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Mildred Bryant is an 88-year-old resident of Pagedale, Missouri, a suburb of St. Louis. In 2015, Pagedale threatened Mildred with 12 municipal code violations for things like not having matching curtains or slats on her home’s windows. 1 She was not alone. With just 3,000 residents in its one square mile, Pagedale wrote more than 32,000 citations between 2010 and 2016. 2 The fines from those citations and related fees accounted for almost 25% of Pagedale’s revenue in some years and became, for several years, the city’s second-largest source of income. 3 Tired of the abuse, Mildred and other Pagedale residents joined with the Institute for Justice to bring a federal class action lawsuit, which resulted in a groundbreaking consent decree intended to significantly reform the city’s laws and ticketing practices. Among other reforms, the consent decree required Pagedale to repeal sections of its municipal code that made many harmless conditions illegal. 4
Policing is supposed to be about protecting and advancing public safety. Municipalities like Pagedale, those described below and others across the country distort that purpose when they use traffic and other code violations to raise revenue from fines and fees rather than solely to protect the public. This is taxation by citation, and it is a phenomenon even some public officials have acknowledged. For example, James Tignanelli, president of the Police Officers Association of Michigan, has said, “When elected officials say, ‘We need more money,’ they can’t look to the department of public works to raise revenues, so where do they find it? Police departments.” 5 Sounding a similar note, Michael Reaves, then-chief of the Utica, Michigan, Police Department, explained, “When I first started in this job 30 years ago, police work was never about revenue enhancement, but if you’re a chief now, you have to look at whether your department produces revenues.” 6
Taxation by citation burst into the public consciousness in 2014 following the shooting of Michael Brown by a police officer in Ferguson, Missouri, another municipality in St. Louis County. After the shooting and the protests that ensued, the U.S. Department of Justice documented in a 2015 report how tensions in Ferguson long pre-dated Brown’s death and stemmed in significant part from the city’s aggressive use of its police and municipal court to raise revenue through code enforcement. It found that for years before the unrest, Ferguson officials had urged the police chief and municipal court judge—both political appointees—to prioritize revenue maximization, working with them to meet significant budget increases using citation revenue. 7
In another example, the Atlanta suburb of Doraville, Georgia, is over 500 miles away from Missouri, but its fines and fees behavior is similar to that of Pagedale and Ferguson. In recent years, Doraville has budgeted for fines and fees to make up 17% to 30% of its revenue. 8 By comparison, the national median municipality with a population greater than 5,000 receives 0.9%. 9 Doraville’s heavy reliance on citation revenue requires city police to find violations to generate those funds. By one account, Doraville issues citations of more than $800 per resident annually and upwards of 40 citations per day on average. 10
In recent years, media reports about abusive municipal fines and fees practices have proliferated, reflecting the phenomenon’s growth as well as increasing awareness of—and concern about—the issue. USA Today, for example, reported Montgomery, Alabama, collected almost $16 million in “fines and forfeitures” in 2013—more than five times what similarly sized Alabama cities collected. 11 The Phoenix New Times reported the Arizona municipal courts with the highest net incomes for fiscal year 2017: Tempe (pop. 185,000), with a net income of $4,007,735, followed by Scottsdale (pop. 250,000) at $3,023,437, Paradise Valley (pop. 15,000) at $2,642,200 and Tucson (pop. 535,000) at $1,097,690. 12 A National Public Radio investigation found some cities’ fines and fees were so steep that people were often jailed not for an underlying offense but for failure to pay court debt, including late fees and penalties tacked on by courts due to missed payments. 13 And in 2019, Governing magazine reported hundreds of municipalities nationwide are “addicted to fines.” 14
A number of university research programs and national policy organizations have also taken up the issue. These include Harvard Law School’s Criminal Justice Policy Program, home to the National Criminal Justice Debt Initiative; 15 the Center on Media, Crime and Justice at John Jay College of Criminal Justice; 16 the Fines and Fees Justice Center; 17 the National Center for Access to Justice at Fordham Law School; 18 the Brookings Institution’s Hamilton Project; 19 the Southern Poverty Law Center; 20 and the Institute for Justice. 21
Despite increasing and significant attention to this issue, proposed solutions have been limited, often focusing on local political remedies, such as voting out municipal officials who engage in taxation by citation and adopting municipal-level legislative reforms, or very targeted state-level fixes, such as caps on the fines and fees revenue municipalities can keep. 22 Such proposals have their attractions, but they also suffer from serious inadequacies: Removing elected officials and adopting municipal-level reforms require a healthy political environment, but a healthy political environment is unlikely to give rise to taxation by citation in the first place. 23 And passing individual reforms at the state level fails to address the sprawl of unconnected laws that likely affect municipal fines and fees behavior. For example, in the 1990s, the Missouri General Assembly capped the annual revenue municipalities could keep from traffic tickets in an effort to curb speed traps. 24 But because the law applied only to moving violations on federal and state roads, municipalities could and did continue to issue citations for nonmoving violations and other municipal code violations. 25
In order to understand municipal fines and fees behavior and propose more comprehensive policy solutions, a more systematic approach is needed. One such approach is an analysis based on state laws that may be related to municipal taxation by citation. Given that municipalities are political subdivisions of states and so subject to their laws, state legislatures may be well situated to address municipal fines and fees behavior.
Yet, as far as we know, no one has ever compiled a systematic collection of the relevant laws scattered across the constitutions, codes and court rules of the 50 states. Now, for the first time, this report provides a nationwide accounting of state laws relating to municipal fines and fees. This accounting comes in the form of an index of 52 law-based factors that measure the extent to which state laws may prohibit, sustain, encourage or fail to neutralize municipal taxation by citation. An important caveat to note is that although this accounting is the most comprehensive now available, there are likely relevant laws our factors do not capture.
We developed the 52 factors, and their scales, by close analysis of issues discussed in works on fines and fees abuse and an original review of all 50 states’ laws as of 2017. For many factors, the potential link to taxation by citation is obvious. Examples include state laws that cap the percentage of revenue municipalities can generate through fines and fees (factor B3) or that regulate the amount of fines that can be assessed per municipal ordinance violation (factor F1i). For other factors, the link to taxation by citation is less readily apparent. We identified such factors through our review of works on fines and fees, including, most notably, the DOJ’s Ferguson report. 26 One example is the power of municipalities to enact ordinances analogous to state laws (factor A2). The relationship between such laws and fines and fees is less obvious, but the DOJ found Ferguson filed most charges as municipal ordinance violations despite the existence of analogous state offenses. It did so to divert what would have been state violations—and thus state fines and fees revenues—to the city’s municipal court, which enjoys primary jurisdiction over ordinance violations. 27 The Methods section offers details on how we developed the factors and their scales, as well as a list of all 52 factors.
While it is more convenient to study a few dozen factors than the thousands of state laws they capture, 52 is still an unwieldy number. To make the index more user-friendly, we have grouped the factors into seven thematically based categories (see the Methods for more information on how and why we created the categories):
Municipal Authority to Enact Codes and Enforce Them in Municipal Courts
Municipal Revenue and Court Independence
Flexible Payment Terms and Notice in Municipal Courts
Driver’s License Suspensions for Failure to Pay
Procedural Protections in Municipal Courts
Limitations on Municipal Punishments
Restrictions on Incarceration and Methods for Municipal Collections
In the Key Findings, we describe the categories and summarize how the states perform by category and on most factors. We also discuss how the states do across all categories (Overall Results). Those interested in seeing how the 50 states perform across every factor in a given category can click on the “50 state table” button at the bottom of each category description.
Also in the Key Findings, we rank the states according to how they perform overall and across each category. These rankings, presented in map form, reflect the extent to which a state’s laws, as of 2017, 28 may allow for, if not incentivize, municipal taxation by citation relative to other states’ laws. (The Methods section explains how we created the rankings.) For example, Georgia ranks first as the state whose laws hold the greatest potential to encourage taxation by citation, while North Carolina ranks last. Clicking on a state will take readers to the full results for that state. There, they will be able to see at a glance how the state ranks overall and on each category, as well as how it scores on each of the 52 factors.
Because the rankings are based on states’ laws and not municipal behavior, they reflect how much states might allow or promote municipal taxation by citation relative to other states—not the extent of municipal fines and fees abuses. Poor-ranking states may have municipalities without fines and fees problems, and municipalities in states with better laws may still find ways to engage in taxation by citation. Within the context set by state laws—including some that may not be captured here—municipalities make their own choices.
The state rankings can be used to explore the degree to which individual states’ laws may affect municipal taxation by citation, as well as to explore differences among the states, with a view to identifying potential avenues for reform or future research. And while the rankings are based only on states’ laws, readers can compare them against what they know about municipal taxation by citation in a given state to gain a better sense of whether, in which direction and to what extent state laws may affect municipalities’ fines and fees behavior. Reform advocates and researchers can also use this report to pinpoint specific factors, or categories of factors, that may be contributing to the presence, or relative absence, of fines and fees abuse in a state. And if municipalities in a state are behaving better—or worse—than one might expect given state law, this could even point the way to other factors not accounted for here. Comparisons across states are likely to be similarly illuminating.
In the overall rankings, Georgia comes first as the state whose laws appear most conducive to municipal taxation by citation. It is followed closely by West Virginia and Rhode Island. The three states also place consistently in or near the top 10 in all categories, suggesting they may be ripe for significant reform efforts. North Carolina ranks 50th and lands near the bottom of most categories, suggesting it may need reform less urgently. Because the rankings reflect only states’ laws’ potential to promote fines and fees abuse relative to other states’ laws, and not municipal ordinances or actual municipal behavior, it is possible municipalities in a state may behave better—or worse—than we might expect given the rankings. However, Georgia’s first-place ranking is consistent with a 2017 U.S. Commission on Civil Rights report that found Georgia cities were disproportionately represented in the top 10 of all U.S. cities in fines and fees revenue as a percentage of all revenue.* North Carolina’s ranking is also in keeping with some, though not all, external evidence.**
Georgia earns the worst spot in our rankings because it provides the weakest procedural protections for people facing ordinance prosecutions in municipal court (category E); gives municipal courts broad jurisdiction and allows municipalities to regulate the same or similar conduct as state law (first in category A); offers scant flexibility to people paying fines and fees (second in category C); and provides few safeguards that would prevent courts from jailing people who cannot pay fines and fees (seventh in category G).
North Carolina owes its ranking, in large part, to its lack of municipal courts (factor A3). For the purposes of this report, a municipal court is defined as a judicial court operated by a municipality for the primary purpose of hearing violations of that municipality’s ordinances. (In some states, municipal courts may also hear some state law cases.) The municipal courts analyzed in this report are judicial courts, a co-equal branch of government.*** They are not agencies of the executive branch.****
Without municipal courts, many factors simply do not apply, resulting in lower—better—rankings across most categories. These include factors having to do with municipal court jurisdiction, independence, payment terms, procedural protections and punishments. On those factors that do apply, North Carolina generally performs well. It ranks 49th and last on categories G and D, respectively, as it prohibits jailing people or suspending their driver’s licenses when they fail to pay fines and fees unless that failure was willful. The only factors on which North Carolina shows substantial room for improvement are those concerning municipal finance; the state’s laws do little to reduce municipalities’ demand for fines and fees revenue, even if they make actually pursuing such revenue difficult.
As North Carolina’s best-place finish attests, the presence or absence of municipal courts (factor A3) is a major driver of our rankings. To fund their staffing and operations, municipal courts often rely either on direct funding from their municipalities or on fees they collect in cases brought by their municipalities. Their judges may be selected by the municipal government or by popular election. This makes municipal courts potentially susceptible to municipal pressure to convict and impose fines on people. Thus, the existence of municipal courts can open the door to all manner of provisions and practices that could make it easier for municipalities to pursue fines and fees for financial gain. Indeed, there is strong anecdotal evidence of municipal courts enabling fines and fees abuse. For example, in its report on the circumstances leading up to the Ferguson unrest, the DOJ described the Ferguson municipal court’s revenue-generating focus and practices, concluding, “the municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as a means to compel the payment of fines and fees that advance the City’s financial interests.”*****
All told, 28 states permit municipal courts. And in 17 of those states, municipal courts enjoy jurisdiction over some state law cases in addition to municipal ordinance prosecutions (factor A4). Such broad jurisdiction may allow municipalities to reap fees from state law cases even if any fines must be remitted to the state. In addition, many states with municipal courts do not require those courts to provide people accused of violating ordinances with the same protections typically offered elsewhere in the justice system, such as trial by jury (factor E3). This may make it easier for courts to convict and levy fines and fees on people. In states without municipal courts, like North Carolina, these and many other factors (31 of the 52 factors in total) are simply non-issues.
The presence of municipal courts may also exacerbate the effects of factors that may be problematic even without municipal courts. For example, in states that allow municipalities to regulate the same or similar conduct as state laws (factor A2), local law enforcement may issue municipal ordinance citations instead of charging people under analogous state laws. Where municipalities do not have their own courts, they can still receive fines from ordinance violations, though any fees go to the state court processing the violations. But where municipalities do have their own courts, those courts can reap both fines and fees.
Beyond municipal courts, other factors address fundamental issues or topics of national concern—and show room for improvement. First, nearly every state performs poorly on factors related to municipalities’ financial incentive to pursue fines and fees. For example, only two states—Kentucky and Missouri—firmly cap municipal fines and fees revenue (factor B3). And no state with municipal courts requires municipalities to send all court revenue to a neutral fund (factor B4).
Second, a sizable number of states have not codified protections against incarceration for failure to pay court debt, despite U.S. Supreme Court precedent finding it unconstitutional to jail people without first determining whether they have the means to pay. Fifteen states do not bar courts from jailing people who lack the means to pay fines and fees (factor G1). And 11 do not require ability-to-pay hearings (factor G3).
Third, few states protect people from license suspensions for failure to pay fines and fees in traffic cases—one of the harshest means courts can use to try to force people to pay fines and fees. Only three states bar courts from suspending people’s licenses when they cannot pay (factors D1 and D2). Just 16 states require courts to lift suspensions with partial payments (factor D3), while 19 require courts to collect full payment.
Whether municipalities ultimately abuse fines and fees is a matter of local policy. But taken together, these results suggest the laws of too many states give municipalities ample incentive and means to engage in taxation by citation.
* U.S. Commission on Civil Rights. (2017). Targeted fines and fees against communities of color: Civil rights and constitutional implications [Briefing report]. Washington, DC. See also Kopf, D. (2016, June 24). The fining of black America. Priceonomics.
