we had been very focused on urban poverty, but then we realized there is a criminal justice component to this end a serious criminal justice component and that led to the recognition that the criminal justice system was greatly exacerbating poverty problems we're focused on. it also led us to recognize the enormous dysfunction of our criminal justice system, which is excessive as you will know in many respects. the numbers of people incarcerated about six times the average of the developed countries, the sentences that are too long, parole and probation that is too rigid, and very importantly, the inadequate preparation we give to people in prison for life after prison and then the support we give after they've been released. one of the things that struck me at the first hamilton project forum was that people come this was 2008, mind you, people that come from all over the country, practitioners, analysts, public officials. when asked him why they had come, they said this is the first opportunity they have had to discuss the subjects with a d.c. platform. of course that is changed, there's tremendous focus in washington but at that time there wasn't. it was a early in the process. also people said to me, this is the first time they've been involved in a focus on these issues that with some economic lens which was very much the focus of the hamilton project. we've had several meetings on this topic since. there has certainly been a lot of progress on the one hand, but a vast amount remains to be done. in 2016, i went to to san quentin. i had been invited to give a talk, and the experience crystallized for me a comment that one of the people in prison made to me, registered and listed with me ever since, which is none of us, none of them but also none of us, should be judged by the worst thing we've ever done. two with the people thought i'd met at san quentin and i stayed in touch. they are on parole and i stayed in touch with, was with, lunch with one of them two or three weeks ago and he was telling me how inadequate the preparation have been both while he was in prison and how inadequate support now for reentering the mainstream society and mainstream economy. although he himself was actually doing quite well, extraordinary impressive individual. the context of criminal justice reform we will focus on today, as i mentioned a moment ago, is bail, fines, and fees including fees of restitution. as all of us know, all of you know, there are enormous inequities in our criminal justice system. and with respect to focus or focusing on bail for the moment, if you're accused and you can afford to post bail, you don't go to jail. if you're accused and you don't have the financial resources to provide bail, you do go to jail. at any given day, it's been estimated that are half a million people in jail because of their inability to provide bail. going to jail is not only itself obviously a difficult experience, but it has in the consequence. some number of those who go to jail plead guilty even though they are innocent because they get time served or probation, and the problem there is a have -- they have a criminal record and that been adversely affects them as they seek employment subsequent to that experience. the costs to them are enormous but the cost to our society and our economy are also very great. we are also going to focus on fines and fees including restitution. these fees and the debt that is incurred follow people from the time they leave prison for the rest of their lives until they can afford to pay them and very often for these people, paying off those fees -- the debt incurred in the criminal justice system is very difficult. it limits job prospects and it undermines their effort to get back into our society. two people i had lunch -- not lunch, lunch with one and met with the other. two people i met and going out on parole from san quentin have respectively 8000, $20,000 of debt. for those people in that situation that's a lot of money. it's been estimated the cumulative debt incurred to the criminal justice system is somewhere around $124 billion as of the fiscal year 2017. another topic topic we are looking at today is the use of fees and fines created by the criminal justice system as a budgetary measure which then distorts the conduct of the criminal justice process. to discuss all of this, we are deeply appreciative of having with this highly experienced, deeply knowledgeable participants and panels and authors of our papers. in keeping with the practices of hamilton project i will not introduce them at this point. they will be addressed by our moderators, but i'll just say they are a remarkable group of people where very fortunate to have them with us. our first panel will be moderated by ryan nunn, the policy director of the hamilton project and an economics studies fellow at the brookings institute. he will be discussing policy options to reform the use of fees, fines, and forfeitures. and then we'll have the case for eliminating cash bail moderated by maya wiley, a legal analyst for msnbc and nbc news. and henry cohen, professor of urban policy and management and senior vice president of social justice at the new school. that's a lot of titles for one person, but we're glad to have her. let me say before i conclude that we are very fortunate of the hamilton project to have terrific leadership. i mentioned brian already who is deeply thoughtful and knowledgeable, widely respected, outstanding director of the hamilton project, j shamble, and effective managing director kristen mcintosh. we have remarkable staff without whose work we cannot accomplish any of what we do. forumhat, i will turn the over to the first panel. thank you all. ryan: good morning. i'm ryan nunn, i'm the policy director for the hamilton project and i'll be your moderator for this panel, reviews the fines of fines if -- and forfeiture. i'm excited to talk to the panel about all these issues pick you can see their bio, full bios in the agenda but david a quick -- but i'll give a quick title for each of them. directly to my left, kristen clarke is president and its extract of the lawyers' committee for