Split Vote: Contra Costa Board of Supervisors Halt Criminal Justice Fees

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On Tuesday, the Contra Costa County Board of Supervisors received a report and agreed to place an indefinite moratorium on the collection of certain criminal justice fees.

In a 3-2 vote with Supervisors John Gioia, Diane Burgis and Federal Glover supporting, with Candace Andersen and Karen Mitchoff dissenting, the county could lose $1.8 million in revenue through the fiscal year.

During the 2-hour discussion, the Board of Supervisors had a testy discussion while hearing from the public. Supervisors Andersen and Mitchoff blasted the lack of information and data provided in the staff report.

Meanwhile, Supervisor Gioia had pushed the issue interrupting his fellow board members and members of the public throughout the discussion to push his views and agenda.

Note – this recap focuses on the Board of Supervisors Discussion and Comments and not the public comments

Gioia explained that they had been researching this issue since February in committee and did a proof of referral to public protection to look at the issue of criminal justice fees and whether or not having these fees were having a negative impact on public safety and decreasing recidivism.

“Some of the evidence has shown that having this fee imposes a substantial burden on individuals, primarily those of lower income individuals who are also, families of color,” said Gioia.

He further highlighted issues with the fees.

Photo provided by John Gioia Flickr page.

“For people with limited resources, these fees can have substantial long term and counterproductive impacts. People may be denied release from probation until all fees have been paid. Their paychecks may be garnished, or tax refunds intercepted for decades. They may, some may be subjected to harsh and unreasonable demands by for-profit debt collectors hired to compel payment and such fees may render them ineligible to clear their records as permitted by law,” said Gioia. “A growing body of research demonstrates that such fees and flicked high pain for low gain. They impose significant and disproportionate financial hardships on low income people and people of color and on their families while adding minimal revenue to county coffers.”

Gioia said this recommendation to waive fees came over several meetings and was not a repeal, but a moratorium.

Glover added that this was an issue where a lot of dialogue offered

Supervisor Karen Mitchoff questioned the $1.8 million as being money collected from the county and while she had concerns about some of the fees, some of the items cost money—such as a drug testing fee which would be a wash for the county.

Mitchoff highlighted how the cost of collection was not provided in the staff report. Staff replied that number had not yet been calculated.

Andersen stated there was not a lot of factual information in this staff report and they framed this affecting disadvantaged populations.

“I’m almost offended that we’re only talking about disadvantaged populations as if it’s people of color or poor people that are committing crimes,” said Andersen. “There are wealthy people committing crimes that are subject to these fees. There are a lot of people, majority populations committing crimes. So this is what I’m trying to get some statistics.”

Andersen wanted data and a breakdown on fees that someone would incur regardless of whether they were convicted of a crime.  Staff replied saying these fees were related to people convicted of a crime.

She then asked if they did a moratorium, would it impact other agency budgets and wondered why the courts (judges) were not included in this discussion—staff said they did not.

Burgis asked staff how many people were taking advantage of fee waivers. Staff said they didn’t have that data.

“So we have no idea how many have applied and the follow up is how many people are granted a fee waiver, we don’t have that data either,” said Andersen. “I would hope that through our database this would be readily available to say x number of criminal defendants applied for a fee waiver and from that x number were denied for these reasons leaving this amount of people who are left continuing to pay.”

Staff explained that the committee did not request staff to do a deep dive into that data but did not know if that data was not even available based on limitations on case management software.

Andersen then asked if they track the race of their criminal defendants of who is paying and who is not paying.

Gioia interjected saying there were studies available and who pays the fees.

“While, yes, the fee is for everybody, that those most impacted the most disproportionately impacted are people of color,” said Gioia.

Mitchoff chimed in waning specific Contra Costa County data.

Gioia said there was “good data” on this issue while each county does not collect data, but there is research that had been done.

Andersen replied she did want people to continue paying the fees.

“There are a lot of criminals, people who have been convicted of a crime who might live in a $2 million home, who may have committed a serious DUI and have seriously injured someone. They are required to do regular drug alcohol testing as part of their sentence. They have probation, they might be released on a supervised release program where they are paying the fee and that’s their payment as part of their ability to not be in jail. I want people to keep paying that fee. So what I’m trying to isolate is what is going wrong in the system. If someone is able to pay a fee, then they should pay a fee. I mean the best way to avoid paying a criminal fee is don’t commit a crime,” explained Andersen. “That said, if we’ve got this inequity, lets look at what that inequity is.”

She continued as Gioia again interrupted her saying she wanted to focus on those who had the ability to pay and this proposal would wipe them out.

As the discussion continued, Andersen questioned the lack of information.

“These are fees that are disproportionally imposed, communities of color, regressive, hurting the poorest, the most impoverishing undermining public safety, successful post-incarceration what, what are we basing that on for facts for our county? Again, because I have zero information showing me who is paying the fees and it’s going back to my concern that there are a lot of people committing crimes who have the ability to pay these fees,” said Andersen. “These aren’t fees where we’re saying this is for a museum excursion or to go to the library or to participate in a class. I mean these are fees to an essence, reimburse the county to reimburse the taxpayers for the cost of someone committing a crime into the cost in lieu of incarceration or a fee that’s associated with it. So I’m trying to understand what evidence do we have before us today. If you have any supplemental information that can you give us that breakdown of these people have a full ability to pay. There is no reason we should not be imposing those fees. You know, on a next door neighbor of mine who may own a home, may drive, they have three different cars chooses to drive drunk and he injures someone. And so, instead of incarceration, he’s going to be put on probation and he’s going to have drug tests and alcohol monitoring in his car before he gets in. The person that embezzles money. How do we up here try to assess these people? You know, we do have a potential population who can really pay. Others can’t.”

She continued by asking if the staff did a deep dive into any flaws like they did when they looked at the juvenile justice fees such as forms because she had none of that in front of her.

Gioia responded by saying they will hear from people in the courts about that and compared Andersen’s argument to that of the voting rights act which was overturned because 95% of the people impacted by the practice were impacted. He says we will hear the data.

Mitchoff cut him off saying they didn’t have the data and it should be in the report.

Goia said the data that is out there is of counties that are representative of Contra Costa.

Anderson shot back saying she disagreed that there was any analogy with the Voter Right Act.

“My point is, John, there are people who are being convicted of crimes in this county subject to these fees. Who should keep paying these fees. There are disadvantaged individuals as is in this community. We have a fee waiver provision in place and I’m trying to figure out why is that not working? Why can’t we fix that? Rather than just throwing the whole baby out with the bath water saying no fees for all, everything, then no one has to pay a fee when in fact we have zero statistics in front of me as to who are the people who are subject to these fines? How many have the ability to pay, how many are applying for a waiver and they’re not getting that waiver and there is zero information,” said Anderson.

Gioia replied the point of a hearing is to have the staff report and testimony from the public.

“Some of these questions you have, they get answered by speakers and at the end we can continue to have more discussion. The process is we can’t make a decision until we hear from our report, the staff and the public who’s adding info evidence into the record about this issue,” said Gioia.

Andersen highlighted that the one key group missing from the conversation is the judges while Mitchoff highlighted how the staff report was “woefully inadequate on information” and how they shouldn’t just be getting public information.

They continued to discuss the lack of data presented while Gioia referred them back to other reports such as the Racial Justice Task Force which Andersen disputed.

“I’m not questioning that there is a population that is being impacted by these fees and I can have everyone in the audience come up and say, this was my experience. What I don’t have is of this $1.7 to 1.8 million, how much of it is from people who tried to get a waiver but were unsuccessful? How many of this, what of this amount of individuals who have the ability to pay, who have committed a crime,” explained Andersen. “We’ve got a big number, it will create a gap in a budget. I just really want to understand then that number who is in that.”

Gioia replied that they were never going to get exact data.

Later, Gioia accused Andersen of holding up the whole system for maybe 5% who would be impacted which is a small amount. Anderson replied she didn’t know if its 5% because she doesn’t have the data and wanted to know where he was pulling that number from.

Andersen later suggested they didn’t have the numbers in front of them.

