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Wayne A. Logan and Ronald F. Wright, Mercenary Criminal Justice, 2014 U. Ill. L. Rev. 1175 (2014).

While budget crises have sparked efforts to curb the costs of mass incarceration, financial considerations have also intensified incentives for the aggressive use of a less-visible form of punishment—fines, fees, assessments, and related ways to make people pay. Collectively, these ways to extract money through criminal justice processing are called “legal financial obligations” or LFOs. The investigation into Ferguson by the U.S. Department of Justice yielded powerful insights into the hidden institutional pressures to raise revenue through pursuing community members and exacting LFOS. This hidden tax is harshly regressive—disproportionately imposed on community members who are often the least financially situated to pay.

Well before the Justice Department’s Ferguson report, Wayne A. Logan and Ronald F. Wright were sounding the alarm about institutional incentives to slam people with LFOs. Logan and Wright’s important article sheds light on the institutional incentives to extract money and the limited constraints to safeguard against what they dub mercenary justice. I have encouraged my students engaged in criminal justice advocacy and research to read and circulate Logan and Wright’s important article because it is compelling and accessible. The piece accomplishes an important feat for law review articles aimed at spurring reform—being of great value to scholars and specialists as well as a general audience able to act on reform proposals.

Logan and Wright begin by tracing the long pedigree of perverse incentives for mercenary justice. In both England and the United States, constables and justices of the peace were paid through fees paid by defendants and through reward money for successful prosecutions. (Pp. 1180-1185.) This created incentives for orchestrating crimes to collect fees and rewards, and paying the players through kickbacks. (P. 1182.) It also created perverse incentives to vigorously pursue crimes where the financial benefits were greatest rather than those with lower financial payouts even if the harms were more serious. (P. 1182.)

The rise of professional police forces and prosecutors tempered the profit-driven incentives with professionalized norms and ethics—but concerns over enforcement decisions driven by money-making persisted. (Pp. 1183-1184.) Periodically, allegations still flared that officials were arresting poor people for vagrancy and public drunkenness to ramp up volumes of cases and secure more funding. (P. 1184.)

Moving from the past to the present, Logan and Wright explain the complex landscape of LFOs attached to low-level misdemeanors and infractions. (Pp. 1185-1196.) Examples of pre-judgment LFOs include “booking fees” to pay the government for the costs of enforcement and other aims; pre-trial diversion monitoring fees to prosecutors; abatement fees to secure dismissal of charges or stayed adjudication; and fees accompanying applications for court-appointed counsel for the indigent. (Pp. 1187-1189.) Examples of post-judgment LFOs include the assessment of court costs and mandated assessments after conviction; “pay-to-stay” assessments for the costs of incarceration; fines and forfeitures in connection with the offense; and expungement fees in contexts where offenders qualify to expunge their record. (Pp. 1192-1196.) The types and mixes of LFOs vary from jurisdiction to jurisdiction.

Logan and Wright analyze constitutional limits on judicial financial incentives to secure conviction. (Pp. 1197-1209) They illuminate how the cases reveal two main concerns—neutrality and individualization. In terms of neutrality, due process does not forbid the government from financially benefiting from criminal law enforcement but it imposes limits such as forbidding judges to benefit personally. Individuality means that the LFO and penalties for nonpayment should be based on the nature of the offense and the individual offender’s ability to pay. In general, however, courts tend to defer to legislatively defined fines, fees and costs. (P. 1209.)

Arguing that existing judicial doctrines are a limited and insufficient constraint, Logan and Wright propose new principles to govern LFOs. (Pp. 1210-1225.) They argue that payments exacted earlier in criminal justice processing, such as pre-adjudication diversion processing fees,   are more suspect. (P. 1211.) They also argue that other risk factors for self-dealing include the prominence of revenue generation as a purpose for an LFO; the same agency collecting and benefitting from the LFO; and private agencies doing the collecting. (Pp. 1212-1213.)

Logan and Wright recommend the creation of independent commissions analogous to sentencing commissions to review, monitor and improve LFO practices and decide whether to approve new LFOs. (Pp. 1215-1223.) A commission could take a system-wide view of LFOs to safeguard against the proliferation and compounding of onerous LFOs and examine the effects of LFOs on defendants.

Hopefully legislators as well as scholars will use Logan and Wright’s valuable article. Logan and Wright offer a well-reasoned feasible proposal at an important time of awakening about the costs exacted by criminal justice processing. The Ferguson report revealed how regressive bleeding of criminal justice defendants to generate revenue exacts huge costs in terms of eroding community trust and peace and intensifying tensions at risk of eruption. While it takes more than a commission to address the deep challenges, an LFO commission and Wayne and Logan’s principles to guide the commission are an important start.

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Cite as: Mary Fan, Making People Pay – and Pay, and Pay, JOTWELL (August 12, 2015) (reviewing Wayne A. Logan and Ronald F. Wright, Mercenary Criminal Justice, 2014 U. Ill. L. Rev. 1175 (2014)),