WORKING PAPER

SENTENCING FOR DOLLARS:
THE FINANCIAL CONSEQUENCES OF
A CRIMINAL CONVICTION

Alan Rosenthal, J.D.
Marsha Weissman, M.P.A.
Center for Community Alternatives
Justice Strategies
115 E. Jefferson Street, Suite 300
Syracuse, NY 13202
and
th
39 West 19 Street, 10th Floor
New York, NY 10011
February 2007

Sentencing for Dollars

SENTENCING FOR DOLLARS:
THE FINANCIAL CONSEQUENCES OF A CRIMINAL CONVICTION

EXECUTIVE SUMMARY ............................................................................................................2
I.

INTRODUCTION...........................................................................................................4

II.

FINANCIAL PENALTIES: THE ABILITY TO PAY AND PEOPLE
IN THE CRIMINAL JUSTICE SYSTEM .............................................................................5

III.

FINANCIAL PENALTIES: PURPOSES AND LEGISLATIVE AUTHORITY ............................8

IV.

THE GROWING USE OF FINANCIAL PENALTIES ...........................................................13

V.

DOING THE MATH: THE CUMULATIVE BURDEN OF FINANCIAL PENALTIES................16

VI.

THE COLLECTION BUSINESS: ENFORCEMENT OF FINANCIAL PENALTIES ...................18

VII.

ENDURING LIABILITIES: CONSEQUENCES OF NON-PAYMENT .....................................22

VIII.

NEW YORK STATE AND BEYOND: THE EXPLOSION OF FINANCIAL PENALTIES...........25

IX.

POLICY CONSIDERATIONS AND RECOMMENDATIONS ..................................................28

X.

CONCLUSION...............................................................................................................30
APPENDIX A ...............................................................................................................33

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EXECUTIVE SUMMARY
The financial penalties imposed, directly or indirectly, as a result of a criminal
conviction, are among the least considered or analyzed of the collateral consequences. Driven
by a combination of philosophical purposes – punishment, reparation, cost recovery, revenue
production and cost shifting – local governments, states and the federal government have come
to impose a vast array of fines, fees, costs, penalties, surcharges, forfeitures, assessments,
reimbursements and restitutions that are levied against people convicted of criminal offenses.
Currently, these financial penalties are created and imposed in a vacuum with each new
fee viewed as a solitary cost. The cumulative impact of piling on each new financial penalty is
ignored and the roadblocks to reintegration are often unrecognized. When viewed in isolation,
these penalties may appear to be a good source of revenue and a way to shift costs from the
“taxpayer” to the “offender.” Financial sanctions may also give the appearance of being “tough
on crime.” However, these penalties look quite different when considered in their totality and in
the context of their impact on the person convicted and his or her family.
Over the past decade we have become increasing aware of the challenges faced by people
reentering the community from prison and the challenges faced by communities and families
receiving formerly incarcerated people. We know that the numbers of people returning home are
staggering and we also know that the challenges they face are daunting and include poverty,
health and mental health problems, lack of education and employment experiences and collateral
consequences that impede access to jobs and education. The hurdles to reintegration caused by
the financial consequences of criminal convictions are among the least recognized but may have
some of the most far reaching impacts as these debts become civil liabilities, and are entered
onto credit records that are increasingly accessible to employers.

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This paper looks at the current status of these penalties in New York State and
provides examples of how these costs mount up for people who are unlikely to have the
resources to pay these debts. In one example, we show how the various fines, fees and
surcharges for a person convicted of a class E felony DWI can add up to more than $7,500. In
another example, someone convicted of a drug offense can face more than $33,000 in
surcharges, fees and child support upon their release from prison.
Financial penalties certainly have a place in a continuum of sanctions. Restitution for
example, supports reparation to the victim, and also provides a way for a person convicted of a
crime to take responsibility for one’s actions. However, it makes little sense to develop and
apply financial penalties in an ad hoc fashion without considering the cumulative impact on the
people who will be required to pay. This paper offers several recommendations to counter the
negative consequences of financial penalties including the development of a comprehensive
inventory of what financial penalties exist and how they overlap, establishing and clarifying
provisions that exempt indigent people from certain penalties, and prohibiting the enactment of
local laws that impose additional financial obligations on individuals as a result of a criminal
conviction.
There are profound policy issues that need careful consideration including the
implications of allowing financial penalties to supplant tax revenues. Public safety is a
community goal and a public good. As such, the cost should be borne by the public and not
shifted to those who can least afford these financial burdens.