“Now here’s my frustration with that comment over and over and over again. What, whether that statistic is 70% 80% 65% we know it is the overwhelming vast majority, so to say, to say we need evidence of whether it’s 40% or 60% or 90% before we make a decision that this is the reason where we recommended the moratorium,” said Gioia. “We did the idea of stopping the harm to the people who are being, um, unfairly assessed and, and most likely illegally assessed because we don’t know whether five, 10, 15 or 20% of the folks have the ability to pay. I think your point is exactly on point. Perfection shouldn’t be the enemy of the good. When we look at public policy, we look at what’s the overall balance in the public interest and there’s never going to be perfection”

“You’re right, there are some people, so that is why what the recommendation was is let’s stand back for a second, have a moratorium that prevents this harm from continuing to the overwhelming majority of people in the system. And yes, it may mean that some people who have an ability to pay our also been in covered by this, but that the overwhelming majority of people in the system who the harm is being done to that, those, that’s what we’re protecting here. And that that’s what’s in the greater public interest as opposed to saying, well, we want to know exactly, there is no dispute that it’s a majority of folks,” explained Gioia.

Mitchoff disputed that saying they would like to know the numbers to figure out if they could still make those who can afford it pay.

Andersen again requested they receive clear data.

“We are all of us up here are agreeing that there’s a disadvantaged population and we have a system in place that’s supposed to be helping those people. And it may not be, we’re trying to get more information,” said Andersen.

Gioia referred to how California data is similar to Contra Costa County.

Andersen disagreed calling it different.

“It is different and I’m very disturbed that you have not brought in the judiciary into this discussion,” said Andersen. “It’s something that’s very critical and we had judges say to us six weeks ago or however long it goes that we know with them saying we regularly do apply this and we have no information before us.”

Glover called this a great discussion and before it even occurred they could acknowledge who was impacted

“We’ve had heard the data over and over again in terms of the disparities and what has happened now through the years and who is the population that is in the criminal justice system. So it’s no question about where that is,” said Glover.

Glover also said he agreed that they need to be data driven, but said they had enough data and supported the moratorium. Going forward, he wanted to make sure the data is in place. He also agreed the judges should have a place in the conversation and have a seat at the table.

“But for me, I think the moratorium that we are looking at needs to be time sensitive,” said Glover. “I want to move forward with the moratorium today.”

Gioia added, “its undisputed that the overwhelming majority of people in our criminal justice system are low income and are people of color. We can argue over what percent of the total number have the ability to pay or who says otherwise about the percent, that is fake news.”

Andersen questioned Gioia.

“So why isn’t the data brought in because that is easily maintainable data,” said Andersen. “It should be in the report and I find it frustrating John.”

Gioia then cut her off saying they never have perfection in their policy and to say they needed exact numbers before they stop an action, the harm is on a majority of the people in the system and it was not in the greater public interest.

“Don’t let perfection be the enemy of the good,” said Gioia.

Andersen replied her concern was not with the number of people but rather when looking at the $1.3 to $1.8 million, who was paying that fee.

“If someone is not able to pay the fee, I want to understand why they’re not getting that waiver. And are they in fact in the fee or is the $1.3 to $8 million coming from those who do have the ability to pay the fee,” said Andersen who said they don’t have enough information before them on who is paying the fee and waivers they are currently providing.

She added that by not providing the judges in the discussion, they have had some vague allegations about judges not listening.  She further highlighted that when it came to fees, someone is going to have to pay it whether it was the individual or the taxpayers.

“What I’m not seeing today, any true evidence of how many people have applied for waiver, how many people have not been granted, we have a problem and I’m not seeing that these fees that we are collecting are not being collected by people who can pay. So it’s troubling to me to make a decision on very incomplete information,” said Andersen. “To me, it would be far better to postpone our decision, another 30-days and request staff come back and provide us with additional information.”

Mitchoff said no one disputed that low income people and people of color are more impacted by this system, there is a disagreement as to why that is.

“I can’t support the moratorium at this time and I know that there will be dissatisfaction with my reasoning, but there’s a reason these fees are in place,” said Mitchoff.  “We have yet to hear any information or input on how that whole is going to be filled.”

Mitchoff said at some point, there is not going to be any money to fund programs such as Laura’s Law, Stand Together Contra Costa, Contra Costa Cares and others.

“I’m weighing and having the real moral crisis of one group of people who are impacted by these fees versus another group of people who will also be impacted by the removal of these fees,” said Mitchoff.

She continued saying they should not have fees in place that are for people to do their job—calling it doing their job.

“We shouldn’t have a drug diversion fee. I have no problem assessing a fee for drug testing because that’s expensive and that should be happening,” said Mitchoff who continued by saying she wanted to know the ability to pay versus the non-ability to pay saying there are a number of white collar crimes going on and wealthy people are committing crimes and their able to pay their way out of it.

