An old expression says that if a crime is punishable by a fine, it’s only illegal for the poor. That idea can be very problematic in cities like San Francisco, Los Angeles, and San Diego, where there is such a massive disparity between the incredibly rich and the incredibly poor. Under traditional penalty structures, the rich can live by a different set of rules, shrugging off a $50 fine that could bounce the checking account of someone working at minimum wage. Some countries, like Finland, have worked around this problem by implementing an income-based fine system.
But could the US implement court fees and fines based on an individual’s income rather than a flat penalty like we use now? Attorney Peter Liss says it could happen in America.
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What Did The People Vs. Duenas (2019) Decide?
In the 2019 ruling of The People Vs. Duenas, the Second Appellate District Court of California determined that requiring an indigent person to pay a fine is a violation of the 14th Amendment’s Due Process Clause. This case was filed when Velia Duenas, an unhoused mother of two, had her license suspended after she could not pay off fines related to juvenile citations.
She continued to drive and was given three misdemeanor convictions for driving on a suspended license, and sent to jail for 141 days. After her release, she was again charged for driving with a suspended license and was sentenced to 36 months of summary probation and $300 in fines. Because she couldn’t pay the penalties, she was sentenced to another nine days in jail and given another $220 in court fees and fines. The court refused to waive these fees, ruling that they were mandatory under state law.
While the fines were not meant to be punitive, the appeals court ruled that they were still punishments when applied to those unable to pay them —as such, they can violate a defendant’s constitutional rights. The judge ruled that judges must waive court fees for those who would be unfairly burdened by them and avoid implementing punitive fines unless the prosecution can show the defendant can pay them.
Although the Duenas ruling was overruled in some Appellate District Courts, it remains the law of the land in other districts. As a result, courts in San Diego, Orange County, Los Angeles, and other counties outside of the Sixth District must hold a hearing to determine a defendant’s ability to pay fines and fees before the court implements them.
Even before the Duenas ruling, “there’s a long tradition of San Diego judges deleting fines based on a defendant’s inability to pay,” says Mr. Liss, “which just seems fair and unless explicitly told otherwise, I think they will continue to do so.” Of course, San Diego is not the only part of the country attempting to lift the unfair burden of court fines on low-income individuals.
More Equality in Court Fines
Many cities and states in America are working on reforms to ensure the burden of fines isn’t disproportionately placed on the impoverished. Organizations like the Fines and Fees Justice Center are working to make the justice system more equitable by reducing financial penalties for lower-income individuals.
This Medium article details many cities trying to reform their fine systems, including:
- Durham, North Carolina: After analyzing parking ticket data from the past four years, the city determined that unpaid citations and late fees were disproportionately issued to residents in low-income Black and Hispanic neighborhoods. The city went on to waive late fees for first-time parking citations given to low-income residents and create interest-free payment plans for individuals who could not pay tickets immediately.
- King County, Washington: After evaluating license suspension data in a part of downtown Seattle, officials discovered that in an area where 50% of residents were people of color, almost half of the residents old enough to drive had a suspended driver’s license. As a result of their findings, the county started working to stop suspending driver’s licenses for those who fail to pay court fees or appear in court.
- Pheonix, Arizona: The city reinstated the driver’s licenses of 8,000 drivers who agreed to income-adjusted payment plans. Since these residents could then drive to work, they could obtain higher-paying jobs, which boosted the group’s wages by $87 million and increased the city’s GDP by $150 million.
San Francisco took things a step further by creating a continual government-operated project designed to assess and reform fines, fees, and penalties impacting low-income individuals and minority communities. The San Francisco Justice Project has reduced or eliminated millions in fines, cleared license holds for 88,000 people who missed traffic court, and eliminated $33 million in debt. It also stopped the practice of charging prisoners to make calls from local jails.
Income-Based Court Fines
Unfortunately, helping low-income residents disproportionately affected by fines only addresses part of the problem. For the justice system to be truly equitable, the rich must be affected by penalties just as much as anyone else. Otherwise, these fees only enforce the laws for those who can’t easily afford them.
Oklahoma is the only state in the country to implement income-based fines (often called day fines, structured fines, or unit fines). However, these are applied at the judge’s discretion and only in cases involving suspended sentences. Those familiar with the Oklahoma justice system say they are almost never used.
While the US has hesitated to utilize day fines, other countries have embraced them. Fines are paid in per-day increments based on the severity of the crime. The specific amount is based on a standardized portion of the individual’s daily income. For example, a person earning $100 a day might have to pay $4 per day for 10 days to pay off a traffic ticket, for a total of $40. Alternatively, a person earning $10,000 a day may have to pay $400 for 10 days to pay a ticket for the same offense, totaling $4,000.
