NY Lawmakers Renew Push To Ban 'Predatory' Court Fees

Raising a child with a mental illness had always been hard for Queens, New York, resident Peggy Herrera, but things got worse after her husband died of cancer and her son, who never recovered from the loss, began getting in trouble with the law.

After several convictions during his late teens and early 20s, Herrera's son, Justin Baerga, racked up attorney fees, bail payments, and court-imposed fines and fees totaling more than $12,000. That amount included court fees of more than $200 for each of his convictions, youthful offender fees and fees for traffic violations. It took Herrera about four years to pay off the debt, she said.

"That impacted my family a lot," Herrera, an activist at Center for Community Alternatives, told Law360. "When they said he had to pay, we all know that he can't pay that. I have to pay it."

On July 2, as he was celebrating his 24th birthday with a group of friends, Baerga was shot and killed. Despite the void left by her son's death, Herrera has continued to advocate for the elimination of court fees, which she says hurt low-income New Yorkers like her.

"It's intentional, and they're taking it off the poorest people," she said.

The final price tag for a criminal conviction in New York includes several costs. While fines are sometimes imposed as punishment, either instead of jail time or in addition to it, fees are surcharges the government attaches to all convictions, and they can add up to hundreds of dollars.

One particular court fee, called the mandatory surcharge, is applied to every conviction — from traffic violations up to felonies — and cannot be waived even when a defendant shows financial hardship. And a crime victims assistance fee is assessed even when there is no victim.

Certain offenses also require payment of a sex offender registration fee, and most require a DNA databank fee, a $50 levy purportedly aimed at funding a state database that collects DNA samples from convicts. Another fee is levied on people who undergo probation supervision.

As part of a practice called commissary garnishment, incarcerated people see their prison bank accounts, which are designed to allow them to buy items such as toothbrushes and socks, tapped to cover outstanding fees or fines.

But a bill making its way through the state legislature, dubbed the End Predatory Court Fees Act, seeks to abolish both mandatory surcharges as well as probation fees. It would also eliminate mandatory minimum fines by giving judges power to set fines based on the defendants' ability to pay. Finally, the bill would ban commissary garnishment and end incarceration for unpaid fees and fines.

The measure has been introduced in two earlier legislative sessions, the first time in October 2020, without passing. But this time, with inflation sending cost-of-living expenses in New York City soaring, supporters say the bill has a better shot.

"I think there's a very good chance that this bill passes this year," said Zach Ahmad, a senior policy counsel at the New York Civil Liberties Union who has been campaigning for the bill. "There's growing recognition of this problem both in New York and across the country."

Assembly Member Kenny Burgos, who represents portions of the Bronx and is a sponsor of the bill, said that the effects of inflation on low-income people has made it harder than ever to justify court fees and has made abolishing them a priority.

"If we take a really hard look at it, especially with the economic landscape at the moment, I think this bill has merit and really should pass this year," Burgos said. "Cost of living has gone through the roof, people have seen everything — from their grocery bills, utility bills, to rent — increase. And [court fees are] just another form of bill that New Yorkers just cannot afford."

The bill has 23 co-sponsors in the Senate and 26 in the Assembly. A spokesperson for Gov. Kathy Hochul told Law360 that she will consider signing the legislation if it passes. All co-sponsors of the bill are Democrats.

Sen. Anthony H. Palumbo, a Republican representing a portion of Long Island who sits on the Senate's Codes Committee, where the bill is currently being considered, said he opposes it.

"There is nothing predatory about mandatory fees requiring defendants to pay into the crime victims fund and DNA fund after a conviction," he said. "This bill is one of many so-called 'reforms' that continue New York State down the dangerous path of prioritizing criminals over victims."

New York's mandatory fee structure was adopted in the 1980s as the state looked for new funding streams amid a national political climate that was generally supportive of tough-on-crime policies. Since the structure's adoption, the legislature has gone on to pass measures hiking the fees, which studies say have risen at a rate faster than inflation.

Speaking at a press conference last month in front of a New York City supermarket to emphasize how paying court fees can affect people's livelihoods, Sen. Julia Salazar, a Democrat who represents low-income and rapidly gentrifying neighborhoods in Brooklyn and Queens, called the fees a form of "regressive tax" that weighs more heavily on poor people.

"The responsibility for funding our court system should never fall on the backs of working people. But right now, that is the reality in our state. It doesn't need to be this way," she said.

In addition to removing the mandatory surcharge, the proposed legislation would eliminate mandatory minimum fines, such as the $200 penalty attached to offenses like driving with a suspended license. Currently, judges have no power to waive or lower fines. Under the proposed bill, they would have the discretion to set fines, but only after considering a defendant's ability to pay and whether a fine is an appropriate sentence.

"Let's say the person has a substance use issue and is going to get treatment as part of their sentence. That might be a situation where a judge wouldn't impose a fine because they're going to have to pay for treatment," said Jacqueline Gosdigian, a senior policy counsel at Brooklyn Defender Services.

Efforts to abolish court fees are gaining momentum nationwide. Since 2017, at least 24 states have taken some court fees off their books. In October, meanwhile, the Fines and Fees Justice Center, a national advocacy group, launched a campaign to push policymakers in state legislatures across the country to abolish fees.

The National Center for Access to Justice, which measures the burden of fine and fee regimes in all 50 states, ranked New York third alongside Colorado and New Jersey, behind only Washington and Rhode Island.

While the Empire State has adopted some reforms in recent years, such as abolishing court fees in juvenile and parole cases, advocates say its strict mandatory surcharge also needed to change.