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SENTENCING FOR DOLLARS:
THE FINANCIAL CONSEQUENCES OF A CRIMINAL CONVICTION
Alan Rosenthal* and Marsha Weissman**
I. INTRODUCTION
The financial penalties imposed, directly or indirectly, as a result of a criminal
conviction, are among the least considered or analyzed of the collateral consequences.1 Driven
by a combination of philosophical purposes – punishment, reparation, cost recovery, revenue
production and cost shifting – local governments, states and the federal government have
developed a vast array of fines, fees, costs, penalties, surcharges, forfeitures, assessments,
reimbursements and restitutions that are levied against people convicted of criminal offenses.
The use of financial penalties (other than restitution) is fraught with contradictions. On
the one hand, it allows government to defray some of the cost of maintaining the criminal justice
system by imposing fees on people who have been convicted of a criminal offense. On the other
hand, the imposition of these financial burdens threatens the successful reintegration of people
returning to their communities from prison as self-supporting, law-abiding citizens. Currently,
financial penalties are created and imposed in a legislative/political vacuum. Each new fee is
viewed as a solitary cost. The cumulative impact of piling on each new financial penalty is
ignored and the roadblocks to reintegration are unrecognized. This lack of attention to financial

*

Alan Rosenthal, Esq. is the Director of Justice Strategies, the Center for Community Alternatives’ research,
policy and training division. I am grateful to the members of the New York State Bar Association Special
Committee on Collateral Consequences of Criminal Proceedings who worked with me as co-authors on the Report,
Re-Entry and Reintegration: The Road to Public Safety. The chapter in that Report that I co-authored on financial
consequences served as a foundation for this working paper. In particular I would like to thank Peter J.W. Sherwin,
Jennifer E. Burns and Joseph D. McCann.
**

Marsha Weissman, MPA is the Executive Director of the Center for Community Alternatives.

1

See Center for Community Alternatives, Sentencing for Dollars, available at
http://www.communityalternatives.org/articles/policy_consider.html. This was CCA’s initial effort to undertake a
policy analysis of financial penalties.

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penalties obscures policy questions about how society ought to balance its interests in revenue
generation, individual accountability, community reintegration, and public safety. This paper
seeks to illuminate the impact of financial penalties. To do so we will place an inventory of such
penalties in the context of who is being asked to shoulder these financial burdens and the policy
issues at stake.
This paper uses practices in the State of New York to illustrate these largely invisible
collateral consequences. We focus on the financial consequences that are in the nature of
penalties, i.e., financial obligations imposed upon the criminal defendant as he or she proceeds
through the criminal justice system as a result of a criminal conviction. Clearly there are many
other financial consequences that are faced not only by defendants, but also their families, and
even their communities. These “other” financial consequences, which are less in the nature of
penalties, are no less compelling or consequential but are beyond the scope of this paper.2
II. FINANCIAL PENALTIES: THE ABILITY TO PAY AND PEOPLE IN THE CRIMINAL JUSTICE SYSTEM

An assessment of the efficacy of financial penalties must start with a look at who is asked
to pay these varies charges.
A plethora of data show that financial penalties are being imposed upon people with little
if any means to pay these costs either directly or by reaching out to family members for
assistance. State and national data reflect that people involved in the criminal justice system face
extreme social and economic marginalization. For example, of the people released on parole in

2

In addition to the direct financial penalties imposed judicially or administratively, a person with a criminal
conviction faces many other collateral consequences that have financial implications. These include a diminished
earning capacity, diminished employment prospects, loss of professional licenses, bars from bidding on public
contracts, bars from some public and subsidized housing as well as difficulties in obtaining public benefits. Other
financial consequences are mentioned here in order to acknowledge their significance: child support arrears, creation
of civil liability, collateral estoppel, forfeiture, access to the courts and filing fees, MCI collect telephone calls,
travel costs, participation fees, prison industries, up-front fees for indigent criminal defense, booking fees, and issues
related to how people in prison are counted in the census.