civil rights under law. next we have jeremy travis as executive vice president of criminal justice at arnold ventures. next we have danielle allen who is james bryant conant university professor and director of the edmund soffer center for ethics at harvard university. next, the processor -- professor of law at ucla and author of one of the proposals will be discussing today. finally, we have michael makowsky who is associate professor of economics at clemson university and author of a second proposal that we will be discussing today. i'll just say a few quick words about the scope for this discussion on this panel. we are here to talk about fines, fees, and forfeiture in part because our criminal justice system is making more and more use of the overtime. where once wanted sanctions were really a matter of fines, specifically designed to deter crime and to punish it, now we see a much larger role for fees and forfeitures, as well. more than half the people in prison have incurred fees with small fractions subject to fines and restitution in addition. we see local jurisdictions raising a lot of revenue from these sanctions. the top 5% offset about half of the criminal justice expenditures with these revenues. those patterns and plenty of other interesting evidence you can find in the hamilton project's nine facts about monetary sanctions which if you haven't already grabbed you can get outside. and then so what we want to talk about is the set of reform options that this evidence-based prompts. i think that's driven by this growing research literature that documents that the cost of these sanctions on people with criminal records but also documents the extent to which a system is not always effective in achieving its own goals. researchers have learned how law-enforcement behavior can be distorted by the incentive to obtain criminal revenues through and we'll talk about what can be done to simultaneously achieve objectives like public safety while minimizing harm to people with criminal records. so with that we will get started in a moment. i want to remind you that we have q&a process that so -- a little different here. we will be passing around notecards of which you can write any question you have. those will be passed up to me and we will have a q and a period at the end. but first what i'd like to do is turn to one of our authors, to michael makowsky, just asking to -- describe the challenge that he's addressing in this proposal. you are focusing on the incentives in law enforcement. can you tell us about the problems that motivated you to write this? show less text -- write this? michael: let's set a little public finance context. for local governments, raising debt is hard, raising taxes is even harder. if they do manage to raise taxes, someone is probably going to lose an election or your tax base may just decide to live somewhere else. so facing those constraints what a lot of local governments have elected to do is transform their local law enforcement into an effectively regressive tax system. this strategy has spread across the country. it's becoming more and more common. i think for a lot of us, when we put the image in our head of revenue driven law enforcement, we think immediately of speed traps. we think of nuisances, parking tickets. but if you look at the growing body of literature, professor colgan is part of this, these are not nuisance fines and fees. these are often financial crippling. they are sizable enough people are being incarcerated for failure to remit payment. and furthermore, it's extended the island citations now. we're seeing correlation between criminal arrests that can lead to property seizure. so now, we're talking about a system that is both financially harmful but is applied this -- applying this criminal stigma to someone for the rest of their life. furthermore, it is part of the system we're seeing a lot of systematic bias. we are seeing a correlation between increases in arrest, we are almost exclusively seeing that for a minority arrestees and we see essentially no marginal correlation for white arrest rates. statistics can seem a little anodyne, and maybe that's sometimes why this can fly below the radar, but the report that the department of justice issued on the municipality of ferguson, missouri, in the wake of the tragedy presented such a stark image, just irrefutable evidence of a municipality where the criminal justice system had become systematically biased against low income african-americans as a fiscal strategy. when you combine that fiscal strategy with law enforcement creating this incredible amount of collateral damage, in pursuit from a public finance point of view which would seem like a relatively modest amount of revenue, it becomes a destructive enterprise. so what i'm proposing is essentially two strategies in pursuit of one goal, which is revenue neutral law enforcement. and it does that by two things. one, it's subtle, and that's the pooling of criminal justice revenues across all municipalities within the state, and remitting those back to the state to then be distributed on a population basis back. i know it might seem kind of odd to suggest having local agencies give money to the states only to have it sent right back without any change in the quantity, but that remittance dilutes the incentive from any one arrest. so in that moment of discretion that the officer has, that arrest isn't going to actually put any more money in his or her budget, in his or her overtime allotment. it is not going to keep their boss any happier. it's been diluted out and then it will come back. but we also know there's a lot of political games that can be played. politicians are very clever in terms of moving money around, which is why my second proposal is more ambitious. and that is the establishment of a public safety rebate with a direct revenue from arrest so the property seized would be pooled in the state and then rebated back at the end of the fiscal year to low-income constituents using the s.n.a.p. program rubric. it would be minimal overhead, but it's returning this money that has already served its purpose. it served its purpose