Countries using a day fine system to implement fees based on income include:
- Germany: only uses the fines for criminal offenses, not minor infractions like traffic tickets.
- Denmark: uses day fine systems for criminal offenses and some traffic infractions, like DUI and driving without a license, but uses standardized fines for other traffic infractions. However, even standard financial penalties can be reduced by half for low-income individuals and minors under 18.
- Finland: most fines are issued based on a sliding scale.
- Macau: implements criminal fines between 50 and 10,000 patacas for between 10 and 360 days.
- Sweden: uses both traditional fines and day fines and has a maximum amount for income-based fines.
- Switzerland: where day fines are used in place of short-term jail sentences for minor crimes
Could Day Fines Be Used in America?
Legally, nothing stops American courts from administering fines based on the offender’s income. It’s not explicitly prohibited by the Constitution as long as the excessive fines clause is not violated, which could be done by setting a maximum fine. Day fines could be a good way to make the American justice system more equitable. Oklahoma’s implementation of such a program proves that it is legal under the Constitution, even if the state’s courts don’t actually utilize it.
While none of the programs remain in use, in the 1990s, many cities ran pilot programs to establish the practicality and fairness of implementing income-based court fines. The Justice Department notes that Maricopa, AZ and Des Moines, IA created the strongest systems to scale up offenses based on the severity of the offense and the offender’s income. They noted that their programs would increase the ability of officials to collect more fines compared to more traditional methods.
Attorney Peter Liss says that while implementing a day fine system in the US is possible, the logistics could be challenging. “Practically, to have income-based tiers of fines might be laborious and require financial disclosure forms for each defendant,” he notes, explaining that this could result in “a confusing fine structure.”
Pros and Cons
There are many benefits and drawbacks to using an income-based system for fines. Here are some things to consider when evaluating whether day fines would be better or worse than the current system:
| Pros | Cons |
| Ensures all offenders feel the impact of fines and fees equally, rather than leaving the burden to weigh most heavily on the indigent. | Implementing day fines can be complicated, particularly because wealthy individuals tend to have greater monthly expenses, so payment amounts must account for factors like mortgage payments, utilities, loans, child support, and more to ensure no one is ordered to pay more than they can afford. |
| Could reduce crime rates, as studies show 20% of low-income offenders who cannot pay off a traffic ticket have resorted to more serious crimes to pay the infraction. | Day fines rely on offenders being honest about their income and could result in the creation of a new category of fraud cases. |
| Indigent defendants do not need to choose between food, housing, and paying court fines. | Defendants with illegal income or assets would likely underpay fines, as these factors would be ignored. |
| Fewer low-income drivers will lose their licenses, ensuring they will not need to choose between driving without a license or losing their jobs. | Without a maximum limit, wealthy offenders can be sentenced to excessive fines that violate the Constitution. For example, the largest traffic ticket of all time was issued in Switzerland and cost an absurd $290,000. |
| Estimates show that even with maximum caps on fines, government revenue increases due to the wealthy paying more and cities needing to pay less to enforce fines, as those who can’t pay current penalties are more likely to pay smaller fines. | Cities may earn less from parking fines and traffic tickets, as all citizens would be less likely to commit these offenses. |
| Studies show that wealthy drivers are more likely to violate driving laws because they are not affected by traffic tickets as much as middle- or lower-income offenders. |
Jeff Bezos and His Giant Fence
A perfect example of this problem is a story circulating the internet claiming that Jeff Bezos’ 20-foot-tall hedge fence violates Beverly Hills laws on fence heights —and he ignores the law and instead pays $12,000 in fines yearly. As much as this story captures the issue of allowing the ultra-rich to skirt the law as long as they pay the fine, there’s no evidence it is factual.
While it is true that his hedges exceed the maximum height limit set by the city, it is possible the fence was grandfathered in, as it was already in place before Bezos moved in. Alternatively, an estate variance could grant him the right to have such a large hedge. Though the Amazon founder could certainly afford to pay $12,000 a year to upkeep his massive hedges, there’s no proof he does.
What to do When You Can’t Pay a Court Fine
While courts may not use structured fines at this time, if you simply can’t afford to pay court fees or fines, a lawyer may be able to help you. If you need help challenging a fine in San Diego County, please call attorney Peter M. Liss at (760) 643-4050.
