Introduction: Barriers to Litigation Access
n Griffin v. Illinois,1×1. 351 U.S. 12 (1956). a plurality of the Supreme Court proclaimed: “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”2×2. Id. at 19 (plurality opinion). In announcing this principle of equal justice, Griffin — which held that indigent defendants must be exempt from payment for trial transcripts where the state has conditioned the right to criminal appeals upon production of such transcripts3×3. Id. at 13–15, 19–20. — inaugurated “the fundamental rights strand of equal protection,” which protects “against governmental action producing disparate wealth effects with regard to certain ‘fundamental’ interests.”4×4. Michael Klarman, An Interpretive History of Modern Equal Protection, 90 Mich. L. Rev. 213, 264 (1991). Beginning with this prototypical case,5×5. See M.L.B. v. S.L.J., 519 U.S. 102, 110 (1996). the Court has continued to construct this doctrine of “equal justice” upon the mutually reinforcing textual pillars of the Constitution’s Equal Protection and Due Process Clauses.6×6. See Bearden v. Georgia, 461 U.S. 660, 665 (1983); Helen A. Anderson, Penalizing Poverty: Making Criminal Defendants Pay for Their Court-Appointed Counsel Through Recoupment and Contribution, 42 U. Mich. J.L. Reform 323, 361 (2009) (“The Supreme Court has developed a blended due process and equal protection approach to cases involving poverty and access to the courts.”); see also Beth A. Colgan, Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55, 64 & n.34 (2019) (collecting scholarship that “argue[s] that the dual use of constitutional provisions, including the due process and equal protection clauses, can render the provisions mutually reinforcing,” id. at 64 n.34, thereby “providing greater protection than either [provision] would have on its own,” id. at 64); Brandon L. Garrett, Wealth, Equal Protection, and Due Process, 61 Wm. & Mary L. Rev. 397, 403 (2019) (“Section 1 of the Fourteenth Amendment should be understood holistically as part of a structure designed to ensure citizenship (and the rights thereof) and government’s duties to persons.”); Laurence H. Tribe, Equal Dignity: Speaking Its Name, 129 Harv. L. Rev. F. 16, 17 (2015) (“Obergefell’s chief jurisprudential achievement is to have tightly wound the double helix of Due Process and Equal Protection into a doctrine of equal dignity.”).
A. The Modern Standard
If Griffin represents the “foundation case,”7×7. M.L.B., 519 U.S. at 110. then Bearden v. Georgia8×8. 461 U.S. 660. is the modern touchstone for evaluating claims that wealth-based barriers to litigation access (especially in the criminal justice realm) violate the principle of equal justice.9×9. See Colgan, supra note 6, at 59 n.12, 62 (identifying Bearden as the “key case,” id. at 59 n.12, and referring to Griffin and its progeny as the “Bearden line,” id. at 62). Bearden held that the Constitution prohibits a sentencing court from revoking probation for failure to pay a fine and restitution, absent the findings that the defendant “willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay,” and that “alternative measures of punishment other than imprisonment” are inadequate to meet the State’s legitimate interests.10×10. Bearden, 461 U.S. at 672. In reaching this conclusion, the Court articulated a four-part test for assessing “equal justice” claims — that is, challenges to policies that deny indigents equal access to a fundamental right: courts should make “a careful inquiry”11×11. Id. at 666. into (1) the nature of the individual interest concerned; (2) the extent to which that interest is impacted by the government policy; (3) whether the nexus between the policy’s purpose and means is rational; and (4) whether any alternative means exist to accomplish that purpose.12×12. Id. at 666–67 (quoting Williams v. Illinois, 399 U.S. 235, 260 (1970) (Harlan, J., concurring in the result)). Applying this test, the Court concluded that the state’s “penological interests”13×13. Id. at 670. in punishing a failure to pay cannot justify impinging on an individual’s fundamental right to freedom from bodily restraint, unless the state first considers the individual’s ability to pay and whether the state’s interests can be “served fully by alternative means.”14×14. Id. at 672.
