Introduction: Barriers to Litigation Access
I
n Griffin v. Illinois,1 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 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 — inaugurated “the fundamental rights strand of equal protection,” which protects “against governmental action producing disparate wealth effects with regard to certain ‘fundamental’ interests.”4 Beginning with this prototypical case,5 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
A. The Modern Standard
If Griffin represents the “foundation case,”7 then Bearden v. Georgia8 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 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 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 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 Applying this test, the Court concluded that the state’s “penological interests”13 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
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 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 — and the surging community activism17 and civil rights litigation18 challenging LFO practices, from Ferguson, Missouri,19 to Washington State.20
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: 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 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 but also to the overt racial bias with which such practices are implemented.24 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 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 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
Furthermore, because the Bearden line applies beyond cases in which imprisonment is at stake,28 the “equal justice” doctrine should be relevant to the collateral consequences of failure to pay LFOs,29 including driver’s licenses suspensions and disenfranchisement,30 as well as to the constitutionality of criminal justice “user fees.”31 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 Paradoxically, this “‘offender-funded’ system”33 attempts to recoup the expenses of our distended criminal justice system from a population that is already disproportionately poor, vulnerable, and marginalized.34 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 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
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 and Obergefell v. Hodges.38 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 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 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 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.
*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.