Before his recent resignation, U.S. Attorney General Jeff Sessions spent the better part of two years trying to turn back the clock on criminal justice reform. Among his other regressive actions, last year Sessions rescinded 25 guidance documents issued by his predecessors in the Department of Justice, or DOJ, including two that dealt explicitly with Obama-era initiatives to reduce the harmful impact of fines and fees in the criminal legal system.
The documents did not themselves have the force of law, but they advised state courts about their constitutional and statutory obligations when imposing financial costs on youth and adults in the criminal system. In particular, the DOJ issued an advisory to caution local jurisdictions against fee practices that discriminate against or otherwise violate the rights of youth and their families in the juvenile system.
A report by the Juvenile Law Center found that most states charge one or more fees to system-involved youth and their families. But the federal government has a fairly limited role when it comes to juvenile justice. Beyond the bully pulpit, the DOJ controls some funding and related enforcement mechanisms, but almost all youth experience the legal system at the local level, subject to state and county laws, policies and practices.
Fortunately, state-level criminal justice reform is moving ahead, and UC Berkeley students have been at the forefront of some major victories. For example, several months after Sessions rescinded the guidance documents, Gov. Jerry Brown signed SB 190, which repealed county authority to charge parents and guardians for their children’s detention, probation supervision, electronic monitoring, drug testing and public defenders.
Informed by on-the-ground lawyers and law students at Berkeley’s East Bay Community Law Center and supported by youth justice advocates, policy nonprofits and juvenile judges around the state, California state Sens. Holly Mitchell and Ricardo Lara introduced SB 190 to “eliminate a source of financial harm to some of the state’s most vulnerable families, support the reentry of youth back into their homes and communities, and reduce the likelihood that youth will recidivate.”
Under state law, juvenile fees were supposed to help protect the fiscal integrity of counties. According to groundbreaking research conducted by the UC Berkeley School of Law and students from the Public Policy Clinic, the fees harmed youth and families, were often collected unlawfully and generated little net revenue for counties. Because youth of color are disproportionately arrested, detained and punished in the juvenile system, the fees were especially burdensome for families of color.
SB 190 went into effect Jan. 1, 2018, and clinic students have advocated for and monitored the bill’s implementation. We are happy to report that all counties have complied with the law and stopped assessing new juvenile fees. In response to students’ ongoing efforts with local partners, 34 of California’s 58 counties have also voluntarily chosen to end the collection of old fees, relieving hundreds of thousands of families of more than $235 million. Contra Costa County has even refunded tens of thousands of dollars to hundreds of families from which it collected fees unlawfully.
But there is still work to be done. Twenty-four counties continue to pursue more than $142 million in previously assessed fees. Some of these counties engage in aggressive collection practices and refer unpaid fees to the state Franchise Tax Board, which intercepts families’ tax refunds, garnishes their wages and levies their bank accounts. Our students will continue to work with advocates to try to undo these remaining harmful practices, but the state Legislature might have to step in again to wipe the slate clean for families across California.
Importantly, collateral benefits of SB 190 are also being realized. Little-publicized provisions in the bill ended county authority to charge certain probation fees to 18- to 21-year-olds in adult court. Our students have been working hard to ensure that counties comply with these important protections for young people in the adult system. And advocates throughout the state have begun working to extend these gains. Earlier this month, a large coalition of groups — facilitated by the East Bay Community Law Center and the American Civil Liberties Union of Southern California — launched Debt Free Justice California, a statewide campaign to replicate SB 190 and end fees in the adult system.
What seemed unimaginable just a few years ago is now becoming a reality, and not just in California. Local officials and judges in places as diverse as Philadelphia, New Orleans and Madison, Wisconsin, have ended juvenile fees, and more local and state jurisdictions are considering similar reforms.
The attorney general can rescind guidance documents on criminal justice reform, but he cannot undo the ideas and momentum they have helped to spur. We now have proof of concept that fee abolition and discharge are possible. In collaboration with national, state and local partners, we hope to reach a tipping point in the next few years where jurisdictions that charge juvenile fees become the exception and not the norm.
Stephanie Campos-Bui is the clinical supervising attorney and Jeffrey Selbin is the faculty director of the Policy Advocacy Clinic at the UC Berkeley School of Law.