as a deterrent, but now it's never going to actually enter a budget. so when members of the community receive this rebate every year, it's informing them what law enforcement is doing in their community, but it's also, it's establishing a commitment and making a promise that we are using these penalties because we don't want to fall back on incarceration. we want them to be a deterrent but once they serve this purpose were giving the back to you because we are here to serve and protect you. we are not here to take from you. ryan: thank you. i'd like to turn to you now and ask you to tell us more about the problems and you deal more on the monetary sanction sides. >> just to talk a little about the scope and type of sanctions we are talking about outside the forfeiture context. speaking, there are four general categories of economic sanctions widely used in the united states. statutory fine is one we think of the most often but there are administrative fees charged for things like if you have a jury trial, you potentially have a fee. you might have to pay for the cost of your pretrial and incarceration. you might have to pay for the cost of the public defender you only qualifier -- qualify for. these fees can stack up. we also have loosely called surcharges. additional items, fines on top of fines. fromare often targeted money so you might have a driving violation that results in a ticket and your surcharge might pay for the public parks or in arizona, the clean elections campaign fund. it may have nothing at all to do with law enforcement. as we were hearing about, this being used as an alternative tax mechanism, this is an obvious moment where that happens. we also have restitution which in theory is supposed to be paid to victims, though we haven't done a particularly good job of ensuring that happens which i am happy to talk about in u.n. day people are tasted. from adult felony court down to traffic court, notough restitution is likely that context, and also juvenile courts. if you don't have the ability to fake -- pay immediately, we keep tacking on more fees, collection cost, interest and the likes so that debt just continues to accrue. if you miss a payment or fail today, then we have what are called poverty penalties that can be tacked on top. this may be a get additional economic sanctions but it also might be an extension of your term of probation or parole. it might include incarceration in some places. in many jurisdictions involved an extension of your lost of right to vote. most of those things are argumen arguably unconstitutionl but they are widespread around the country. how many people are indisposition of not being able to pay? just rough evidence we have about the economy and we've heard a lot of this a target of -- is targeted at low income minority communities. just as a general matter, 2017 supplemental poverty measure that almost 14% of americans are living in poverty. as a result, a little more than a quarter of adults are not able to make, meet the monthly needs. -- their monthly needs. they are having to skip things like rent or food, basic necessities. if you look at minimum wage. states, minimum wage, even if adjusted for the earned income tax credit would leave the family of three below the federal poverty line, or just above the federal poverty line. as a result, there are simply not a lot of people that are in a position to make a payment if suddenly they have these economic sanctions added to the monthly bill. and if we add onto that that 9 million households in the united states are un-banked, they have no access to standard bank accounts, no savings to draw from, that means if you have to make payments they might be going to more expensive options like payday loans. this all has serious implications for people who are unable to pay, and what we know is people with criminal histories, people especially who are coming out of incarceration or reentering the community are likely to have very limited success finding employment. having a felony conviction can hamper that. there may be actual restrictions on employment and business licensing that can attach to certain convictions. they also might be triggered by an inability to pay. as a result we have people, particularly people in communes -- communities of color who are turning to spaces what are fewer jobs available in the first instance, are already having difficulty making payments work. so there's a number of things that an happy to in q&a around is this even meeting the goals of punishment and deter or not, there are -- is evidence it pushes people into crime. it has problems for legitimacy. there are a number of issues and problems that this creates. so my proposal, which i actually think, i should say is not a panacea to the large-scale problems were talking about. it doesn't fix policing, doesn't fix the racial injustices in the criminal justice system. it makes a small conservation to improving fairness in terms of the use of economic sanctions where we use them. that's to require an ability to pay calculation. and i'm happy to discuss later what the details of that might look like but as a rough overview, you really need to have the criteria to be objective both in terms of the person's income and expenses. one of the things we seem see places where there isn't objectives, information used to determine ability to pay is it can turn into things like what shoes you wore to court. so it doesn't really give us an idea of what people are able to pay. i'm happy to talk about the day fines model for this. this is used in latin america and europe. we look both at the ability to pay and the seriousness of the expense to come up with a penalty imposed. and it's important to understand that there are going to be some people who cannot pay anything. we have to be serious about non-incarcerative, non-economic responses to what currently handled as a criminal justice problems. ryan: i'd like to turn to danielle now and ask, monetary sanctions are not new in the u.s. criminal justice system. what have we learned from the history and particularly in terms of how sanctions matter matter for civil rights? danielle: it is a pleasure to be i the historian in the house today and give us a chance to think about the past. policy reformut on the table from our own deep history. the american revolution. it was indeed a policy response to exactly this kind of problem. let me just walk you through the history a bit to remind you because it connects to the issue of legitimacy that both the previous speakers raised. here is the text of a commission for customs commissioner appointed by the king in 1754 by king george. i hereby appoint you, the said george stewart, my commerce in the said province and territory in maryland, hereby granting unto you, the said george stewart, all fees, profits and advantages to the said office anyways belonging and a do hereby command all justices of the peace, mayors, shares, keepers of jails and of officers and ministers within the province to aid and assist you and to the contrary to their peril. this commission in other words, explicitly paid for the customs officer also by definition the folks assisting him through fines, fees, and asset seizures that would be collected as part of his job. this, the american colonists rejected mightily as you all know. basically, what happened was that was listed with funding a -- a standard way of funding a set of offices and then after the french indian war, the british government was debt and saw the colonies as a source of revenue extraction and converted their administrative justice from one that was about justice and securing the peace to being a concept of revenue generation. they passed a series of acts, navigation act, sugar act, trade act, so forth, increasing the number of officers and the response of the colonists again, their policy reactions was that the sons of liberty burn the gaspe in providence, rhode island in 1772. it was a custom officer's ship that it interrupted an american ship that was transporting rum. the rum had been sent to boston for sale as a customs prize. the sons of liberty burned the gaspe. policy quote number one. [laughter] danielle: in annapolis, another instance, a ship called the speedwell was secured by customs officers and all of its goods, not just the liquor goods, all the goods of the ship were put on auction at the maryland coffee haus. the proceeds would be split between the court and the judge personally, and that the response of the americans was to tar and feather the customs officer. we have a deep history of thinking about this problem and it's in the text of the declaration declaration of independence. the language of the declaration that complaints about the king sending a swarm of officers to eat out our substance visit, on exactly this treatment of administration of justice of the revenue generation source. course,th amendment, of protection against unreasonable searches and seizures is also exactly this issue, the seizures can component about that was really focus on the revenue generation problem. the american founders recognized that the legitimacy of a system of justice depends on that its purpose be justice and securing the peace. assad in various ways to try and establish that. over history, we have failed and failed even in 1780 since empty -- 1780's and 1790's. corrections are failing again now. i just want to conclude by reading a poem by the national poet laureate tracy smith, called "declaration." very short. i am reading it mainly to indicate that issues of legitimacy and that connection to the deep history of this country and why we built the rights in the first place has not been lost on communities of color who are experiencing this treatment. tracy smith, who is herself african-american, the poem is excerpted bitse of the declaration of independence. he has sent hither swarms of officers to harass our people. he has plundered our, ravaged our, destroyed the lives of our, taken away our, abolishing our most valuable, and altering fundamentally the forms of our in every stage of these oppressions, we have petitioned for redress in the most humble terms. our petitions have only been answered by repeated injury. we have reminded them of the circumstances of our emigration and settlement here. taken captive on the high seas to bear. that's all from the declaration of independence. it all pertains to the issues we are talking about today. ryan: thank you. that will be a little difficult to follow, but -- [laughter] danielle: i did my job. ryan: i was hoping you could talk about monetary sanctions as it relates to excess. i do think it follows nicely. >> first, thanks to the hamilton project for the invitation. honor to be on this panel, a special thank you to secretary rubin has been a voice of reform. i want to make three points. the first, just by way of introduction, is to thank professor makowsky for citing the ferguson report. in many ways we are here in memory of michael brown. that report occasioned by his death, i think really brought to national consciousness practice we're talking about here in its extreme version but not uncommon version. the big point i want to make is not back to the revolution but just remember where we are in a country in terms of the use of the criminal sanction that has been, that has morphed over the last 50 years into an instrument of repression. so we have, as the secretary sector mentioned at the outset, quadrupled the rate of incarceration in the united states and the number of people including my colleague bruce weston and i've written about this, national academy report documents how it happened. it was because of excessive use of the sanction that we've called the criminal law to accomplish not crime control because that's not what it was about, but in essence to reorder our society. increasing incarceration rates, increased supervision rates, which can increase pre-pretrial and you would talk but another manifestation of the same political era and that is -- a number of us are calling the error of security access and that is these of monetary sanctions as part of this regime of extended use of state power. this is a moment where my inner libertarian comes out. surprise to some of my friends for me to say that what we've done is