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the New York State, 49% were unemployed, 81% needed services for drug abuse, and 15% had
only a grade school education.3 Data from the New York State Department of Correctional
Services (DOCS) further demonstrate that people in the criminal justice system have very limited
job prospects. Thirty-six percent (36%) of prisoners tested below an 8th grade reading level and
more than half had not graduated from high school or received a GED.4 National data show that
nearly one third of adults in prison were unemployed in the month before their arrest compared
to 7% of the general population.5 National data also show a 60% unemployment rate for
formerly incarcerated people one year following their release from prison.6 The U.S. Bureau of
Justice Statistics reports that about 80% of all felony-charged defendants are represented by
public defenders, a clear proxy for the indigency of the criminal justice population.7
Health and mental health problems of people with criminal records also pose significant
barriers to gaining and maintaining gainful employment. Almost 8% of people returning from
prison are HIV-positive.8 It has been estimated that almost one-half of all people who have been
previously incarcerated carry with them so many medical problems that it is unrealistic to expect
them to re-enter society as productive citizens without much greater assistance than is currently

3

See New York State Division of Parole, Parolee Facts (Mar. 2004), available at
http://parole.state.ny.us/program statistics.html.
4

See New York State Dep’t of Correctional Services. Hub System: Profile of Inmate Population Under
Custody on January 1, 2003.

5

Joan Petersilia, WHEN PRISONERS COME HOME: PAROLE AND PRISONER REENTRY 40 (2003).

6

Center for Employment Opportunities, Issue Overview: Crime and Work, at 1, available at
http://www.ceoworks.org/Roundcrime_work012802.pdf (citing Petersilia at the Reentry Roundtable).

7

Caroline Wolf Harlow, Defense Counsel in Criminal Cases (Bureau of Justice Statistics, Wash., D.C.
2000). The data was obtained from the Nation’s 75 most populous counties. Indigence is based upon a
determination that the defendant qualified for publicly financed counsel, either assigned counsel or public defender.

8

Laura Maruschak, HIV in Prisons and Jails, 2002 (Bureau of Justice Statistics, Wash., D.C. 2004).

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Sentencing for Dollars
available.9 Nearly 16% of all people in prison, jail, or on probation were identified as mentally
ill by a Bureau of Justice Statistics study.10 The National Adult Literacy Survey has established
that 11% of people in prison, compared with 3% of the general population, self-reported having a
learning disability.11
Empirical evidence demonstrates that people leaving prison will have an extremely
difficult time finding employment after release. There is a serious stigma attached to a criminal
history - particularly a prison record. Surveys of employers reveal a great reluctance to hire a
person with a felony conviction.12 A study by Holzer found that more than 60% of employers
were unwilling to hire an applicant with a criminal record.13 Devah Pager’s research showed
that acknowledging a prison record cut a white man’s chances of getting called back for a job
interview in half, and decreased a black man’s chances for an interview by two-thirds.14 Even
when a person with a prison history was able to find a job, future earnings were lower by about
30%.15

9

Richard B. Freeman, CAN WE CLOSE THE REVOLVING DOOR? RECIDIVISM VS. EMPLOYMENT OF EXOFFENDERS IN THE U.S. 11 (2003).

10

Paula M. Ditton, Mental Illness and Treatment of Inmates and Probationer, at 1 (Bureau of Justice
Statistics, Wash., D.C. 1999).

11

Stefan LoBuglio, Time to Reframe Politics and Practices in Correctional Education, ANNUAL REVIEW OF
ADULT LEARNING AND LITERACY, Ch. 4. Vol 2 (National Center for the Study of Adult Learning and Literacy,
Cambridge, MA 2001).
12

Joan Petersilia, WHEN PRISONERS COME HOME: PAROLE AND PRISONER REENTRY 117 (2003).

13

Harry Holzer, What Employers Want: Job Prospects for Less-Educated Workers (Sage 1996).

14

Devah Pager, The Mark of a Criminal Record, 108 AM. J. OF SOC. 5, 937-75 (2003). Even more startling
was her finding that a white man with a criminal record was still more likely to be called back for an interview than
a black man with no criminal history.