** For example, the U.S. Commission on Civil Rights reported that “large municipalities in North Carolina (e.g., Greensboro, Raleigh, and Charlotte) collected almost no revenue per capita from fines and fees” (2017, p. 26). And no North Carolina municipality appeared among the 840 jurisdictions reported by Governing magazine to derive more than 10% of their revenues from fines and fees or to collect more than $100 in fines and fees per adult resident. Maciag, M. (2019, Aug. 21). Addicted to fines. Governing. Other observers, however, report that fines and fees abuse still occurs in North Carolina. To the extent this is the case, this may be due to municipal ordinances or rogue municipal practices, or even to state-level taxation by citation. Relevant to the latter, the ACLU of North Carolina has suggested the state uses fines and fees to fund tax cuts. ACLU of North Carolina. (2019). At all costs: The consequences of rising court fines and fees in North Carolina.
*** Where local courts like these are officially part of a unified state court system, we do not count them as municipal courts unless they operate largely independently of, and with little oversight from, the state.
**** Some states allow municipalities to establish a system for the administrative adjudication of certain civil (i.e., noncriminal) municipal ordinance violations that are punishable by fines only (i.e., not punishable by incarceration). Because these units are typically agencies of the local government, rather than judicial courts, we do not consider them municipal courts for the purposes of this report.
***** U.S. Department of Justice Civil Rights Division. (2015). Investigation of the Ferguson Police Department. Washington, DC, p. 3.
States may give municipalities more or less authority to enact local codes and to establish their own courts to enforce those codes. And where municipalities enjoy broad legislative and judicial authority, they may use it to levy fines and fees on people for financial gain. This category introduces two ways states may award judicial power to municipalities and two ways they may delegate legislative authority to municipalities.
We begin with judicial power because permitting municipalities to create their own courts (factor A3) heightens the risks of giving municipalities broad legislative authority to create new municipal offenses. Municipal courts, unlike state courts, may have financial interests in the outcomes of the cases they hear. Municipal courts must often raise their own funds from fees they collect in cases brought by municipalities, or else depend on municipalities to fund their staffing and operations, making them susceptible to municipal pressure to convict and impose fines on people. By contrast, state courts tend to enjoy greater financial independence. In all, 28 states permit municipal courts. In the other 22 states, municipal prosecutions are heard by state courts. In those states, municipalities may find it more difficult and less profitable to pursue fines and fees revenue.
A second, related way states may give municipalities judicial power is by granting municipal courts jurisdiction over some state law cases (factor A4). In such cases, even if fines do not go to municipalities, municipal courts can still reap fees from convictions. Broader jurisdiction thus carries a potentially pernicious financial incentive, and broad jurisdiction is common. Most states with municipal courts—17 of 28—permit them to decide some state law cases in addition to code violation cases. In the remaining states, municipal courts hear only municipal prosecutions.
Turning to legislative authority, the first way states may delegate power to municipalities is by allowing them to enact provisions that regulate the same or similar conduct as state laws (factor A2). If permitted, municipalities may enact local versions of state laws and direct law enforcement to issue municipal ordinance citations instead of state law charges. This can divert cases—and thus revenue—from state courts to municipal ones potentially interested in the cases’ outcomes. Twenty-one states allow municipalities to regulate activities already regulated under state law, while only two disallow the practice. The remaining 27 are silent, leaving open the possibility that municipalities will seek to regulate the same or similar conduct as state laws. However, the potential for diversion is most acute in the 10 states where municipalities are allowed their own courts and can regulate activities the state already regulates.
The second way states may delegate legislative authority is by allowing municipalities to enact charters and codes (factor A1). Municipalities may use authority under a charter to enact ordinances against harmless or vaguely defined conduct and then strictly enforce those provisions to raise revenue. States overwhelmingly—46 in all—allow municipalities to enact some form of charter or code, albeit with varying degrees of discretion. Only four states do not.
Six states delegate the maximum authority to municipalities and municipal courts as measured by this category: Arizona, Georgia, Kansas, Louisiana, Nevada and New York. Each of those states has municipal courts and awards those courts significant judicial power through broad jurisdiction to adjudicate all municipal court ordinance prosecutions and some cases under state law. Each also affords municipalities legislative authority to enact charters and codes and permits municipal regulation of the same or similar conduct as state laws. Municipalities in those states may therefore enjoy greater ability to levy fines and fees for financial gain than municipalities elsewhere.
Under fiscal pressure, municipalities may be tempted to treat fines and fees as a source of revenue to be pursued rather than as a byproduct of unbiased code enforcement to protect public safety. States can curb such abuse by (1) reducing municipalities’ need for fines and fees revenue, (2) limiting municipalities’ control over revenue collected by municipal courts, and (3) safeguarding those courts’ independence. This category considers ways states can achieve those ends and try to prevent fines and fees abuse.
States with and without municipal courts can reduce municipalities’ demand for fines and fees revenue in three ways. First, they can cap fines and fees as a percentage of a municipality’s budget (factor B3). However, only two firmly cap what municipalities can keep. Kentucky requires municipalities to send all fines from ordinance violations to the state, while Missouri allows municipalities to derive up to 20% of their operating revenue from fines and fees, with any overage going to the state. Missouri municipalities must fund the other 80% of their budgets using other sources.
Second, states can give municipalities other options for raising revenue. For this factor, we relied on a report by the National League of Cities, a leading resource on municipal policy.* The NLC analyzed the taxes that states allow municipalities to raise as a measure of municipal fiscal autonomy. According to the NLC, 24 states allow municipalities to impose property taxes or sales taxes. Twenty-five permit municipalities to levy property and sales or property and income taxes, and one permits them to levy all three taxes (factor B2).
Third, states can protect municipalities from having to provide new services without a funding source (factor B6). Only seven states have laws protecting municipalities from unfunded mandates.
Municipalities with their own courts may find it easier and more lucrative to pursue fines and fees revenue, so states that allow municipal courts can take two additional measures. First, they can bar municipalities from budgeting for fines and fees revenue to discourage dependence on it (factor B1). This may discourage municipalities from using code enforcement for financial gain rather than public safety. If municipalities cannot plan for such income, they may put less pressure on their courts and law enforcement personnel to produce it. Unfortunately, no state bars this behavior.
Second, states can require municipalities to send revenue raised by their courts to funds beyond municipal control—for instance, to a county school or hospital fund (factor B4). No state requires this, though one—Oklahoma—limits how municipalities can allocate portions of such revenue.
States can also safeguard municipal courts’ independence by providing them with three defenses against municipal pressure. First, states can guarantee courts funding in their laws so they do not have to depend on municipalities to support them (factor B5). While two states—Ohio and Washington—provide funding for municipal court judges under some circumstances, no state fully funds municipal courts.
Second, states can set minimum criteria to shield the neutrality of judges and other court personnel (factors B8i, B8ii). With greater safeguards, court personnel may face fewer conflicts of interest and be less susceptible to municipal influence. From a financial perspective, states can protect court personnel’s job security and incomes, as well as court funding, from municipal reprisals for unfavorable case outcomes (factor B8i). Only Missouri meaningfully regulates municipal courts in this way; it prohibits basing judges’ compensation on cases heard, guilty verdicts reached, or fines imposed or collected. And from a professional integrity standpoint, states can set higher ethics and professionalism standards for court personnel (factor B8ii). Enforcing higher standards creates accountability and may promote greater neutrality and competency among court personnel, lowering the risk of abuse. While many states regulate municipal courts in this way, none does so to a significantly high standard.
Third, states can require municipal courts to function separately from the political—that is, legislative and executive—branches of municipal government (factor B7). Among other practices, this may entail preventing city councils and mayors from appointing or removing judges; barring mayors or their designees from sitting as judges; organizing prosecutors and other law enforcement officers in separate offices from court personnel; physically removing courts from police departments; and barring court personnel from wearing anything signifying they are law enforcement officers. A number of states have some relevant regulations, but no state extensively regulates municipal courts in this way.
Arguably, the most important factors concern how much fines and fees revenue municipalities can retain. If municipalities cannot keep fines and fees revenue above a certain cap, or must allocate revenue raised by their courts to school or hospital funds, this limits, if not eliminates, their financial incentive to pursue such revenue. However, only two states cap what municipalities can keep. Further, no state requires revenue from municipal courts be sent to neutral funds beyond municipal control. Without such measures, municipalities have an incentive to circumvent other protections to maximize their fines and fees take.
Two states—Rhode Island and Wyoming—perform particularly poorly across these factors. They neither curb municipal demand for fines and fees revenue nor bar municipalities from budgeting for and spending revenue from their courts. They also fail to provide courts any of the defenses described above. Municipalities in those states may therefore have more of an incentive to generate revenue from fines and fees than municipalities in other states.
* National League of Cities. (2015). Cities and state fiscal structure. Washington, DC.
Courts can make it easier for people to pay fines and fees by offering flexible payment terms and by publishing fines and fees amounts per offense so people can come to court prepared to pay. Without flexibility and notice, people may fall behind on court debt and incur late fees. Worse, municipal courts—often supported by fees—may come to rely on such fees. This category considers four ways states can require municipal courts to ease payment of court debt and help people avoid escalating fees.
The first, and most critical, way states can ease payment is by requiring municipal courts to accept partial payments (factor C4). This way, people can begin paying down their debt and avoid penalties. But if courts can refuse partial payments, they may do so, resulting in late fees and interest—more debt—for people who cannot afford to pay all at once. Unfortunately, only three of the 28 states with municipal courts require them to accept partial payments. But 13 states allow or encourage them to do so. The remaining 12 states are silent.
Second, states can require municipal courts to offer people ways to pay fines and fees without attending court (factor C2). Particularly for people of limited means, making a court date can be a hardship, demanding time off work or costly and often hard to find child care. Yet failure to appear in court to pay fines and fees can lead to late fees and additional penalties, including arrest and incarceration. Alternatives—such as payment by mail, at a court registry, online or over the telephone—help people make payments on time and avoid late fees. Just four states require municipal courts to provide such payment options, though 12 others allow or encourage it. The other 12 states are silent.
Third, and closely related, states can limit the offenses for which municipal courts can require people to pay fines and fees in court (factor C1). Without such constraints, courts may require in-person payment for more offenses, increasing the risk of missed court dates and late fees. Only one state, Indiana, specifically bars municipal courts from adding to the offenses requiring people to pay in court. Five explicitly allow this practice, while the remaining 22 are silent.
Finally, states can make it easier for people to pay by requiring municipal courts to publicly post a list of fines and fees by offense—if a court has such a schedule (factor C3). Courts can post this information online, at court registry offices or in other prominent public locations. If people can easily learn how much they will owe before their court date, they can prepare to pay in court and avoid return visits and penalties. Just five states require municipal courts to publicly post fines and fees schedules. Two others permit or encourage the practice. Twenty-one are silent.
Too few states require municipal courts to ease payment in any of these ways, and no state requires courts to provide more than two protections. Courts may exploit these gaps to earn more fees. But even if they are not doing so now, some may be only a budget shortfall, economic downturn or leadership change away from starting. Codifying these protections in state law may help ensure that does not happen.
Paying municipal fines and fees may be particularly onerous in seven states: Alabama, Georgia, Montana, Nevada, Oregon, Utah and Wyoming. Those states do not require, or even encourage, courts to accept partial payments of fines and fees or post fines and fees schedules publicly. They also do not prevent courts from extending the list of offenses that require in-person payment. And only Oregon allows courts to provide payment options beyond attending court. Municipal courts in those states may therefore enjoy greater latitude than municipal courts elsewhere to set stringent payment terms and levy additional fees for financial gain.
Driver’s license suspensions are one of the harshest means courts can use to try to force people to pay fines and fees. Unless restrained, courts may suspend people’s licenses even when they cannot afford to pay. But without a license, people may struggle to hold down a job, access basic necessities like food and medical care, and care for their families. Not only are such consequences often disproportionate to the actual offenses—typically minor traffic violations—they may also make it harder for people to pay their court debt.
In every state, state laws govern license suspensions for failure to pay in traffic cases, whether the underlying offenses are under municipal codes or state laws. Therefore, this category looks at laws governing all such license suspensions, including those heard by municipal and state courts. In this way, this category differs from all others, which look only at laws restraining municipalities or municipal courts. This category considers three ways states can limit courts’ power to suspend driver’s licenses.
First, states can bar courts from suspending people’s licenses when their failure to pay fines is not willful (factor D1). This protects people who legitimately cannot pay. Unfortunately, only three states specifically offer this protection. Thirty-seven others permit or even require courts to suspend licenses for failure to pay fines in at least some cases. The remaining 10 states are silent, leaving open the possibility that courts will use license suspensions to force payment.
Second, and closely related, states can apply the same protection when people cannot pay fees (factor D2). Not only does this protect the poor, but it also better serves justice as court fees are supposed to be payments for court services—not punishments in their own right, let alone grounds for further punishment. Just three states provide this safeguard. Eighteen permit or even require courts to suspend people’s licenses for failing to pay fees in at least some cases. The other 29 states are silent.
Third, states can require courts to lift license suspensions when people make partial payments toward their court debt (factor D3). States can also set time limits or other restrictions on license suspensions. Just 16 states instruct courts to lift license suspensions upon partial payment. By contrast, 19 require courts to collect full payment. The remaining 15 have no law on point, likely leaving the decision in the hands of judges.
Too few states offer drivers any of these protections, particularly the first two, which are arguably most important. Where courts cannot suspend people’s licenses for failure to pay in the first place, it is less critical that states require courts to accept partial payments to lift suspensions. Only Hawaii, Nebraska and North Carolina provide all three protections, helping ensure residents do not lose their driving privileges just because they cannot pay fines and fees.
Municipal courts may not provide people accused of violating ordinances with the same procedural protections typically offered elsewhere in the justice system. When such protections are absent, municipal courts may be more likely to convict people and levy fines and fees on them to municipalities’ financial gain. This category examines baseline protections the 28 states with municipal courts can require before, during and after cases go to court. Municipal courts can offer protections above this floor, and some may already do so.
States can protect people in two ways before their cases reach court. First, states can protect people’s rights from the moment code enforcement or police officers issue citations, by requiring that citations explain how to resolve or contest the charges (factor E1i–viii). This category considers eight distinct notice provisions, including whether people are told the specific municipal code provisions they supposedly violated (E1ii), when and where they must appear in court (E1v), and any available ways to avoid attending court (E1vi). Of the states with municipal courts, no state requires all eight notice provisions. Ten states do not require any of the eight notice provisions; the remaining states vary.
Second, states can also protect people before they get to court by allowing discovery in ordinance cases (factor E2). Discovery, which is available in different forms in criminal and civil proceedings, is a procedure for gathering information that allows the accused to learn what facts and legal theories prosecutors will rely on. This allows people to know the case against them, gather evidence and prepare their defense. Just 10 states with municipal courts explicitly allow discovery in ordinance cases, two of them only with the court’s permission. The remaining 18 either do not allow discovery or are silent on its availability.
Once a case gets to court, states can protect the accused in two important ways. First, they can require municipalities to satisfy a higher standard of proof, especially when jail time is possible (factor E5ii). Standard of proof is the level of certainty necessary to convict a person of an offense. Proof of guilt beyond a reasonable doubt is the standard required in criminal cases. If municipalities must also meet that standard in ordinance prosecutions, they are less likely to bring frivolous cases solely to raise revenue. More importantly, a higher standard means innocent people are less likely to be jailed or coerced into pleading guilty and paying fines and fees. In nearly all states that permit incarceration in ordinance cases—23 out of 24—the prosecution either faces a lower standard or the standard is not explicitly set by state law.
Second, states can offer people jury trials (factor E3). Jury trials allow people to be tried by impartial third parties, rather than by municipal judges who may face municipal pressure to convict them. Thus, just as they do in state-court criminal cases, jury trials in ordinance cases serve as checks on governments’ power to arbitrarily deprive people of their liberty or property. Fifteen states with municipal courts allow for jury trials in some or all ordinance cases. The remaining 13 either do not allow jury trials or do not address them in their laws.
After a person’s case is decided, states can provide two additional protections. First, they can provide a backstop against unfair municipal court rulings by allowing people to appeal convictions to state court (factor E6i). This fosters fairness because state courts do not, as municipal courts may, face pressure from municipalities to levy fines and fees on people. And second, states can prohibit municipalities from appealing cases dismissed (factor E6ii). This protects people from facing continuing prosecution and is in line with the basic principles of fairness underpinning the constitutional prohibition on double jeopardy. All but one state with municipal courts allows people to appeal ordinance convictions. On the other hand, only nine states bar municipal appeals of cases dismissed.
Looking across these factors, it is clear many states fail to set baseline protections to safeguard the rights of people prosecuted in municipal courts. Particularly lacking are notice provisions, discovery, standards of proof and jury trial availability. One exception is appeals: Almost every state allows people to appeal municipal court rulings to state court, which may help mitigate harm where other protections are poor or lacking.
Three states leave people accused of violating ordinances particularly unprotected. Rhode Island and Wyoming provide only two of the above protections—allowing people to appeal convictions and not authorizing municipalities to appeal acquittals—while Georgia protects people only by not authorizing municipal appeals. Without minimum protections codified in state law, municipal courts in those states wield broad discretion over people’s rights. Consequently, protections may vary from court to court or be entirely absent, making it easier for municipalities to levy fines and fees on people for financial gain.
Unless states limit punishments, municipalities and courts may set excessively harsh penalties for people accused of violating ordinances in order to raise revenue. First, municipalities may set heavy fines disproportionate to offenses. Second, municipalities may set and courts may levy higher fees or create new fees. And third, courts may refuse to consider alternative punishments that might serve justice better than fines. This category explores how states can restrain such punishments to make it more difficult to levy fines and fees on people for financial gain.
Municipal councils regulate the fines and fees courts can assess in ordinance violation cases, whether those cases are heard by municipal courts or, where municipal courts do not exist, state ones. For this reason, factors considering whether states cap municipal fines and fees—namely, factors F1i and F1ii—look at all states and not just those with municipal courts. The remaining factors concern regulation of specific municipal court practices.
States can restrain fines by setting upper limits on the fines courts can order people to pay (factor F1i). Capping fines per offense prevents municipalities from setting exorbitant financial penalties—and stops courts from imposing them on people. It may also reduce pressure on people to plead guilty to avoid more crippling financial punishment if they are convicted at trial. Forty-six states cap fines. However, some states’ ceilings are as high as $5,000 per offense for most municipal code violations.
States can restrain fees in three ways. First, they can limit the amounts and types of fees municipalities can set and courts can charge (factor F1ii). Caps on specific fees prevent municipalities and courts from using fees to evade limits on fines. Likewise, restrictions on new fees prevent municipalities and courts from introducing more fees to bypass caps on existing ones. Thirty-seven states regulate fees in some way, but only seven of those states bar new fees without state authorization.
Second, states can bar municipal courts from imposing fees in cases where people are acquitted or have their charges dismissed (factor F4). As a matter of fairness, courts should not collect fees in such cases. Nineteen of the 28 states with municipal courts bar them from imposing fees on people unless they are convicted or plead guilty.
Third, states can require municipal courts to (1) incorporate the amounts of any court or prosecution fees into their orders of what people must pay (factor F3i) and (2) specify the names of those fees in their orders (factor F3ii). Requiring courts to provide this information could make court personnel less likely to levy unauthorized fees and allows people to understand the precise fees and amounts they owe. Just six states with municipal courts require those courts to incorporate any fee amounts into their orders, and only three mandate that courts also name those fees in their orders.
Finally, to protect people from overly harsh punishments or financial ruin, states can require municipal courts to look beyond monetary penalties and jail in sentencing people (factor F5). If courts must consider community service, education programs or other non-jail alternatives to fines, people will face less pressure to plead guilty and pay fines and fees to avoid jail time if convicted. Seven states with municipal courts require or encourage them to consider alternative punishments. Another 17 permit alternatives. The remaining four are silent.
Looking at all these punishment limitations, most states protect people by capping fines. Many also regulate fees in some way, and most states with municipal courts bar those courts from levying fees on people who are acquitted or have their charges dismissed. However, courts and municipalities may be able to evade caps on fines and fees where states do not bar them from creating new fees absent state approval, and few states offer that protection.
Overall, six states—Nevada, Oklahoma, Rhode Island, South Carolina, Utah and West Virginia—leave municipal punishments particularly unrestrained. These states all cap fines to some degree but otherwise do not fully restrict punishments in any of the above ways, potentially making it easier and more profitable for municipalities and courts to pursue fines and fees revenue.
When people are accused of violating traffic laws or municipal codes, they may face more than fines and fees. Harsher measures may await, and courts and municipalities can leverage them to force people to pay. First, courts may jail people who fail to pay—a severe measure that risks punishing people for being poor. Second, municipalities may hire private debt collectors or use civil judgment enforcement mechanisms, such as garnishing wages and placing liens on property, to force payment. This category examines ways states can curb these measures and possibly prevent courts and municipalities from using them to generate fines and fees revenue.
The U.S. Supreme Court has long held that the first measure—incarceration—violates the Constitution’s Equal Protection Clause if people cannot pay. Nonetheless, courts continue to jail people who cannot afford fines and fees, with some municipal codes specifically permitting the practice. States can restrain this practice by banning it and offering procedural protections to the accused. This category examines such restraints on municipal prosecutions in both state and municipal courts because both may hear code violation cases that carry jail time. However, municipal courts, which more often rely on fines and fees for operational and other expenses, may be more prone to leveraging fear of jail to secure guilty pleas and collect revenue.
Banning jail time when people cannot pay may be useful because some municipal codes permit it despite the high court’s disapproval, and courts may be more likely to observe prohibitions codified in state law (factor G1). Most states (35) have enacted such prohibitions, but 15 still have not.
Complementing direct bans, states can also prohibit a possible workaround: jailing people for contempt of court because they cannot pay (factor G2). Courts should hold people in contempt only if they willfully disobey court orders, and not because they cannot afford fines and fees, regardless of municipal ordinances to the contrary. Of the 47 states that allow jail for nonpayment, 30 prohibit jailing people for contempt because they cannot pay. However, 17 place no such limits on courts.
In addition to bans, states can establish important procedural protections for people facing jail time for failing to pay fines and fees. For example, states can require that courts hold hearings to determine whether people can pay before jailing them (factor G3). Again, the Supreme Court has long held the Constitution requires ability-to-pay hearings, but anecdotal evidence suggests courts do not consistently comply and municipal codes often do not include them. Courts may be more likely to comply if states also require such hearings, as most (36) that allow jail for nonpayment do. But 11 states do not.
States can also offer another vital procedural protection: They can require courts to notify accused people facing potential jail time that they have a right to an attorney at no cost for ability-to-pay and contempt hearings (factor G5). People who cannot afford to pay fines and fees likely cannot afford an attorney. Yet they may find it difficult to navigate the legal process and assert their rights without one. Public defenders or other court-appointed counsel can help people secure a fair hearing—and potentially stay out of jail. Almost all (43) states provide this protection. The remaining states are silent.
These restraints target courts and the main tool municipalities may provide them to extract fines and fees—the threat of jail time. But states can also curb municipalities directly. First, states can prohibit municipalities from outsourcing collections to private debt collectors (factor G7i, G7ii). Without supervision, debt collectors may threaten to jail people who cannot pay their court debts. Facing jail time, people may divert funds from necessities, or borrow money at high interest rates, to pay. In two states, municipalities do not control the collection process. Of the other 48 states, 16 explicitly allow municipalities to outsource both fine and fee collections to private entities. Additionally, Illinois allows outsourcing of fine collections but is silent on fee collections. The law is silent on both fines and fees in the remaining 31 states, leaving open the possibility that municipalities contract with private debt collectors.
Second, states can ban municipalities from trying to garnish wages, place liens on property or use other civil judgment enforcement tools to collect fines and fees (factor G8i, G8ii). Such tools make it easy for municipalities to seize property from people with court debt, possibly encouraging them to bring frivolous cases to raise revenue. Among states where municipalities control collections, most allow them to use at least some civil judgment enforcement tools to collect municipal fines (35 states) and fees (30 states). No state directly bars their use.
Considering all these restraints, states are more likely to bar courts from jailing people unable to pay and offer procedural protections to those facing jail than they are to prohibit municipalities from outsourcing collections or using civil judgment enforcement methods. However, this is perhaps unsurprising given jailing people who cannot pay is unconstitutional.
Overall, three states stand out as particularly unrestrained: Illinois, South Carolina and West Virginia. None of these states restricts courts from using incarceration to collect fines and fees in any of the ways discussed here. Neither do these states prohibit municipalities from outsourcing collections or from using civil judgment enforcement methods. Indeed, both Illinois and South Carolina specifically authorize municipalities to try to use civil judgment enforcement methods to collect at least some types of unpaid court debt relating to municipal ordinance violations. As a result, in those states, courts and municipalities may have wide leeway to use incarceration and other harsh methods to extract fines and fees for financial gain.
Whether and to what extent state laws affect municipal taxation by citation is largely unknown, but anecdotal evidence suggests they could be an important policy mechanism for regulating municipalities’ fines and fees behavior. In May 2019, the Gulf Coast city of Dunedin, Florida, made national headlines when a resident sued the city over excessive fines it had levied on him for uncut grass. The resident, Institute for Justice client Jim Ficken, a 69-year-old retiree, was in South Carolina attending to his late mother’s estate when Dunedin began fining him $500 a day because his lawn exceeded the code-defined maximum length of 10 inches. Unbeknownst to Jim, the friend he had hired to mow the lawn died shortly after he left town. The amount Jim owed eventually reached nearly $30,000. Unable to pay, Jim faced foreclosure of his home. 29
The story made national headlines, and reporters inundated city leaders with questions. In one interview, a reporter asked Dunedin Mayor Julie Ward Bujalski if she thought it was extreme that uncut grass could lead to someone losing his home. Citing state-established fines for ordinance violations, Bujalski said the code enforcement board was just applying state law, concluding, “Doesn’t mean it’s right; it just means it’s legal.” 30
This is but one example, of course, but to the extent municipal leaders share Bujalski’s view, the only limits on municipal taxation by citation may be those set by state laws. As awareness about this phenomenon grows, there will be increasing calls for comprehensive policy solutions, not simply political ones (e.g., voting out elected officials) or very targeted fixes (e.g., revenue caps). The survey of state laws we present here offers a systematic way to diagnose the possible relationships between state policies and municipal behavior and identify potential ways by which state leaders can ensure the actions of municipalities are both legal and right.
Identifying the Factors
As described in the introduction, some of the 52 factors, or indicators, are self-evidently related to revenue generation through fines and fees, while others are less obvious. We identified the factors by an original review of state laws as of 2017 and a close analysis of issues discussed in the DOJ’s Ferguson report 29 and other works on fines and fees abuse. These works helped us identify numerous factors, including whether states permit the operation of municipal courts (factor A3), which can have strong financial or institutional interests in the outcome of the cases they hear; prevent municipal courts from levying fees in cases dismissed or where the person is acquitted (factor F4); prohibit incarcerating people for not paying court debts (factor G1); require ability-to-pay hearings (factor G3); bar courts from suspending driver’s licenses for nonpayment of fines or fees (factors D1 and D2) or from demanding payment in full before lifting license suspensions (factor D3); and permit municipalities to outsource collection of municipal court debts to private entities (factors G7i and G7ii). The DOJ report in particular was critical to understanding how municipalities and municipal courts can exploit state laws, and gaps in state laws, to raise revenue.
Beyond the DOJ report, our work was also more generally informed by theoretical and empirical literature with three prominent themes: (a) the profit incentive of municipalities issuing citations, (b) the importance of municipal courts being independent of municipal governments, and (c) court procedures focused on protecting defendants’ constitutional rights and not on extracting revenue.
The Profit Incentive of Municipalities Issuing Citations
Most municipal officials will claim that public safety is the primary motivator behind their citation activity, and some empirical evidence suggests issuing more traffic tickets reduces the rate of accidents 30 and traffic fatalities. 31 However, there is also research strongly suggesting a profit incentive accounts for at least some citations. 32 For instance, one study finds that when municipal revenue falls, it is accompanied by a statistically significant rise in ticketing the following year. 33 Drivers are also ticketed more when property values (and thus property tax revenues) are lower. 34 Conversely, ticketing appears to decline as the economy grows. 35 But if municipalities were focused solely on reducing traffic accidents, we would not expect ticketing levels to fall during economic booms. Rather, we would expect them to stay constant or rise, as more economic activity and greater workforce participation result in busier roads. Such evidence suggests that far from being the province of a few bad apple municipalities, taxation by citation is widespread enough to be detectible in econometric analyses. Thus, a number of our 52 factors measure the ways in which state laws limit, allow or encourage the mechanisms of municipal revenue generation. For example, one factor measures the extent to which states prohibit municipalities from budgeting to collect future fines and fees revenue (factor B1). Another examines the extent to which laws restrict how municipalities spend the fines and fees collected by municipal courts (factor B4).
Independence of Municipal Courts from Municipal Governments
In municipalities that have them, municipal courts process citations, making these courts a primary mechanism for revenue generation. Municipal court independence is in doubt where courts face pressure to return convictions—and fines revenue—to their municipalities. 36 It is also in doubt where courts are funded by their municipalities or where their funding depends on fees from the ordinance cases they hear. 37 Given municipal courts’ centrality in taxation by citation, many of our 52 factors focus on laws covering various aspects of municipal courts with a particular emphasis on independence. Such factors include whether states commit to funding municipal courts (factor B5) and whether states require municipal courts to function independently of their legislative and executive counterparts in municipal government (factor B7).