New York is one of only four states — along with Alaska, Minnesota and Mississippi — with laws explicitly requiring defendants to foot the bill for mandatory surcharges regardless of their ability to pay.

If passed, New York's bill would be the boldest legislative move yet on issues pertaining to fees and fines in the U.S., Antonya Jeffrey, the New York director for the Fines and Fees Justice Center, told Law360.

"We'd pretty much have the best-in-the-country laws around the mandatory surcharge and how we do fees," she said.


Justice reform advocates say court fees exacerbate inequality in the justice system, which severely harms people of color.

"You've got a criminal legal system that is already discriminatory, is already racist, is already flawed in all the ways that we know," Ahmad told Law360. "And then you're taking that same group of people that are targeted by that system and saddling them with fees that in many cases they cannot afford to pay."

Advocates have complained that the Office of Court Administration doesn't track how much it reaps through fees versus how much it takes in through fines and forfeiture. The convoluted structure of New York's court system makes it harder to track how much money is collected and where it goes to.

In a report released this week, the NYCLU estimated that from 2010 through 2019, New York courts imposed more than $393 million in court fees related to misdemeanors and felonies, and about $483 million related to violations — respectively roughly $39 million and $48 million per year.

Where revenue extracted from fines and fees goes depends on the underlying violation and which agency collects them. State-funded courts, town-funded courts and administrative tribunals operated by the Department of Motor Vehicles all have authority to impose fees and have a responsibility to collect them.

A spokesman for the OCA told Law360 that courts imposed at least $12.6 million in fees and fines in 2021, the last year for which data is available. That figure offers only a partial view, however, as it only includes courts outside New York City hearing cases involving misdemeanors and crimes punishable by no more than a year of imprisonment. Data for all other state courts is excluded.

And while fees have specific names attached to them — such as the DNA Databank fee and the sex offender registration fee — the money often doesn't go to fund the programs their names suggest, but rather to the state's general fund.

Other fees, such as the crime victim assistance fee and the supplemental sex offender victim fee, are deposited into the state's Criminal Justice Improvement Account, which funds programs assisting crime victims and witnesses and provides payments to victims.

But it is unclear how much of the money collected through fees and fines in New York actually ends up funding the state's court system, as the OCA said that revenue extracted from them goes to the state's general fund.

"It's been a mystery for several years in trying to figure out where that money goes," said Jeffrey.

In addition to economic and racial inequity, advocates have focused on another aspect of fees that might interest lawmakers: fiscal inefficiency.

New York state doesn't track how much of the court fees and fines imposed in a given year it actually collects. According to the NYCLU report, court fees from criminal convictions are collected at a rate of just 27%, and fees from violations were collected at a rate of 58%. The report estimates that the state collects about $38 million annually from mandatory surcharges, crime victim assistance fees, and DNA databank fees attached to misdemeanors, felonies, and violations.

A 2019 study by the Brennan Center for Justice looking at court fees regimes in 10 counties across Texas, Florida and New Mexico showed that some jurisdictions spend more money on trying to collect the fees from defendants than what they ultimately get in return. The report concluded that court fees are an inefficient source of government revenue and that states should pass legislation banning them.

"They are a really ineffective form of revenue generation," Katie Schaffer, a director of advocacy and organizing at Center for Community Alternatives, told Law360. "National data shows that little is collected in return for those costs. But these court fees have a very real impact on people and families."

Advocates also say fee regimes can create an incentive for police to make arrests and issue summonses as a way of raising revenue. A report from the U.S. Department of Justice in 2015, for instance, showed that 20% of the $12 million police budget in Ferguson, Missouri, in fiscal year 2013 came from municipal court fees.

Tess Cohen, a criminal defense attorney at ZMO Law PLLC and former prosecutor who is running for Bronx district's attorney, said that Ferguson represented an "extreme case," but stressed that even when a municipality bases only a fraction of its budget on fines and court fees, "it has the potential to create perverse incentives."

"It's fundamentally a problem when we are relying on people committing crimes to fund anything in our budget," she said.

Cohen said that fines and fees can be particularly frustrating for defendants charged with minor crimes who profess their innocence. Instead of dismissing their cases, she said that prosecutors will sometimes push defendants to plead guilty to lesser violations such as disorderly conduct.

While the appeal is strong — no jail time, no criminal record and no need to come back to court to fight the charges — it comes with a very literal price: fines and mandatory surcharges.

"We just inflict this fine on people that can be quite significant, which is totally removed from any sense of wrongdoing by that person," Cohen said.

The cost of not paying fines and fees, meanwhile, can be severe, as judges may issue bench warrants, which result in arrests and days in jail.


Gosdigian called the incarceration of people who fail to pay fines and fees "a very real thing."

Meanwhile, a 2021 report by the New York City Department of Corrections pegged the cost of incarcerating a person at Rikers Island — the city jail complex notorious for its violence — at $1,500 per day.

Paula Garcia-Salazar, an attorney at the Legal Aid Society of New York, said it's "extremely common" for people to be arrested on warrants for failure to pay fines or court fees. Such situations lead to clogged dockets and wasted resources as judges, clerks, officers, prosecutors and attorneys need to be in court to process the added cases, she said.

"By the time that happens, it has cost the court hundreds if not thousands of dollars to bring somebody back in over and over again," Garcia-Salazar said. "And the whole time, our clients are really afraid that if they can't get the money together, they'll be sent to jail."

--Graphics by Ben Jay. Editing by Adam LoBelia.

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