Jeffrey Kling, The Effect of Prison Sentence Length on the Subsequent Employment and Earnings of
Criminal Defendants (2002) (unpublished Manuscript, on file with Princeton University).

15

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People leave prison typically with no savings or assets, and limited job training or work
experience. They are discriminated against in their search for employment as a result of race,
ethnicity, and the stigma of a criminal history, and subject to a host of formal and informal
barriers to employment.16 For example, a 2001 survey by the Legal Action Center identified
statutory restrictions that bar or impede the ability of individuals with criminal records to obtain
over 100 state licenses in New York.17 As recently as April 1, 2005, New York State
Department of Health amended its regulations to prohibit the employment of any person
convicted of any felony in the preceding 10 years in the field of nursing homes or home care.18
The amendment of these regulations was followed by legislation in 2005 to the same effect.19
The expansion of legal barriers to employment has been accompanied by an increase in
the ease of checking criminal records due to new technology and expanded public access to
records. As discussed below, debt due to non-payment of financial penalties appears on one’s
credit history. A criminal past has become both more public and more exclusionary, limiting the
universe of available work.20 It is within this context of poverty and unemployability that the
growing use of financial penalties must be evaluated.
III. FINANCIAL PENALTIES: PURPOSES AND LEGISLATIVE AUTHORITY
Financial penalties can be sorted into three categories: fines imposed as part of the
sentence; surcharges, fees and civil penalties, and restitution as part of efforts to make the victim
whole.
16

S.M. Dietrich, Criminal Records in Employment, in EVERY DOOR CLOSED (A.E. Hirsch et al. Eds., 2002).

17

See New York State Occupations License Survey, authored by the Legal Action Center (2001).

18

10 NYCRR §§ 400.23, 763.13, 766.11 and 18 NYCRR § 505.14.

19

N.Y. PUB. HEALTH LAW §§ 2899. 2899-a; N.Y. EXEC. LAW § 845-b.

20

Jeremy Travis, BUT THEY ALL COME BACK: FACING THE CHALLENGES OF PRISONER REENTRY 68 (2005).

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Fines
Most directly connected to the punishment for the offense are the financial consequences
of fines that are imposed as part of the sentence.21 A fine is a sentence to pay a fixed amount,
and may be imposed in addition to a revocable sentence (conditional discharge, probation, or an
intermittent sentence) or a sentence of imprisonment. If a sentence of imprisonment is
mandated, or if imprisonment is not mandatory but the felony is one defined in Penal Law
Article 220 (drugs), then a fine may only be imposed in addition to the sentence of
imprisonment. Otherwise, it may be the sole sanction.22
Surcharges, Fees and Civil Penalties
Every conviction in the State of New York carries with it a mandatory surcharge.23

This

surcharge is a fee that is imposed upon a defendant when he or she has been convicted of an
offense. It is separate and distinct from any fine which the court may have imposed. The current
surcharges, amounts, and statutory authority are listed below:

21

In New York State, the provisions for fines are primarily found in Penal Law Article 80 and Vehicle and
Traffic Law Article 45.
22

23

See N.Y. PENAL LAW §§ 60.01(2)(c), 60.01(3)(b), 60.05(7).
Provision for these surcharges is made by Penal Law § 60.35 and Vehicle and Traffic Law § 1809.

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MANDATORY SURCHARGES (as of January 1, 2007)
AMOUNT

APPLIES TO

STATUTE

$250

VEH. & TRAF. LAW § 1192 DWI felony

VEH. & TRAF. LAW § 1809(1)(b)(i)

$140

VEH. & TRAF. LAW § 1192 DWI misdemeanor

VEH. & TRAF. LAW § 1809(1)(b)(ii)

$25

VEH. & TRAF. LAW Article 9 infraction

VEH. & TRAF. LAW § 1809(1)(a)

$45

Selected VEH. & TRAF. LAW offenses

VEH. & TRAF. LAW § 1809(1)(c)

$25

Surcharge for any conviction under VEH. &
TRAF. LAW § 1192

VEH. & TRAF. LAW § 1809-c

$250

Felony surcharge

PENAL LAW § 60.35(1)(a)(i)