Court Procedures Focusing on Defendants’ Constitutional Rights
Municipal courts—like all courts—are supposed to focus on defendants’ constitutional rights and not on revenue generation. For example, since the 1970s, the U.S. Supreme Court has ruled it unconstitutional to jail people who cannot pay fines and fees. 38 This means courts should not incarcerate people for failure to pay fines and fees without first holding a hearing to determine whether they can reasonably afford to pay. 39 A focus on defendants’ constitutional rights also means informing defendants of their rights and allowing them to request, if unable to pay fines and fees, alternative punishment, such as community service. 40 Thus, a number of our 52 factors involve the intersection of constitutional rights and taxation by citation, including whether states (a) bar courts from jailing people unable to pay for contempt of orders to pay (factor G2), (b) require courts to hold ability-to-pay hearings supported by facts and evidence (factor G6), and (c) require courts to notify people of the right to appointed counsel for an ability-to-pay hearing or other proceeding that could result in incarceration (factor G5).
All 52 factors, with explanations of their hypothesized links to municipal taxation by citation and scales, are presented below under Factor Explanations.
Scoring the Factors
In addition to systematically identifying the 52 factors and their respective state laws, we created scales for each factor that allow for the empirical measurement of how state laws perform in prohibiting, sustaining, encouraging or failing to neutralize municipal use of fines and fees to raise revenue. Scales must accomplish two main objectives in order to helpfully measure laws. First, they must be parsimonious. That is, they must offer enough coding options to meaningfully account for different possible responses on factors without offering so many that differences between them blur and consistently classifying laws becomes difficult. Second, the scales must create a directional relationship between the codes and the factor, such that moving from one code to the next signals that laws are becoming more, or less, conducive to municipal taxation by citation.
Consistent with the foregoing, scales and codes vary by factor. Dichotomous scales offer a binary “yes” or “no” coding choice, such as for whether states create, or permit municipalities to create, municipal courts (factor A3). A “yes” response on that factor reflects a state law more conducive to taxation by citation. Conversely, ordinal scales offer multiple coding choices. For example, five coding options are provided for whether states allow jury trials in municipal ordinance prosecutions when requested by the accused (factor E3): 0 = no, 1 = state law silent, 2 = yes, for some cases or with conditions, 3 = yes, 4 = n/a as no municipal court system. In general, we catalogued all possible representations of the states’ laws for each factor. We defined upper and lower boundaries for those representations and created parsimonious scales to capture gradations between those boundaries. All factor scores worked in the same direction, where the lower the score, the greater the potential for taxation by citation. The full scale for each factor is provided below under Factor Explanations.
Categorizing the Factors
As we identified factors, we found it efficient to group them conceptually. Similar statutory provisions often appear in the same parts of state codes. Grouping factors in this way came with the added, although not entirely intended, benefit of suggesting categories, or constructs, that could be created with the factors. For policy researchers, the advantages of creating and using such constructs are at least threefold. First, the large number of factors—52—can be empirically unwieldy. In research using states as the unit of analysis, for example, 52 variables on the right-hand side of the equation would exceed the capacity of the sample. Constructs present a more statistically reasonable alternative. Second, factors that are conceptually related are likely also statistically correlated. Third, explaining and understanding the effects of 52 variables in an empirical analysis would overwhelm most authors and readers alike, making the results largely meaningless and inapplicable.
Ideally, we would have subjected the data to factor analysis to measure construct validity—that is, to determine whether the factors making up a category are statistically related and therefore whether such a grouping is appropriate. However, our use of states as the unit of analysis precluded such an analysis. Instead, we examined the groupings’ validity by applying Cronbach’s alpha. But before we could do that, we first needed to harmonize the factor scores. As discussed above, not all factors use the same scales of measurement. Some use dichotomous scales (i.e., 0, 1), offering a binary yes/no coding choice. Others use ordinal scales with varying end points (e.g., 0, 1, 2 or 0, 1, 2, 3). To facilitate the calculation of alphas—and for other analytical purposes—we transformed all of the factor scores into z-scores.
With the scores transformed, we were able to calculate the alpha scores. Our original categories generally yielded strong alphas. As Table 1 indicates, the one notable exception is category A, which yielded an alpha of 0.45. We therefore examined the estimated alphas if each factor in the category were deleted. Results indicated removing factor A2 (which measures whether state law permits municipalities to regulate the same or similar conduct as state laws) improved the category’s alpha to 0.71. Consequently, the category A score reported in Table 2 below does not include factor A2; factor A2 is included, however, in the overall score reported in Table 2. We include factor A2 in the overall score because, whether or not it coheres with the other category A factors, we posit a link to municipal fines and fees behavior. Both types of scores are described below.
Table 1: Cronbach’s Alpha for Original Categories
The theorized relationships each category explores between state laws and municipal taxation by citation are described in the Key Findings.
Ranking the States
Table 2 reports states’ overall and category scores, reflecting each state’s laws as of 2017. 41 For every category save A, a state’s category score encompasses all of a category’s relevant factors in the form of the mean of their respective factor scores. (As described above, the category A scores omit factor A2.) The overall score represents the mean of all factors (including factor A2). (To see how a state scores on a particular factor, visit the State Results.) All of these scores are unweighted means.
With these scores, states can be ranked based on the extent to which their laws may allow for, if not incentivize, taxation by citation behavior. Because these scores are all z-scores, and because all the scales are negatively coded, states with laws with the greatest potential for taxation by citation behavior have the lowest scores. It should be noted that z-scores are, of course, measures of relative position. These scores indicate where a state stands relative to other states—not some external criteria—in how its laws may be related to revenue generation through fines and fees.
Table 2 ranks states based on overall score, with states with the smallest scores—i.e., the greatest potential for taxation by citation—at the top. As indicated, Georgia ranks first, and North Carolina last.
Table 2: Overall and Category Scores by State (ranked lowest to highest by overall score)
A. Municipal AuthorityMunicipal Authority to Enact Codes and Enforce Them in Municipal Courts
Municipalities may use authority under a charter to enact ordinances against harmless conduct or vaguely defined offenses and then enforce those provisions to raise revenue.
If municipalities can enact provisions regulating the same or similar conduct as state laws, they may direct law enforcement to issue citations under municipal ordinances instead of state law to divert cases, and thus revenue, from state courts to municipal courts and treasuries.
Municipal courts must often raise their own funds from fees they collect in cases brought by municipalities, or else depend on municipalities to fund their staffing and operations, making them susceptible to municipal pressure to convict and impose fines on people.
Broader jurisdiction can bring more prosecutions to municipal courts, including some violations of state law. The fines from cases involving violations of state law often go to the state, but municipal courts can still receive fees from those cases.
B. Court IndependenceMunicipal Revenue and Court Independence
If municipalities can plan to receive fines and fees revenue, there is a danger law enforcement and courts will make, or be pressured to make, decisions for financial reasons and not public safety or justice.
With more options for matching revenue-raising tools to local economic conditions, municipalities may rely less on fines and fees.
If municipalities can retain fines and fees revenue only up to a cap, there is no financial incentive beyond that point for them to use code enforcement to raise revenue rather than to protect the public.
Municipalities’ financial incentive to levy fines and fees is negated to the extent such revenue is directed to a fund beyond municipal control.
If municipal courts do not have to self-fund via fees, or depend on municipalities to fund them out of court fines, they may feel less pressure to convict and levy fines and fees on people.
If the state cannot require municipalities to furnish new or additional services without providing a corresponding source of funding, municipalities may face less fiscal stress and, in turn, place less pressure on municipal courts to raise funds by levying fines and fees on people.
If municipal courts must function independently from the political branches of municipal government, any pressure they face to convict or coerce guilty pleas may be less effective.