Goia stated he appreciated Mitchoffs comments, but for him this was about the harm done to those unable to pay which is the majority of folks is greater than the harm to require those who have inability to pay than not to pay.

Mitchoff shot back saying, “That isn’t the majority of my argument. The argument is the harm to those who can’t pay versus the harm to the regular Contra Costa County resident who needs county services.”

Gioia suggested that in their half a billion dollar budget, they could have a discussion over how to close that gap of this $1.5 million dollars.

Mitchoff replied they had that discussion over the ICE Contract and the Juvenile Justice System.

“At some point we need the fiscal data back in order to understand and justify this decision to those in our county who are not having to deal with this but are having to deal with other issues,” said Mitchoff.

Gioia countered by saying what they are trying to achieve is better public safety.

“A lot of the studies show that individuals after incarceration, who are successful, in career and education and things like that, have a lower rate of recidivism and therefore make our communities safer,” said Gioia. “By having this moratorium to stop the harm on low income individuals who are trying to put their lives together, I think we make our communities safer.”

He continued by adding it was not a large number of white collar criminals who had the money to no longer pay this fee, but they are reducing the harm done from people who had an inability to pay.

Mitchoff stated she wanted the data to prove that.

“I’d like the data and it may not be readily available, but through AB 109, we should have data on how successful people are who are unburdened by fees are able to reenter because we don’t know that,” said Mitchoff. “Yes, it will reduce a hardship to a individual or family. But does that necessarily equate to better outcomes in the criminal justice system?”

Gioia countered that the county has over 200 fees with around 20 judges each applying different interpretations of applying the ability to pay.

“What we’ve heard, I think that’s clear is that that practice has been inconsistent and all the studies that are, that are out there confirm that the application of the ability to pay has been inconsistent across counties,” explained Gioia.  “We are no different than other counties in state.  The best way to stop that is to put a moratorium and figure this out rather than continuing the harm to the same individuals while we take who knows how many months or years to figure this out.”

Burgis highlighted the reason they were here talking about this was they were dealing with the fees for post-conviction where people were found guilty and have paid the consequences and trying to move on.

“I think it’s our responsibility to support people to make sure that they can pay their debt and not come out worse in the whole process,” said Burgis. “I know we’ve had a really good debate, I think here that is applicable across the state. And I encourage everybody that’s standing up for this to stand up for on the state level because this is the exact same thing that’s going to be happening in Sacramento.”

She continued saying the consequences were severe for someone who has a very low income.

“Some people, when they hear of someone being convicted and they talk about the fees there is just across the board, they’re guilty. They need to pay the fees,” stated Burgis.  “They don’t necessarily understand kind of the nuances that we’ve been listening to and they don’t really, maybe even I’m starting to understand even more the impacts that those fees can have.”

She further highlighted their goal should be that people coming out of this interaction and paid the consequences after being convicted, should be able to contribute. She also noted the impacted on not just the individual who committed the crime, but the spouse, the parents, the children.

“It’s the person that can’t get a house or a home or a job or can’t get healthcare. All of those things because those fees are getting into the budget of being able to do that,” said Burgis. “Poor people are impacted bar than the middle-class versus the rich. It’s, it’s, it makes sense.”

Burgis suggested they move forward with the moratorium but wanted staff to come back with the data while borrowing the model from San Francisco. She also wanted staff to include the demographics and who is represented—she asked her colleagues to craft a request of data they wanted.

“When people ask me, why are you doing this? I’m doing this because I don’t want to punish poor people,” said Burgis. “I’m doing this because I think it’s fiscally responsible because if we can help people be more financially stable, we don’t have to provide those services.”

Glover made the motion to move forward with the recommendation and go back to gather data based on requested today while including the judges in the discussion. Gioia seconded the motion.

The moratorium went into effect on September 17 and stops the collection.

Andersen asked if this was a 90-day moratorium.

Gioia responded by saying it was a moratorium until the Board of Supervisors changes it. They will receive a follow up report by the end of the year.

Andersen again requested staff come back with answers to her questions in the form of data saying people who have the ability to pay should continue to pay.

“So we’re waiving these fees on the principle that this is going to help someone turn their lives around and they’re going to be able to get a job and they’re going to be able to you know, support their family. Recidivism falls into this whole equation as well,” explained Andersen. “If you waive fees, is there documentation out there that if you waive fees, are you going to see a decline in recidivism? And that’s something that’s important because if someone’s going to keep coming up over and over and over again committing another crime and saying, that’s not my fault, you know, it’s these fees. I’ve got to just keep committing crimes that then that’s a whole different discussion.”

Mitchoff agreed saying she wanted to see more data and an answer on the fee collection process.

Glover says he also wanted to see data on AB109 and recidivism as the data should be available as its been out for a while now.

Gioia pushed his board they will be working in committee to gather and collect the data.

The board then voted 3-2 with Gioia, Burgis and Glover supporting and Andersen and Mitchoff dissenting.

According to the staff report, here is a look at the types of fees that would be waived:

  •  10% Fee – California Penal Code § 1203.1 provides counties the ability to charge an administrative fee of up to ten percent (10%) of the amount of restitution ordered to be paid through the court. In 1994, Contra Costa County Board of Supervisors approved a resolution establishing a fee up to 10% of the amount of restitution ordered.  
     
  • California Fingerprint ID Penalty – In 1988, the Board of Supervisors approved Resolution No. 88/565 pursuant to California Government Code § 76102 to establish a County Automated Fingerprint Identification Fund in Contra Costa County and to charge a fifty cent ($0.50) assessment for each $10 fine, penalty, or forfeiture imposed and collected by the courts for all criminal offense and certain violations of the Vehicle Code. The purpose of this fee was to assist the County in the establishment and maintenance of adequate fingerprint facilities and suspect booking identification facilities.  
      
  • Booking Fee – Contra Costa County is currently authorized by Ordinance No. 2011-13 and California Government Code § 29550 to recover any criminal justice administration fee (“Booking Fee”) imposed by the County from the arrested person if the person is convicted of any criminal offense related to the arrest.  
      
  • Drug Diversion Fee – In 1994, the Board of Supervisors approved a resolution pursuant to California Penal Code § 1211 to charge a fee for the administrative costs incurred in processing a drug diversion case.  
      
  • Alcohol Test & C.A.P Fee – Contra Costa County is currently authorized by Resolution No. 88/28 and California Penal Code § 1463.14 and § 1463.16 to charge two separate $50 assessments on defendants convicted of violating California Vehicle Code § 23152 or § 23153 (driving a motor vehicle under the influence of alcohol or drugs). Alcohol Test Fee revenue and fifty percent (50%) of C.A.P. fee revenue is used to offset the cost of laboratory testing performed by the Office of the Sheriff.  
      
  • Probation Drug Diversion Fee – In 1995, the Contra Costa County Board of Supervisors authorized an administrative fee for the Probation Department’s processing of clients into a drug diversion program pursuant to Penal Code § 1001.15.  
      
  • Probation Supervision Fee – The Probation Department is currently authorized by Resolution No. 2010/262 and Penal Code § 1203.1b to charge a Probation Supervision Fee to recover the cost of probation supervision.  
      
  • Probation Drug Test Fee – The Probation Department is currently authorized by Penal Code § 1203.1ab to charge a Probation Drug Test Fee to recover the cost of drug testing required as a condition of one’s probation.  
      
  • Probation Report Fee – The Probation Department is currently authorized by Ordinance 2009-28 and Penal Code § 1203.1b and § 1203.7 to charge a Probation Report Fee to recover the cost to conduct a preplea investigation of a criminal defendant and prepare a preplea report.  
      
  • Alcohol and Drug Assessment Fee – Contra Costa County is currently authorized by Resolution 99/347 and Penal Code § 1463.13 to charge an Alcohol and Drug Assessment Fee to recover the cost of providing community substance abuse services for those convicted of driving under the influence. The revenue generated from this fee funds community substance abuse services.  
      
  • Public Defender Fees – Contra Costa County is currently authorized by Penal Code § 987.81 to recover the cost of court appointed counsel. The revenue generated from this fee are used to offset the County’s cost for court appointed counsel. The Contra Costa Public Defender does not assess, process, or collect this fee.  
      
  • Custody Alternative Facility Fees – the Contra Costa County Office of the Sheriff is currently authorized by Resolution 2008/303 and Penal Code § 4024.2 and § 1203.016 to charge fees to participate in the Custody Alternative Program to recover the cost of administering the program.

Full Staff Report: Click here

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