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Michael L. Vander Giessen

Excerpted from: Michael L. Vander Giessen, Legislative Reforms for Washington State's Criminal Monetary Penalties, 47 Gonzaga Law Review 547 (2011-2012) (232 Footnotes)


Balancing the present racial and ethnic disparities in Washington's criminal justice system requires state legislators to carefully assess contributing factors and seriously consider sentencing reforms. One contributing factor can be found in Washington's laws governing criminal monetary penalties, known as legal financial obligations Many have criticized LFOs as creating de facto debtors' prisons that disproportionately impact racial and ethnic minorities. These critics have also identified potential reforms but offered little practical guidance on how to implement them in Washington. As a complement to their work, this note offers a discussion draft of proposed legislation. Specifically, this note proposes that the Washington State Legislature alleviate the negative effects of LFOs by enacting legislation with four results: first, structuring the amount of nonrestitution LFOs to reflect the seriousness of the offense and the offender's ability to pay; second, repealing the interest accrual on nonrestitution LFOs; third, reducing the annual interest rate on restitution LFOs from twelve percent to six percent; and finally, empowering the sentencing court to modify or convert nonrestitution LFOs when the offender's financial circumstances change.

In Part II, this note explains the current law on LFOs and the challenges these standards present for criminal offenders and their families, especially racial and ethnic minorities. Part III explores the various historical responses to these problems, including the issues that have been litigated, the policy recommendations that have been made, and the legislative action that has resulted. Part IV proposes significant changes, explains their underlying policies, and considers how they would fit in with existing law. Part V concludes this note with a call for a comprehensive legislative response. The appendix sets forth a discussion draft of the proposed legislation.

II. Legal Financial Obligations and Their Adverse Impacts

An LFO is a debt arising from a superior court order to pay money in connection with a criminal case. Legal financial obligations include restitution, fines, fees, and costs. Restitution compensates crime victims for injury or damage, while fines penalize and deter criminal conduct. Fees and costs, on the other hand, reimburse the government's criminal justice expenditures. Additionally, restitution and fines are context-specific and vary to fit the particular wrongdoings or consequences involved. For example, Washington sentencing courts may, depending on the circumstances, order restitution up to double the amount of injury or damage. Courts may also impose fines up to $1000 for misdemeanors, $5000 for gross misdemeanors, $10,000 for class C felonies, $20,000 for class B felonies, and $50,000 for class A felonies. By contrast, fees and costs are more general in application and reflect an increasingly common policy determination that governments should privatize overheads by charging offenders for their involvement in the criminal justice system.

To that end, Washington maintains one of the longest lists of fees and costs imposed on criminals in the United States. This list includes confinement costs, emergency response fees, bench warrant costs, extradition costs, crime lab analysis fees, public defender fees, deferred prosecution fees, jury fees, judgment and sentence fees, DNA database fees, local drug fund fees, and annual surcharges on unpaid LFOs. The future may bring even more fees and costs as Washington struggles to fund its judiciary. In addition to these fees and costs, state law also mandates that offenders pay a victim penalty assessment of $250 for misdemeanors and $500 for gross misdemeanors and felonies. On top of what they pay the courts, offenders must also pay probationary and correctional departments for the costs of probation, parole, or community custody.

Some LFOs may be ordered where the defendant is not actually convicted. However, most LFOs are ordered at sentencing along with other punishments, such as jail time, probation, community service, or treatment. Currently, sentencing courts may impose many LFOs without determining whether offenders are able to pay. Once a court imposes LFOs, the offender must be set up on a monthly payment plan. Interest begins accruing on the date of conviction at an annual rate of twelve percent. Courts cannot defer this interest accrual during the period of incarceration. Further, LFOs and their interest cannot be discharged in bankruptcy. For offenses committed after June 30, 2000, the sentencing court may retain jurisdiction and enforce the judgment until the obligation is completely satisfied, regardless of the statutory maximum for the

Once offenders get out of jail, they may apply for a waiver or reduction of the interest they have accrued on their LFOs. In 2011, Washington enacted legislation to make it easier for offenders to obtain this form of relief. Under the new standards, an offender must show a hardship to obtain a waiver of the interest that accrues during incarceration. For the interest that accrues after release from confinement, the offender must show a significant hardship. He or she must also have made at least fifteen payments during an eighteen-month period. The interest on restitution, however, may not be waived, and may only be reduced if the offender pays the full principal.

Under some circumstances, offenders may be jailed for failing to pay their LFOs. To impose that sanction, the sentencing court must find willful nonpayment or a lack of sufficient good faith efforts to pay, because it is unconstitutional to imprison individuals solely for their indigence. In practice, however, this standard is poorly applied and courts often order offenders to serve jail time when they are, in fact, too poor to pay their LFOs. This reality has led many to criticize criminal monetary penalties as creating de facto debtors' prisons. These criticisms are compounded by the high number of offenders who are bound by LFOs. In total, approximately 114,000 Washingtonians owe LFOs to the state. Collectively, those individuals are responsible for 450,792 LFO accounts. King County alone holds 116,498 LFO accounts, whereas Pierce County holds 73,314 and Spokane County holds 33,331. In dollar amounts, King County residents owe an estimated $500 million compared to the $125.5 million Spokane County residents owe.

Indeed, a vast percentage of offenders incarcerated in Washington have LFOs to pay. For these individuals, the interest on LFOs is one of the biggest impediments to reentry because it can turn an otherwise modest obligation into a lifelong burden. Estimates show that, in Washington, the mean LFO assessment for a single conviction is $2540 and the median is $1347. Add the additional LFOs assessed by probationary or correctional departments and multiple convictions, and most offenders owe around $7234. At that level, and with the accumulation of interest, offenders who pay fifty dollars per month will still have debt thirty years later. Offenders who can afford $100 per month will pay off their LFOs in just over ten years. But unfortunately, the majority of offenders are too poor to afford this amount. As a result, most LFOs grow rather than shrink in the first few years after release from confinement. Over time, LFOs and their interest exacerbate poverty by reducing available income and limiting access to employment, credit, transportation, and housing. These effects, in turn, increase revocation and recidivism rates, keeping offenders embroiled in the criminal justice system. As with other collateral consequences of crime, the adverse impacts of LFOs reverberate throughout family and social networks. They also hit minority groups harder than other populations.

It is now well recognized that Washington's criminal justice system suffers serious problems of racial and ethnic bias. In this context, LFOs have had a profoundly unfair impact on persons of color. This may be due in part to the fact that racial and ethnic minorities are more likely to incur LFOs because they are disproportionately represented in Washington's criminal justice system. Yet the issue is much more complicated than that. Even accounting for other pertinent legal factors, Hispanics receive significantly greater LFO assessments than whites. This is especially true where Hispanics are convicted of drug crimes because, as data show, those crimes fit stereotypes regarding persons of color. Thus, in these situations, the identity of the defendant and the type of the offense combine to produce higher LFO assessments. But stereotypes about persons of color play a role in the sentencing of whites as well. For example, whites convicted of drug crimes in counties with higher black or Hispanic populations receive higher LFO assessments than whites convicted of other crimes. Sociologists suggest these increased penalties result from the racially or ethnically charged stigmas that commonly accompany drug crimes--stigmas that affect not only defendants whose ethnicity is consistent with the stereotype in question, but all defendants convicted of racially or ethnically stigmatized

In response to these and other problems surrounding LFOs, some advocates, judges, and legislators have taken steps toward reform, with various results. The following section outlines these efforts and evaluates present prospects for reform.

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. Executive Editor, Gonzaga Law Review; J.D. candidate, Gonzaga University School of Law, expected 2012; B.A., Whitworth University, 2008.