$140

Misdemeanor surcharge

PENAL LAW § 60.35(1)(a)(ii)

$75

Violation surcharge

PENAL LAW § 60.35(1)(a)(iii)

$5

Proceeding in town or village

VEH. & TRAF. LAW § 1809(9)

Designated surcharge paid to agency collecting
restitution for collection and administration

PENAL LAW § 60.27(8)

5%-10%
of total
restitution

In New York, there is an array of statutorily authorized fees including the crime victims’
assistance fee, DNA Bank Fee, Sex Offender Registration Fee, termination of license revocation
fee, termination of suspension fee, parole supervision fee, probation supervision fee for DWI
offenses, supplemental sex offender victim fee, and incarceration fee. These fees are also
distinct from any fines imposed by the court. These fees, amounts, and statutory authority are
listed below:

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FEES (as of January 1, 2007)
AMOUNT

APPLIES TO

STATUTE

$20

Felony offense Crime Victims’ Assistance Fee (CVAF)

PENAL LAW § 60.35(1)(a)(i)

$20

Misdemeanor offense CVAF

PENAL LAW § 60.35(1)(a)(ii)

$20

Violation CVAF

PENAL LAW § 60.35(1)(a)(iii)

$20

For VEH. & TRAF. LAW § 1192 felony offense CVAF

VEH. & TRAF. LAW § 1809(1)(b)

$20

For VEH. & TRAF. LAW § 1192 misdemeanor offense CVAF

VEH. & TRAF. LAW § 1809(1)(b)

$5

For VEH. & TRAF. LAW Art 9 traffic infraction CVAF

VEH. & TRAF. LAW § 1809(1)(a)

$5

VEH. & TRAF. LAW offenses covered by 1809(1)(c) CVAF

VEH. & TRAF. LAW § 1809(1)(c)

$50

DNA Databank fee: a person convicted of a designated offense as defined in
Executive Law § 995(7) shall, in addition to a mandatory surcharge and crime
victim assistance fee, pay a DNA databank fee

PENAL LAW § 60.35(1)(a)(v)

$50

Sex offender registration fee (SORA): a person convicted of a sex offense as
defined in Correction Law § 168-a(2) or a sexually violent offense as defined in
Correction Law § 168-a(3)

PENAL LAW § 60.35(1)(a)(iv)

$10

SORA change of address fee

CORRECTION LAW § 168-b(8)

$50

Termination of license revocation fee. If driver’s license is revoked – application
for re-issuance

VEH. & TRAF. LAW § 503(2)(h)

$100

Termination of license revocation fee. If driver’s license is revoked for an
alcohol-related offense and driver is under 21

VEH. & TRAF. LAW § 503(2)(h)

$25

Termination of license suspension fee

VEH. & TRAF. LAW § 503(2)(j)

$100

Termination of license suspension fee – Zero Tolerance. If driver is under 21,
license is suspended for an alcohol-related offense

VEH. & TRAF. LAW § 503(2)(j)

$35

Termination of license suspension fee where suspension is for failure to appear,
pay fine, penalty, or mandatory surcharge

VEH. & TRAF. LAW § 503(2) (j-1)(i)

$30/month

Fee for parole supervision

EXEC. LAW § 259-a(9)(a)

$30/month

Fee for probation supervision (DWI - related)

EXEC. LAW § 257-c

$1/week

Incarceration Fee: The commissioner may collect from the compensation paid
to a prisoner for work performed while housed in a general confinement facility
an incarceration fee.

CORRECTION LAW § 189(2)

$1,000

Supplemental Sex Offender Victim Fee

PENAL LAW § 60.35(1)(b)

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Finally, as shown below, the Vehicle and Traffic Law provides for civil penalties for
people convicted of certain alcohol or automobile insurance related offenses.
CIVIL PENALTIES (as of January 1, 2007)24
AMOUNT

APPLIES TO

STATUTE

$125

Zero Tolerance Law: For offenders under
age 21 for alcohol-related offense

VEH. & TRAF. LAW § 1194-a(2)

$750

Operating with no insurance or
underinsured

VEH. & TRAF. LAW § 319(5)