If the personal (e.g., salary, commission, job security or promotion prospects) and institutional (e.g., funding) interests of municipal court personnel are shielded from municipal reprisals, municipal court personnel may face less pressure, have less incentive for abuse and be better able to carry out their duties neutrally.
Enforcing higher ethical and professionalism standards creates greater accountability for municipal court personnel. This, in turn, may promote greater neutrality and competency among personnel and lower the risk of abuse.
C. Payment TermsFlexible Payment Terms and Notice in Municipal Courts
If permitted, municipal courts may require in-court payment for more offenses, which increases the likelihood people will miss appearances and therefore accrue additional fees.
If municipalities must provide options for paying fines and fees other than appearance in court, it is likely there will be fewer missed appearances and so less risk of late fees being levied.
Where a court’s fines and fees schedule is easily accessible, people can attend court prepared to pay the total amount owed for a given offense or to remit payment via another option if available. This reduces the likelihood of return trips to court to pay the correct amount as well as the risk of incurring additional fees for late payments.
Acceptance of partial payments reduces the risk people will incur late fees and penalties because they cannot pay in full.
D. Driving SuspensionsDriver’s License Suspensions for Failure to Pay
Suspending a driver’s license is powerful leverage to coerce full payment of fines, so the more cases subject to license suspension, the more widespread the risk of coercion.
The more cases subject to license suspension, the more widespread the potential to coerce immediate payment of fees.
If permitted, courts may refuse to lift driver’s license suspensions after receiving partial payments, thus maintaining pressure on those owing fines and fees to make payment in full.
E. Procedural ProtectionsProcedural Protections in Municipal Courts
Providing a description of the alleged code violation reduces the risk of citations for contrived or vague offenses to raise revenue and enables the person cited to understand and respond to the accusation.
Providing the section number(s) of the municipal code said to be violated reduces the risk of citations for contrived or vague offenses to raise revenue and enables the person cited to understand and respond to the accusation.
Including the name and address of the accused makes it more likely the correct person will be served. This reduces the risk of compounding fines or even arrest as citations go unresolved because they were not received.
Including the name of the issuing person or municipality serves as a check on whether the municipality has jurisdiction over the person cited or the property at issue. It also informs the person cited of the entity bringing the case against them.
Clearly instructing the accused to appear in court at a stated time and place reduces the risk of missed court dates and associated fees.
Without notice, people may not be aware they can (a) contest citations without appearing in court and so feel coerced into payment if they cannot attend or (b) pay citations without attending court and so needlessly waste time and money going to court.
Cautioning that arrest is possible if a person does not attend court or follow an alternate procedure reduces the risk of arrest and accrual of related fees.
Notification of the procedure to assert one’s right to jury trial, if applicable, reduces the risk that people are deprived of the right because they do not properly claim it.
Discovery in municipal ordinance prosecutions allows the accused to know the case against them, gather evidence, and properly prepare a defense.
A jury trial permits the accused to be tried by impartial third parties, rather than by municipal judges who may face municipal pressure to convict.
Notification of the right to jury trial, if applicable, reduces the risk that people are deprived of that right because they are not aware of it.
The higher the burden of proof the municipality must clear in making its case, the less risk of municipalities bringing frivolous cases solely to raise revenue.
If municipalities must clear a higher burden of proof to convict in cases where incarceration can be ordered, the threat of incarceration may be less effective in coercing guilty pleas and payments.
A right of appeal safeguards justice by offering the accused access to state courts, free from potential institutional interests in the outcome, and promotes municipal court accountability through review of their judgments.
In line with the basic principle of fairness that underpins the constitutional prohibition on double jeopardy, people whose cases have been dismissed should not have to face possible conviction twice.
F. Punishment LimitationsLimitations on Municipal Punishments
A cap on the fines that can be assessed per offense restrains municipalities from setting exorbitant fines and limits pressure on the accused to plead guilty in order to avoid more crippling financial punishment.
A cap on fees and a ban on new fees may prevent municipalities and municipal courts from evading caps on fines to earn revenue. Regulating fees may also prevent municipalities from setting fees far in excess of the value of services provided.
If judges are not bound by minimum fines in the municipal code, they can set lower fines to account for mitigating circumstances and ability to pay.
Where municipal courts incorporate into their orders the amounts of court or prosecution fees being assessed, court personnel may be less likely to levy fees or charges not authorized by law. Inclusion of this information also reduces confusion about the precise amounts owed.
Specifying the names of any fees assessed provides some transparency as to the fees owed and their respective amounts.
It is fundamentally fair that only those convicted or pleading guilty or no contest pay court fees. If municipalities must secure a conviction or guilty plea before court fees can be levied, this also reduces their financial incentive to bring frivolous cases.
If courts offer non-jail alternative punishments, the accused may feel less pressure to plead guilty and pay fines and fees to avoid jail.
G. Incarceration and CollectionsRestrictions on Incarceration and Methods for Municipal Collections
The U.S. Supreme Court has long held it unconstitutional to incarcerate people economically unable to pay fines and fees. This prohibition may be better observed where states incorporate it into their own laws.
It is unconstitutional to threaten people with incarceration for inability to pay or to circumvent the U.S. Constitution’s ban on incarceration for inability to pay by incarcerating for contempt of court those unable to pay. These prohibitions may be better observed where states incorporate them into their own laws.
The U.S. Constitution’s prohibition on incarceration for inability to pay may be better observed where states include in their laws the requirement for ability-to-pay hearings.
Reasonable notice of an ability-to-pay hearing gives the accused time to instruct counsel, compile evidence of their income and expenses, and prepare argument, which may help prevent unconstitutional incarceration for inability to pay.
Providing notice of the right to counsel enables people to exercise that right. Counsel facilitates a fair hearing by assisting the accused in navigating the legal process and asserting their rights. It may therefore help protect against unconstitutional incarceration for inability to pay.
Municipal courts may be less likely to incarcerate for inability to pay in violation of the U.S. Constitution if they must consider a person’s actual financial situation and obligations in deciding ability to pay.
If permitted, municipalities may outsource fine collection to private entities that violate the U.S. Constitution’s prohibition on threatening incarceration for inability to pay.
If permitted to outsource fee collection, municipalities may contract with private entities that violate the constitutional bar on threatening incarceration for inability to pay.
If municipalities can use garnishment and similar methods to collect fines, this may increase the risk of abuse in collections and, if successful in raising revenue, encourage frivolous cases.
If municipalities are permitted to use procedures like garnishment to collect fees, this potentially increases the risk of abuse in collections and, if successful in raising revenue, encourages frivolous cases.
State law, as used here, encompasses a state’s constitution and statutes. It does not include case law, regulations or other potential sources of law.
Factor coding is based on states’ regulations of municipalities (i.e., cities, towns and villages, but not counties), which may not reflect local ordinances, policies or practices.
Coding reflects broad categorizations of complex state laws. For a fuller and more nuanced picture of the legal landscape, see the “Justification” tab in the Data and Codebook available for download under Data Downloads.
The authors thank the following individuals for their contributions. Bill Maurer and Josh House provided early feedback on the factors and states’ coding. Elyse Smith pitched in with crucial additional research. Diana Simpson provided invaluable legal fact-checking. Laura Maurice-Apel created the fun and functional web design concept. Justin Wilson worked with web developers to bring that concept to life. Kyle Sweetland and Alec Mena helped with data checking. Particular thanks to Lisa Knepper for the incisive thinking and deft management she brought to the project.
The original research comprising the database was made possible through the support of Arnold Ventures. The opinions expressed in this report are the authors’ and do not necessarily reflect the views of Arnold Ventures.