we've weaponized state power the use of the criminal sanction in ways that are destructive, particularly destructive of our aspirations for racial justice. so that's the first point. we can't talk about this topic, much less bail reform in the next panel, without realizing we are in a unique moment of american history and it is time to reverse we've built everything over the past figures -- 50 years including this. the second point and want to make is the question of financial penalties, which i think there are actually, there four. is bail which the next group will talk about. there are fines, fees, and forfeiture. that use of the state power to extract money from people who are under state control in some way has to be seen also in the context of poverty. if you look at all of these phenomena from the position of a family that has to deal with financial realities that include not only these but let's read matt desmond's book, "eviction." there are the things going on in the lives of poor families where this is one more thing on top of a strained financial reality. there are economists who have looked at what i think is in some ways one of the most damaging consequences of this era of punitive excess which is the diminished ability particularly of african-american families to accumulate and transfer wealth between generations. that is not just these tend to oppress that ability to accumulate wealth but it's also, the trips to the prisons, it's also the collect calls. at some point you say what have we done in this country to those who are struggling the most? final point, i find it interesting and this is a real contribution to the papers, to look at what we are doing here with fines and fees and forfeitures and penalties and bail, in the context of reductions of tax revenue to localities and this notion which sounds so benign, of user fees. fees for all sorts of things. we pay extra to fly an airplane so this tsa employs can do the -- employee can do the work they do to make sure we are safe. fine with me. i'll pay more to make sure we are safe. user fees as applied to this -- the people who are under state supervision is, i think, obscene. so the question here is not repulsed by the first principles. why would we ever charge somebody for the privilege of being supervised? why would we -- supervised? why would we ever charge people for the appointment of counsel when you are indigent? so the user fee notion which comes from an interesting place and maybe it's part of a reduction, and the tax revenue we charge people to do certain things just seems in this context to be of singing. if we look at the criminal ne.obse if we look at the criminal justice system as a public good, that should be paid for by the public because the adjudication of wrongdoing and the appropriate response to the wrongdoing is a public value and enhances the respect for the rule of law because that's a public value, and then we create this machinery that puts people in and out of the system, charge this machinery that puts people -- them for the system can we've been something that seems that only unconstitutional but as as a matter of who we are as americans inconsistent with the core of american values. ryan: thank you. i'd like to turn out to kristin. michael argued revenue motivated policing isn't just bad for the people who are the targets of it but it also can undermine public safety. do you think that's right? how have you seen this play out? kristin: first, i want to thank the hamilton project for shining a spotlight on an issue that i think stands as one of the greatest threats to our democracy today, fines and fees and the resurgence of modern-day debtors prisons. i think, frankly, we talk about a lot but there isn't enough being done to promote reform and end this pernicious practice. i think that jeremy is exactly right, that it is in large part the legacy of michael brown, and what we've all learned about ferguson, missouri that helps to promote greater public dialogue around this crisis. in ferguson, missouri, this is the place where 20% of government revenue was generated off of fines and fees extracted off the backs of poor people, the majority of whom were black and brown, and simply lack the ability to pay. fees tied to offenses like walking, the matter of walking in the roadway, failure to comply citation. these are citations that were issued to about 95% of african-americans in ferguson. municipal violations for having an and mowed lawn, putting up trash in the wrong place at the wrong time were also issued overwhelmingly to black residents, and sadly we know that these practices are widespread and pervasive across the country. what is remarkable is that there is clear supreme court precedent that this is unconstitutional. can't lockhich you somebody up merely because of their inability to pay. but the problem is we don't have an enforcement mechanism to help breathe life into that supreme court ruling. one of the things that we do the -- at the lawyers' committee for civil rights under law is we try to hold some of the bad actors accountable. we have been doing a fair amount of this work in places in the deep south like arkansas, oklahoma, and louisiana where these practices are particularly deep-seeded. and just to kind of help, bring these issues to life, let me share just a word about a case we brought in sherwood arkansas. there, fines and fees on poor people is just a fact of life. this is a town that had set up a checkhick court -- hot court and made big business of prosecuting people providing small checks to local merchants. the court advertised their service service on the website, and one of our clients kind of really speaks to how problematic the practice is of this court were. one of our clients was a woman who five years prior to our filing of this suit, wrote a small check for about $29, and over the next five years of her life she paid more than $600 in fines and fees to this court. when we filed, she remained indebted by about $2600. she had no job. she had no source of income. she stayed home to take care of a bedridden mother. there was no way she could ever climb out of that hole. and on top of all that, she spent about 25 days in jail because of her inability to pay those fines and fees. white county, arkansas, we brought a suit here as well. one of our clients is a woman, both she and her husband were entangled in the court because of their inability to pay fines and fees tied to nonviolent low-level offenses. they lost their children because they were in jail and are still struggling to get access to the kids back. so these are practices that destroy lives and tear communities apart. we believe at the lawyers committee that litigation is a powerful tool for promoting reform. it helps to lay the groundwork that might help create the political will necessary to embrace some of these bold and ambitious reforms that we been -- have been hearing about this morning. so we continue to look to the power of the courts to help to hold some of the bad actors accountable, to send a strong message to other judges and courts out there that the practices are violating the constitution, and hopefully, hopefully if we send a strong message to enough courts and judges, we can help to institute some of these reforms that might bring about the systemic change that we ultimately need. >> thank you. back to the proposals. i'd like to come back to michael and ask, if you want to say a few more words about details of what you're proposing and some of the advantages it would have? >> i think the principal advantage of first proposal, which is the remittance of direct revenues back to the state to then be distributed per capita, is the simplicity of it, that there's not a lot of machinery and there's no explicit cutting of the revenues in a given fiscal year. so if we see an effect from that, if we see a decline in arrests, and the decline of citations, a decline in revenue from that, it is strictly going to be driven by that 5%, 10%, 18% of municipalities that are egregiously pursuing it as a fiscal strategy. so for the median local government, this will have no effect, and that's what we want. we want a policy that is simple to implement, that is going to -- any outcome effects will be driven by the most aggressive municipalities and the ones that really adopted the strategy. as for the more ambitious, the proposal to establish public safety rebate -- i think, i want to take a step back and just a note that i don't think this is what most officers signed up for when they went to the academy. they didn't foresee themselves becoming an agent of a tax system. they didn't see themselves as tools to expropriate wealth from the committee. and furthermore, most of these officers don't work their beat with a partner. if anyone is going to have the back, it's going to be the community they serve. but there's no way they're going to get that community buy-in and support and partnership if they are a walking financial catastrophe, if they are a threat in so many dimensions. so at the margins i think this is not just harming families and farming households. it's putting the officers themselves in greater danger. at the very least, impairing their ability to execute their duty. if you want to get into the real nitty-gritty, there's additional small policies, ending federal programs to remove the incentive for seizures and for anticipating and drug arrests that can lead to greater seized property revenues. but i think the most important thing to establish in this conversation is the goal to dilute this incentive and to reestablish trust between officers and the community that public safety is, in fact, their principal goal. >>thank you. i'd like to ask you the same question, you could say more about what exactly you're proposing and how you see it working. >> absolutely. as i mentioned in my initial remarks that it's very important that objective information be used in ability to pay calculation. one of the things you want to think about it in gauging an institution designed at the front is what constitutes income and how broad is that. because one of the issues that is important to understand in this context is family members are often people who are paying, and that's particularly true -- there was a study in alabama that showed this was particularly true for middle-aged african-american women. so people who are not themselves debtors but are paying the debt for someone else. one of the things that you would do in this type of calculation is determine what income is, if the person has a job, then assess what their actual take-home pay is. if they are on public benefits, that could be used as a source of income. if you're applying this to wealthier individuals, you might think of other things like real estate income and the like. but focusing on folks are unlikely to have that, you have to think about what are the parameters of whose income are we going to include and the pressure with respect to family income is that on the one hand, if the person has access to that money, it seems illegitimate not to include it within what they're paying. on the other hand, we have a real and serious concern that people who did not engage in an offense are being effectively punished for it. so we can look at models. experiments in the united states in the late 1980's and early 1990's that included some aspects of family income, consumer bankruptcy, federal student financial aid. there are a number of models we can look at to try to establish very clear parameters of what does and doesn't count. what i recommend in the paper is that family income be limited to income to which a person has a legal or equitable right and not the other. we have to match that on the deduction site. anyone whose income is included should be included in the cost of living deductions, as well as anyone who is dependent on those people. but not go any further than that on either side to ensure we have a clear cabin determination of what income includes. on the deduction side, it is important to think about things like daily cost of living. that may be different in different jurisdictions. but again, looking at these models from the late 1980's, there are ways that you can set very standardized amounts so the actual application