$500

Chemical test refusal

VEH. & TRAF. LAW
§ 1194(2)(d)(2)

$550

Chemical test refusal – commercial vehicle

VEH. & TRAF. LAW §
1194(2)(d)(2)

$750

Second Chemical test refusal with alcohol
within 5 years

VEH. & TRAF. LAW
§ 1194(2)(d)(2)

$750

Chemical test refusal with prior VEH. &
TRAF. LAW § 1192 convictions within 5
years

VEH. & TRAF. LAW
§ 1194(2)(d)(2)

Restitution
Restitution is the financial consequence most directly related to the offense. Drawing
upon one of the concepts of restorative justice, restitution and reparation in New York State are
authorized by Penal Law § 60.27 as part of the sentence in addition to any other permissible
disposition.

24

Includes amendments implemented by the DWI Reform Act of 2006 which became effective on November

1, 2006.

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Court-ordered restitution covers the victim’s loss resulting from the crime.25 If restitution
is made prior to the imposition of the sentence, the defendant is not required to pay the
mandatory surcharge or crime victims assistance fee.26 If, however, the restitution is not made
by the time the sentence is imposed, a court must impose an order for payment of the mandatory
surcharge and crime victim assistance fee to go along with the order of restitution.27
In all cases where restitution is imposed as part of the disposition, the court must also
impose a designated surcharge of 5% of the entire amount of the restitution payable to the
official or organization designated as the agent to collect the restitution pursuant to Criminal
Procedure Law § 420.10(8).28 Often the collection agent is the probation department. However,
Penal Law § 60.27(8) authorizes the court to impose upon the defendant an additional surcharge
of up to another 5%, upon application by the designated official, if they can show that the actual
cost of collection exceeds the initial 5%.
IV. THE GROWING USE OF FINANCIAL PENALTIES
The use of financial penalties has flourished since the early 1990’s.29 New York State
exemplifies this trend in the increased use of fees to generate revenue. New York has seen the

25

Whenever the court requires restitution to be made, it must make a finding as to the dollar amount of the
fruits of the offense and the actual out-of-pocket loss to the victim caused by the offense. N.Y. PENAL LAW
§ 60.27(2).
26

N.Y.PENAL LAW § 60.35(6); N.Y. VEH. & TRAF. LAW§ 1809(6).

People v. Quinones, 95 N.Y.2d 349 (2000). The Court of Appeals has held that the Penal Law §60.35(4)
provides a mechanism whereby a person can seek a refund of the mandatory surcharge and the crime victim
assistance fee after the restitution is paid.

27

28

See N.Y. PENAL LAW §60.27(8).

29

The use of mandatory surcharges started in 1982. N.Y. Laws of 1982, Chapter 55. Initially, the mandatory
surcharge for a felony was $75.00 and $25.00 for a misdemeanor. It has increased repeatedly over the years until it
reached its current level of $250.00 for a felony and $140.00 for a misdemeanor.

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initiation and/or increases of such imaginative fiscal penalties as mandatory surcharge, crime
victim assistance fee, designated surcharge and additional designated surcharge, incarceration
fee, DNA Databank fee, parole and probation supervision fees, sex offender registration fee,
supplemental sex offender victim fee, driver responsibility assessment, reimbursements, and
disciplinary surcharge to mention a few, along with repeated legislative efforts to add and
increase other financial penalties. This expansion has taken place without any review of the
cumulative effects the fines, fees, surcharges and penalties may have on the person convicted,
and his or her family.
Defendants are often unaware of the financial obligations. With so many financial
penalties scattered throughout different sections of the law, it is difficult for either a judge or
defense counsel to locate and identify them all in order to review them with the defendant. The
chaotic array of financial penalties undermines defense counsel’s ability to adhere to professional
standards that require defense counsel to be familiar with all of the collateral consequences of a
sentence including fines, forfeiture, restitution, and court costs.30 Defense counsel are also
required by professional standards to advise the defendant, sufficiently in advance of the plea, as
to these possible collateral consequences.31 Most defense counsel have difficulty keeping track
of the ever-changing fees and surcharges.32

30

See National Legal Aid and Defender Association Performance Guidelines for Criminal Defense
Representation, