Background
Momentum to end criminal fees is growing in the state and individual counties have begun to view criminal justice fees as “high pain, low gain,” and have taken steps to eliminate them. In 2017, the County of Los Angeles eliminated its public defender registration fee. In May 2018, San Francisco eliminated all criminal administrative fees under its control, freeing over 21,000 people of more than $32,000,000 in outstanding criminal administrative fees and surcharges. Most recently, in December 2018, the Alameda County Board of Supervisors voted to eliminate a host of county-imposed criminal fees. The board voted to eliminate $26,000,000 in fees for tens of thousands of Alameda County residents. A copy of the Alameda County Board of Supervisors approved ordiance is attached for reference.
With the passage of Senate Bill 190 in 2017, the State of California eliminated juvenile justice fees in all counties. In January 2019, Senate Bill (SB) 144 was introduced by Sen. Holly Mitchell and would state the intent of the Legislature to enact legislation to eliminate the range of administrative fees that agencies and courts are authorized to impose to fund elements of the criminal legal system, and to eliminate all outstanding debt incurred as a result of the imposition of administrative fees. There has recently been discussion at the state level about the proposed elimination of specific fees – the probation fee, the public defender fee, and work furlough fee. This will likely be amended into SB 144 (Mitchell). SB 144 is currently on referral to the Senate Rules Committee for assignment. A copy of SB 144 is attached for reference.
The general argument in favor of continuing criminal justice fees is that these fees generate revenue for public programs and to fund their operations. Elimination of certain fees is effectively eliminating a revenue source and could potential result in reduction in County services. This needs to be weighed against a strong argument against imposing criminal justice fees. There is public concern that criminal justice fees are inequitable in that these fees are disproportionately imposed on communities of color and are especially harmful for Black and Latinx people, who are overrepresented in the criminal legal system across the state. Additionally, many view these fees as being regressive; hurting the poorest the most. Criminal justice fees are also viewed as being an inefficient source of government revenue. With the majority of criminal cases qualifying for indigent defense, these fee are a poor way to raise revenue and are often difficult to collect. There is also concern that these fees are impoverishing in that large monetary sanctions translate to large levels of debt that reinforce poverty. Lastly, there is concern that criminal fees could undermine public safety. The goal of a successful post-incarceration period is to reintegrate into the community, yet these fees are perceived as creating significant barriers to successful reentry.
Analysis of adult criminal justice fees has proven to be complicated. State law dictate a very complex process for the distribution of fine and fee revenue. Per a recent Legislative Analyst’s Office report, state law currently contains at least 215 distinct code sections specifying how individual fines and fees are to be distributed to state and local funds, including additional requirements for when payments are not made in full.
Today’s report will focus on those fees that have been positively identified as being local and discretionary fees (i.e. not mandated by California law), specifically Probation Fees, Public Defender Fees, and Sheriff Custody Alternative Facility Fees. Further research and analysis will be needed on other fines and fees collected by the Contra Costa Superior Court of California (Court) and remitted to the County.
Probation Fees
Probation Report Fee - In 2009, the Board of Supervisors adopted Ordinance 2009-28 authorizing the Probation Department to charge a fee of $176 for the cost of generating a probation report to the Court. This is one-time fee.
Cost of Probation Fee - In 2010, the Board of Supervisors adopted Resolution No. 2010/262 to increase the monthly Cost of Probation Fee from $50 per month to $75 per month (average daily cost of $2.50).
Probation Drug Testing Fee – The Probation Department currently charges $10 per month (average daily cost of $0.33) for drug testing.
Probation Dept. Drug Diversion Fee – The Probation Department currently receives approximately $1,000 per year from this fee.
All adults that have been ordered to formal Probation, which includes mandatory supervision, and ordered to pay Probation fees, drug testing fees and/or the cost of their court report shall be assessed for their ability to pay said fees. The ability-to-pay determination is sent to the Court. The Court will order the amount the probationer is required to pay and refer the probationer to the Court Collections Unit for collection.
The following table illustrates the total amount of probation fees a probationer could hypothetically be charged. This is assuming the probation is placed on 3 years of probation and requires monthly drug testing. Over 3 years, a probationer could be charged up to $3,236 for probation.
| Example Probationer |
Cost |
# of Months |
Total |
| Supervision |
$75/month |
36 |
2,700 |
| Drug Testing |
$10/month |
36 |
360 |
| Report Fee |
$176 one-time |
n/a |
176 |
| Total Cost of Probation |
|
|
3,236 |
Cost of Collection and Revenue
The following table shows the actual and estimated cost of collection and revenue for FY 17/18 and FY 18/19, respectively. The Probation fee revenue is used to offset the salaries of adult Deputy Probation Officers.
| Fee |
FY 17/18 |
Estimated FY 18/19 |
| Collection Cost |
Revenue |
Collection Cost |
Revenue |
| Probation Dept. Drug Diversion Fee (PC 1001.9) |
143 |
1,249 |
10 |
1,000 |
| Cost of Probation Fee |
91,957 |
475,573 |
82,000 |
444,000 |
| Probation Cost of Drug Test Fee (PC 1203.1(ab)) |
12,332 |
60,638 |
12,000 |
61,000 |
| Probation Report Fee (PC 1203.1(b)) |
4,554 |
27,333 |
5,000 |
30,000 |
| Total |
108,986 |
564,793 |
99,010 |
536,000 |
Public Defender Fees
Penal Code 987.81 authorizes the Court to consider and make a determination of the defendant’s ability to pay all or a portion of the costs of legal assistance provided through the public defender or private counsel appointed by the court and may order the defendant to pay all or a part of the cost.
Adults charged with capital or homicide cases may have to pay fees ordered by the court at the conclusion of the case to reimburse the County for the cost of outside counsel. The defendant is referred to the Contra Costa Superior Court Collections Unit by the judge who orders the amount to be paid. The Court makes a determination as to how much, if any, of the ordered amount the person can afford to pay. This determination is made on a sliding scale based upon the person's financial resources. The Office of the Public Defender is not involved in the determination of, or collection of fees.
Cost of Collection and Revenue
The following table shows the actual and estimated cost of collection and revenue for FY 17/18 and FY 18/19, respectively. The Public Defender Fee revenue is used to offset cost of County trial court function, specifically costs associated with capital cases.
| Fee |
FY 17/18 |
Projected FY 18/19 |
| Collection Cost |
Revenue |
Collection Cost |
Revenue |
| Public Defender Fee |
1,849 |
26,100 |
- |
121,000 |
Sheriff Office Custody Alternative Facility Program Fees
In 2009, the Board of Supervisors approved Resolution No. 2009/435 setting the fees for the Office of the Sheriff custody alternative programs. The current fees for the Custody Alternative Facility programs are provided below.
| Fee |
Cost |
| Electronic Home Detention and Alcohol Monitoring: |
|
| Application fee |
$125.00 one-time |
| Electronic Home Monitoring Only |
$20.00 per day |
| Alcohol Monitoring Only |
$20.00 per day |
| Electronic Home Monitoring and Alcohol Monitoring |
$23.50 per day |
| Urinalysis Test |
$6.00 per test |
| Work Alternative Program: |
|
| Application fee |
$125.00 one-time |
| Daily Fee |
$16.00 per day |
Ability to Pay Process
The current Custody Alternative Facility (CAF) procedure provides for the CAF participant to be completely enrolled in a CAF program prior to discussing fees or ability to pay. Participants review and complete the personal budget with their assigned CAF Specialist. The participant will then request a reduction/waiver of fees based on their stated ability to pay. A CAF Sergeant will review and approve the Personal Budget form. A participant's inability to pay all or a portion of any fee(s) will not preclude them from being enrolled or completing any program offered by the Custody Alternative Facility.
Process of Collections
CAF fees are collected after the participant is enrolled in a CAF program. Fees can be paid in the manner which is most appropriate for the participant. Participants can pay their total program fees at one time or over a pre-determined length of time. There is no process established to collect payment from participants who complete the program, but do not pay. A participant's ability to successfully complete a CAF programs is not impacted by lack of payment.
Future Plan for CAF Electronic Home Detention and Work Alternative Programs
CAF is currently working with representatives from the Office of Re-Entry and Justice, the Public Defender’s Office, and Reentry Solutions Group to present updated Ability to Pay forms.
Revenue
The following table shows the actual and estimated revenue for FY 17/18 and FY 18/19, respectively. The CAF Fee revenue is used to offset program costs.
| Program |
FY 17/18 |
Projected FY 18/19 |
| Work Alternative Program |
443,055 |
423,000 |
| Electronic Home Detention |
568,541 |
12,000 |
| Total |
1,011,596 |
435,000 |
|