of the system is not labor-intensive administratively. then you need to make sure there is some wiggle room. so someone comes into the system who for instance, has very serious medical needs, you want to make sure we think about what the income is that that is captured. once you've determined what a person's ability to pay is, the next big question is, how do you actually use that to graduate the economic sanctions? there are really three different models i talk about in the paper. one is something that's been adopted recently in san francisco, with respect to traffic tickets, which is to say if you are able to pay x amount, you get the normal traffic ticket amount. if not, if you're below that threshold, we will knock 80% off the ticket. that's sort of a sharp line below, if you fall below to get some relief. one of the concerns is if you're slightly above that line, you don't get the relief and there will be some people who are slightly below that line the might be less relief from that. so that's the system that could only be really useful at the very lowest in of the amounts of economic sanctions were talking about. another approach is to use a sliding scale which gives you more clarity, and then finally the third approach i talked about in the paper is it's an actual model. so just to explain what that is, you would take the adjusted daily income of the person and multiply it by the liability unit. the result of which would be the fine imposed. the penalty given is established by the seriousness of the offense. unit, burglary might be 100. they are entirely dictated by the seriousness of the offense and that multiplication then result in the matter if it's a one panel degenerate in my income is ten dollars a day, my fine would be $10. my daily income was $100 a day, like, i would be $100. that's a model we've had some experimentation with within the united states. used as i mentioned earlier several european and latin american countries and we get some data what that would look like. >> great. take a step back and ask kind of what i think is a core question. we teach undergraduates in the economics of crime that incarceration involves a whole host of cost and that fines can actually be an alternative to those that are preferable in some instance because you can deter crime, punish it, but you are in principle allowing people to continue to work and you're not paying the cost of an and causing the unwanted when it goes wrong, or that sort of econ 101 takers off the rails. this is a question for anyone. >> something professor colgan touched on, the effects of enormous fines, which is if the fine and the time in which you have to remit payment is such that your standard occupation is just not going to cover it, you have a lot of people in a situation where property crime, where, i mean, just boosting becomes your best option other than maybe taking out a payday loan. you have two terrible choices. one with a crippling interest rate that will cripple you financially and you'll probably have to default on, or the riskier option of participate in some sort of low probability of getting caught, quick payoff criminal activity. so now you are actually driving people who didn't previously have criminal records into criminal activity because it is their best option in a terrible situation. >> i think we have to make some distinctions. set aside forfeiture. we haven't referenced the supreme court decision, very important, lots of interesting opportunities keeping your folks busy. forfeiture is ill-gotten gains, crimes different rationale. let's be clear about the distinction between fines and fees in terms of the public purpose. so fines are intended in our jurisprudence to be a type of punishment. they should be affordable. even within that, they are our andrnatives to that method, ay fines are one. we have $30 million of projects underway, so one of the things we should be doing now, day fines is one. i hold out little hope that we have fines as an alternative to incarceration realities. if we look to fines as a way to undo mass incarceration, it will be a long time before we get there. in some cases, the judges would say this and that, but fees aren't entirely different beast. are imposed under this user fee idea. aey are not intended to have criminal justice purpose. they are revenue-generating. some courts, not just police come it is also judges, sheriffs , probation officers. that economic incentive is built into the fee structure. at the end of the day, maybe the revenue goes to the same government, but the public purpose is very different between those two, our view. public good should not be on the backs of people involved in criminal justice. should be paid for by the taxpayers. that is where we come into conflicts. >> an extension of what jeremy said, the criminal justice system is public good it needs to be funded through reasonable taxes. and the question is, what are the principles that guide the structure? that is where we have a different take on mass incarceration. you have to rebuild the capacity for the country to see the purpose of sanctions is to make everybody whole -- communities whole, health and well-being of the fact that the extension of the peace and security construct and it is an important adjustment. we do need to bring down incarceration as a sanction. to far reduce the degree of incarceration, they deliver all important parts of reorienting the system toward the general peace and security for all concept. >> it is important when talking about deterrence, meaningful choice about the confines of the law. but there are a number of things we charged economic sanctions for with there is no meaningful choice. they don't have a meaningful choice to operate within the confines of the law. and we are still adding to their burden fees that will never be paid to. that person will end up in jail at some point because as we put them in the system, why is that a crime? why has that has been criminalized? that is a key part of the conversation. >> let me lift up the power of litigation. we sued 13 judges in the city of new orleans, the city of new orleans, a class-action on behalf of poor people, overwhelmingly african-american, who were incarcerated, and one of the powerful things in the decision we got from the court last year was recognition of the unconstitutional conflict of interest, judges proposing these fines and fees and it underscores how we can't look to the courts and judges to self-police and impose the reforms that ultimately will be necessary to turn the system around. >> let me tack on one thing. i see so much of the fee structure in this structure, was the fools good ambition of the free lunch because criminals will pay for it. the implied message. in economics, this can't be had. if you want a good public good provided, you have to pay for it. >> we are getting a lot of great audience questions. we will turn to those. ask you to think about interacting about the criminal justice system. i want to toss that out generally. >> back to arkansas. an interesting place. two judges, the end goal was to improve what was broken with the criminal justice system behind the community. one of the first things they did was they terminated a contract with a private company called justice network. they had profited and extracted hundreds of thousands of dollars on the backs of poor people for years. they decided they would put in place a better system, people had been locked up because of their inability to pay the predatory private probation that knock on people's door and cooperated with police. threatened arrest at every turn. remarkably, that private company sued the judges. it is a case that is moving forward now. we have weighed in and offered up support of the judges, but it underscores the dangers of privatizing aspects of the criminal justice system and the sense of entitlement that so many predatory companies have. it is important for the public to be vigilant when we hear discussions about cities, counties, government in general entering contracts with private companies. it is just emblematic of so many problems that riddle communities that privatize. >> we often look at privatization, private prisons, as the devil incarnate. and sometimes they do terrible things, but we shouldn't let that question distract from the fact that we have elected people to our democracy who are doing that -- judges, d.a.'s are complicit, financial offices. what i find encouraging in addition, counties, board of supervisors created a financial task force and they decided by ordinance to stop doing it, stop imposing fees omn juveniles. through legislation. what happened in the justice reform act goes up, should grab on to this and just like aggressive prosecutors being elected, say stop doing it. that is a different proposal from the ones we are hearing from our academic colleagues, but that is the way to think about it. and stop feeding the private beast. >> i think of these as two sides of the same coin. it comes to power and discretion being traded. and in one case being put in the private marketplace and being exchanged and turned into profit and in another place in the political market place the power is traded for revenue and vote and political support and both both are terrible outcomes. the seed underneath both of them in the criminal justice system that can then be exchanged. so much of what we have an obligation to do is try to mitigate that discretion and how it can be afforded. >> we don't have much time left. there's lots to talk about. what i would like to conclude with is a question to everyone. tell me briefly, what are you either most optimistic about being able to fix fairly soon or a different take, what should we be pushing on? what should be getting more emphasis? >> i will repeat what i said before -- the day fines model of the sanctioning part of this is an important one to move forward. it has been used in europe. germany and the netherlands are two cases that will be held up, the use of incarceration so in the u.s. incarceration makes up 80% of sanctions. in germany that is 6%. in the netherlands it is 7% or 8%. a lot has to be decriminalized to get there. you also have to have a much broader set of alternatives, and that is a critical part of that. i would echo jeremy and say just putting an end to the fees part of it, rebuilding the concept of the administration of justice as a public good. >> i will say briefly the attention being paid to criminal justice reform is long overdue, electrifying. this issue has not gotten sufficient attention. it is mobilizing to a point of focus for those doing the hard work at ground level, but it is also up to the journalists. follow the money. where are the folks, conflict of interest litigation is so important, there is inherent conflict in paying for the operation out of fees and fines of people under supervision and the private case. there is an exposure opportunity here that we are just starting to see emerge. the other one i referenced, localities in cook county or alameda county, taking hold of it and this is about us. we can stop it. >> the bipartisan support for justice reform is exciting and reason to be hopeful. i think the resurgence of modern-day debtors prisons, jeremy is exactly right, not getting the attention it should. it is a problem that is impacting overwhelmingly african-americans, latino, low income communities, destroying communities, pulling families apart, putting people in the criminal justice system who pose no threat to public safety. at the end of the day, we are talking often about offenses that don't rise to the level of being a crime and waste taxpayer dollars. and ultimately endanger communities because we are not focusing on the real threats and real issues that beleaguer communities. we issued a report that looks at these problems in arkansas in a real systematic way and it speaks to a problem that is pervasive across the country and i am hopeful we can find the bipartisan coalition necessary to achieve reform across the country. >> thanks to our panelists. we are going to have a break and the second panel. [captions copyright national cable satellite corp. 2019] the same brookings event, there was a discussion about ho

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