoma, for example, the legislature deliberately underfunds its district-attorney offices, counting on prosecutors to collect as much as half their operating budget through diversion and other fees. Other states sever the connection to the justice system entirely, using the money from fines and fees to supplement general funds and pay for other parts of the government.

This form of taxation in all but name does not work well for anyone involved. The sizable number of Americans charged with these low-level, irregularly enforced offenses end up paying costs that bear little relation to their transgressions. Prosecutors feel budget pressures that add uncertainty to long-term planning. This can stymie prosecutorial goals by reducing defendants’ ability to participate in effective diversion programs or get their lives back on track after a conviction. Even the officials responsible for these costs can become trapped, wary of adjusting laws and priorities in ways that undermine the often unnecessary enforcement of the low-level crimes that shore up so many budgets.

It is not too late for jurisdictions to pull themselves out of this quagmire. Whatever revenue they can raise in this manner is just not worth the costs. Instead, legislators and other officials in charge of budgets must downsize these fines and fees so that they once again reflect the needs of justice rather than those of government coffers.

Honest tax policy may force tougher discussions of government priorities and spending, but constituents deserve no less. And, in the end, if officials cannot make the case to fund the criminal-justice system at its current dimensions, then perhaps it’s time to cut it down to size — along with the hidden taxes that support it.

Lars Trautman is a senior fellow of Criminal Justice and Civil Liberties at the R Street Institute and a former assistant district attorney.

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