B. The Modern Standard’s Shortcomings
Perhaps because of Bearden’s idiosyncratic blending of equal protection and due process principles, courts and scholars alike have struggled to ascertain the contours of its equal-justice test. Recent scholarship, however, has redoubled attempts to bring clarity to Bearden’s nearly forty-year-old test.15×15. See Colgan, supra note 6, at 91–115 (providing detailed doctrinal analysis of Bearden); see also Darryl K. Brown, The Case for a Trial Fee: What Money Can Buy in Criminal Process, 107 Calif. L. Rev. 1415, 1432–34 (2019) (describing Bearden’s legacy vis-à-vis regulation of incarceration for inability to pay fines and fees); Jaclyn Kurin, Indebted to Injustice: The Meaning of “Willfulness” in a Georgia v. Bearden Ability to Pay Hearing, 27 Geo. Mason U. C.R. L.J. 265, 297–305 (2017) (discussing courts’ differing interpretations of “willful refusal,” id. at 297, and arguing that courts should interpret willfulness to include “intentional and volitional elements,” id. at 305); Wayne A. Logan & Ronald F. Wright, Mercenary Criminal Justice, 2014 U. Ill. L. Rev. 1175, 1225 n.369 (noting that courts often construe Bearden narrowly); Andrea Marsh & Emily Gerrick, Why Motive Matters: Designing Effective Policy Responses to Modern Debtors’ Prisons, 34 Yale L. & Pol’y Rev. 93, 96–97, 118–19 (2015) (arguing that the Bearden line of cases has built “personal responsibility . . . into the foundations of constitutional limitations on incarceration for debt,” id. at 118); Colin Reingold, Essay, Pretextual Sanctions, Contempt, and the Practical Limits of Bearden-Based Debtors’ Prison Litigation, 21 Mich. J. Race & L. 361, 362–63 (2016) (attempting to reconcile Bearden’s widespread invocation in courtrooms and criminal codes with the fact that “every day in courtrooms across America[,] criminal defendants are sent to jail for being poor,” id. at 362); Note, State Bans on Debtors’ Prisons and Criminal Justice Debt, 129 Harv. L. Rev 1024, 1026 (2016) (“Most commentators have thus far focused on the 1983 Supreme Court case Bearden v. Georgia.”); Ann K. Wagner, Comment, The Conflict over Bearden v Georgia in State Courts: Plea-Bargained Probation Terms and the Specter of Debtors’ Prison, 2010 U. Chi. Legal F. 383, 388 (2010) (contending Bearden requires courts to treat plea-bargained probation terms no differently than judge-imposed probation terms). The renewed interest in deciphering the Bearden line is partly attributable to the recent proliferation of “legal financial obligations” (LFOs) — the monetary sanctions, including fines, fees, restitution, and surcharges, imposed upon criminal defendants16×16. Alexes Harris, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor 18 (2016) (“[S]tates have recently formalized the imposition and enforcement of monetary sanctions in state laws and expanded the types of fines, fees, and surcharges imposed on felony defendants at the time of conviction.”); John D. King, Privatizing Criminal Procedure, 107 Geo. L.J. 561, 594 (2019) (“[T]he use and popularity of court costs and fees has greatly increased in recent years.”); Karin D. Martin et al., Monetary Sanctions: Legal Financial Obligations in US Systems of Justice, 2018 Ann. Rev. Criminology 471, 472 (noting “ubiquity” of LFOs). — and the surging community activism17×17. See, e.g., John Hickey, Berkeley Helps to Push Back Against Excessive California Court Fees and Fines, Berkeley News (June 21, 2019), https://news.berkeley.edu/2019/06/21/berkeley-helps-to-push-back-against-excessive-california-court-fees-and-fines [https://perma.cc/5A7J-4JTP] (describing protests in Ferguson and lobbying efforts in California). and civil rights litigation18×18. See, e.g., Garrett, supra note 6, at 402 (describing a “wave of national litigation concerning the constitutionality of fines, fees, cash bail, and other ways in which the indigent lose important rights”). challenging LFO practices, from Ferguson, Missouri,19×19. See Consent Decree at 10, 79–80, United States v. City of Ferguson, 4:16-cv-000180 (E.D. Mo. Mar. 17, 2016) [hereinafter Ferguson Consent Decree]. to Washington State.20×20. ACLU, In for a Penny: The Rise of America’s New Debtors’ Prisons 65–67 (2010), https://www.aclu.org/sites/default/files/field_document/InForAPenny_web.pdf [https://perma.cc/5S6J-JQUP] (describing activism around LFOs in Washington); Press Release, ACLU of Wash., Legislature Passes Bill to Bring Fairness to Washington’s System of Legal Financial Obligations (Mar. 6, 2018), https://www.aclu-wa.org/news/legislature-passes-bill-bring-fairness-washington%E2%80%99s-system-legal-financial-obligations [https://perma.cc/F7GU-6PD9].
