New guidance from the US Department of Justice largely mirrors Delaware’s recent court-imposed debt reforms, though it pushes for further consideration of a defendant’s ability to pay a court fine.
At the end of April, the DOJ issued a letter to every state court administrator and state Chief Justice encouraging a national reevaluation of court-imposed fines and fees, which serve as a revenue stream for courts, a part of a defendant’s punishment, and – in some cases – a source of victim compensation.
The letter points to new case law, including recent state Supreme Court rulings in Indiana and Washington state, establishing that courts are constitutionally required to consider defendants’ ability to pay before imposing fines.
National Fines and Fees Justice Center Director Lisa Foster — formerly the director of the DOJ's Office of Access to Justice — told a group of Delaware policymakers tasked with planning court-imposed debt reforms that DOJ also advised state courts to make assumptions about a defendant’s ability to pay based on basic indicators, including whether they are homeless or already incarcerated.
“If someone’s getting public benefits, if they’re a Medicaid recipient, they’re getting SSI or food stamps, someone has already determined that they’re poor," she said. "The court can rely on those determinations and assume that persons getting those benefits are indigent.”
Delaware courts aren’t currently required to consider ability to pay when imposing fines, and language giving judges discretion to waive or modify fines was dropped from a court-imposed debt reform bill before its passage in 2022.
But some Delaware municipalities have already adopted local ordinances presuming recent reforms gave judges discretion to waive or reduce fines; Milford's city council, for instance, cited their presumption that judges could waive fines for indigent defendants when adopting an ordinance earlier this spring establishing penalties for loitering near lighted intersections — a proposal intended to address panhandling complaints.
Meanwhile, Delaware policymakers considering further reforms are discussing whether nonpayment of fines and fees should remain a bar to seeking expungement.
Foster says state lawmakers or civil liberties groups could make a constitutional case to lower the barrier to expungement.
“Conditioning that on one’s economic status – on poverty – is at odds with the underlying purpose of expungement, if not unconstitutional," she said.
The DOJ's letter, however, is silent on the issue.