The Obama DOJ, ACLU, NAACP Legal Defense and Educational Fund, Inc. (LDF), and public defender offices, including ArchCity Defenders, Ohio Office of the Public Defender, and San Francisco Public Defender, have all litigated the constitutionality of LFO practices. See In re Humphrey, 228 Cal. Rptr. 3d 513, 516 (Ct. App. 2018); Ferguson Consent Decree, supra note 19; S.F. Pub. Def., Annual Report and 2019 Calendar (2019), http://sfpublicdefender.org/wp-content/uploads/sites/2/2019/01/2018-Report-2019-Calendar.pdf [https://perma.cc/JF8N-YV2W class=”small-caps”>]; Press Release, ACLU, Settlement Reached in Lawsuit Ending Benton County’s Modern-Day Debtors’ Prison (June 1, 2016), https://www.aclu.org/press-releases/settlement-reached-lawsuit-ending-benton-countys-modern-day-debtors-prison [https://perma.cc/2M67-D28A]; Press Release, ArchCity Defs., ArchCity Defenders Files Subsequent Debtors’ Prison Lawsuit Against Edmundson (Dec. 12, 2018), https://www.archcitydefenders.org/archcity-defenders-files-subsequent-debtors-prison-lawsuit-against-edmundson-2 [https://perma.cc/XGN7-JUWR]; Press Release, NAACP Legal Def. & Educ. Fund, Inc., LDF Files Amicus Brief in Support of Requiring Courts to Assess Defendants’ Ability to Pay Court Costs (May 7, 2019), https://www.naacpldf.org/press-release/ldf-files-amicus-brief-support-requiring-courts-assess-defendants-ability-pay-court-costs [https://perma.cc/U69Z-HNA6]; Dan Trevas, Must Trial Court Consider Ability to Pay When Asked to Waive Court Costs?, Ct. News Ohio (Jan. 7, 2020), http://www.courtnewsohio.gov/cases/previews/20/0107/0107.asp [https://perma.cc/7564-U5FX].
The Civil Rights Corps has been especially prolific in litigating issues related to criminal justice debts. See Challenging the Money Bail System, C.R. Corps, https://www.civilrightscorps.org/work/wealth-based-detention [https://perma.cc/HG3C-EMX4].
The situation in Ferguson — which garnered national attention in the wake of the police killing of unarmed Black teenager Michael Brown — has become emblematic of a particularly disturbing pattern21×21. See, e.g., Joseph Shapiro, In Ferguson, Court Fines and Fees Fuel Anger, NPR (Aug. 25, 2014, 5:56 PM), https://www.npr.org/2014/08/25/343143937/in-ferguson-court-fines-and-fees-fuel-anger [https://perma.cc/MW93-87PC] (tying protests against police in Ferguson to its LFO practices). : as LFOs have increased in popularity, they have also “come to serve as a fiscal crutch for cash-strapped governments,” who wield them against poor constituents as a “regressive tax.”22×22. King, supra note 16, at 594. See generally Lisa Foster, Injustice Under Law: Perpetuating and Criminalizing Poverty Through the Courts, 33 Ga. St. U. L. Rev. 695 (2017). In 2015, the Justice Department released a report exposing Ferguson’s reliance on LFOs and overpolicing to generate municipal revenue that brought national attention not only to the injustice of such revenue-raising police practices,23×23. See Civil Rights Div., U.S. Dep’t of Justice, Investigation of the Ferguson Police Department 9–15 (2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf [https://perma.cc/D5CT-MZY5]. but also to the overt racial bias with which such practices are implemented.24×24. See U.S. Comm’n on Civil Rights, Targeted Fines and Fees Against Communities of Color: Civil Rights & Constitutional Implications 1 (2017), https://www.usccr.gov/pubs/2017/Statutory_Enforcement_Report2017.pdf [https://perma.cc/4E9Q-7KQB] (“The Department’s investigation revealed that the financial relationship between Ferguson’s municipal courts and its police department resulted in the disproportionate ticketing, fining, and jailing of its African American residents. The Department also found evidence of intentional racism in these practices.”). While Ferguson has become a symbol of these problems, it is unfortunately not unique in punishing its residents, especially those of color, for their poverty.25×25. Id. (noting DOJ has issued two “Dear Colleague” letters and has sponsored grants relating to fines and fees in five state jurisdictions). See generally id. ch. 3. Across all locales, the reliance on LFOs consistently results in overpunishment of society’s poorest populations, a negative impact that falls disparately on people of color.26×26. See, e.g., Joseph Shapiro, As Court Fees Rise, the Poor Are Paying the Price, NPR (May 19, 2014, 4:02 PM), https://www.npr.org/2014/05/19/312158516/increasing-court-fees-punish-the-poor [https://perma.cc/P9YZ-9GVM]. This surge in LFOs directly implicates Bearden’s central teaching — that imprisonment for failure to pay is presumptively unconstitutional — because the increase in LFOs has been accompanied by a concomitant increase in “incarceration of individuals for failure to pay LFOs.”27×27. Neil L. Sobol, Charging the Poor: Criminal Justice Debt & Modern-Day Debtors’ Prisons, 75 Md. L. Rev. 486, 492 (2016); see also U.S. Comm’n on Civil Rights, supra note 24, at 15–16.
Furthermore, because the Bearden line applies beyond cases in which imprisonment is at stake,28×28. M.L.B. v. S.L.J., 519 U.S. 102, 111 (1996); see Pamela S. Karlan, Equal Protection, Due Process, and the Stereoscopic Fourteenth Amendment, 33 McGeorge L. Rev. 473, 481 & n.55 (2002). the “equal justice” doctrine should be relevant to the collateral consequences of failure to pay LFOs,29×29. See Thomas v. Haslam, 303 F. Supp. 3d 585, 607–12 (M.D. Tenn. 2018). But see Fowler v. Benson, 924 F.3d 247, 260–63 (6th Cir. 2019). including driver’s licenses suspensions and disenfranchisement,30×30. See Martin et al., supra note 16, at 475. as well as to the constitutionality of criminal justice “user fees.”31×31. See, e.g., Alexander v. Johnson, 742 F.2d 117, 124–25 (4th Cir. 1984) (evaluating the constitutionality of a “user fee” for court-appointed counsel); People v. Jackson, 769 N.W.2d 630, 639 (Mich. 2009) (same).
Fuller v. Oregon, 417 U.S. 40 (1974), is the leading Supreme Court case on the constitutional limits on criminal justice user fees. See id. at 47–54. Although that case predated Bearden (and did not rely on pre-Bearden equal justice cases, like Griffin), subsequent decisions interpreting Fuller, such as the Fourth Circuit’s Alexander v. Johnson, 742 F.2d 117, decision, have recognized Bearden’s relevance to the constitutionality of criminal justice user fees. See id. at 124. These “user fees” are the increasingly common practice of charging criminal defendants for the costs of their prosecutions, including those incurred for the exercise of Sixth Amendment trial rights, like the right to counsel.32×32. See King, supra note 16, at 566–68; see also Sobol, supra note 27, at 492 (“Fees have expanded to include a wide variety of charges purportedly to reimburse the costs of state and local entities. The fees even cover constitutionally required services such as public defenders.” (footnotes omitted)); Shapiro, supra note 26 (“A state-by-state survey conducted by NPR found that defendants are charged for many government services that were once free, including those that are constitutionally required.”). Paradoxically, this “‘offender-funded’ system”33×33. Sobol, supra note 27, at 492. attempts to recoup the expenses of our distended criminal justice system from a population that is already disproportionately poor, vulnerable, and marginalized.34×34. See Shapiro, supra note 26 (“The people most likely to face arrest and go through the courts are poor, says sociologist Alexes Harris . . . . ‘They tend to be people of color, African-Americans and Latinos . . . . They tend to be high school dropouts, they tend to be people with mental illness, with substance abuse. So these are already very poor and marginalized people in our society, and then we impose these fiscal penalties to them and expect that they make regular payments, when in fact the vast majority are unable to do so.’”). Research shows that LFOs interact with the preexisting economic vulnerability faced by many with criminal convictions to further exacerbate their financial circumstances, “resulting in a lack of economic stability and mobility.”35×35. Ella Baker Ctr. for Human Rights et al., Who Pays?: The True Cost of Incarceration on Families 7 (2015), https://ellabakercenter.org/sites/default/files/downloads/who-pays.pdf [https://perma.cc/23X6-J87V] (discussing how the economic opportunities, stability, and mobility for people with convictions are diminished because of “copious fees, fines, and debt”). And of course, LFOs and offender funding implicate issues of not only constitutional criminal procedure, but also racial justice: “Taken together, the vast racial disparities in wealth[,] combined with the significant racial disparities throughout the criminal justice system and the monetary sanctions that accrue at each step of case processing[,] create enormous potential for these sanctions to worsen racial disparities.”36×36. Martin et al., supra note 16, at 474; see Sobol, supra note 27, at 492 (“As may be expected, the impact on the poor and minorities is especially severe.”).
Accurate application of the Bearden line is thus essential to ensuring that these pervasive offender-funding and LFO practices do not run afoul of the Constitution’s guarantee of “equal justice,” regardless of wealth. Professor Laurence Tribe has developed a helpful “double helix” metaphor for conceptualizing the relationship between the Equal Protection and Due Process Clauses of the Fourteenth Amendment, which he has used to elucidate the doctrine of equal dignity that animates landmark fundamental rights cases like Lawrence v. Texas37×37. 539 U.S. 558 (2003). and Obergefell v. Hodges.38×38. 135 S. Ct. 2584 (2015); see Tribe, supra note 6, at 17; Laurence H. Tribe, Essay, Lawrence v. Texas: The “Fundamental Right” that Dare Not Speak Its Name, 117 Harv. L. Rev. 1893, 1898 (2004) (outlining a “narrative in which due process and equal protection, far from having separate missions and entailing different inquiries, are profoundly interlocked in a legal double helix”). To that end, this Essay aims to clarify the application of the sometimes-enigmatic doctrine by isolating — without permanently unzipping — the due process strand from its mutually reinforcing equal protection counterpart in the “double helix” of equal dignity. Although prior scholarship has not paid much attention to the individual contributions of each clause to the “blended” doctrine,39×39. But see, e.g., Anderson, supra note 6, at 361–67; see also Colgan, supra note 6, at 100–04. the Supreme Court has given some sparse indication as to the discrete role of each strand: “The equal protection concern relates to the legitimacy of fencing out would-be appellants based solely on their inability to pay core costs. The due process concern homes in on the essential fairness of the state-ordered proceedings anterior to adverse state action.”40×40. M.L.B. v. S.L.J., 519 U.S. 102, 120 (1996) (citation omitted) (first citing Griffin v. Illinois, 351 U.S. 12, 23 (1956) (Frankfurter, J., concurring in the judgment); and then citing Ross v. Moffitt, 417 U.S. 600, 609 (1974)). This Essay will draw upon “equal justice” and procedural due process precedents to develop a unified, descriptive theory of the procedural aspect of equal justice.
But the goal is more than simplifying an often-inscrutable doctrine: a focus on the procedural aspect of equal justice may be strategically useful in ensuring adequate protections for indigents in the justice system through constitutional litigation. As an entry point and an illustrative example, the Essay focuses upon constitutional challenges to a little-studied, but profoundly important, species of “user fees”: those imposed by many states on criminal defendants who exercise their Sixth Amendment jury trial right.41×41. See King, supra note 16, at 578; T. Ward Frampton, Comment, The Uneven Bulwark: How (and Why) Criminal Jury Trial Rates Vary by State, 100 Calif. L. Rev. 183, 208 (2012) (“In many states . . . criminal defendants who seek to exercise their fundamental right to a jury trial have been forced to shoulder part of that burden.”). In addition to further clarifying the constitutional mechanics of the Bearden doctrine, this Essay seeks to supplement the literature on jury fees, specifically, and to cast new light on how the Constitution constrains offender funding of the criminal justice system generally.
The Essay’s central thesis is that the Constitution imposes certain procedural constraints on states’ authority to charge criminal justice LFOs that burden fundamental rights — be they jury fees, counsel costs, or simple fines — and that Bearden best articulates the doctrinal test for determining what is constitutionally required. Given the paramount importance of the jury trial right and the minimal governmental interest in attempting to recover user fees from indigent defendants, the Constitution requires, at the very least, consideration of ability to pay and the opportunity for judicial waiver of user-fee debt before governments can impose such fees on defendants.
The full text of this Essay may be found by clicking on the PDF link below.
*Associate, Kaplan Hecker & Fink LLP; J.D. 2016, Harvard Law School. The author expresses gratitude to his former colleagues at the NAACP Legal Defense and Educational Fund, Inc., for their support and helpful input, with particular thanks to Sam Spital, Kerrel Murray, and John Cusick. The author also sincerely thanks the editors of the Harvard Law Review for their editorial assistance and diligent efforts in greatly improving this piece.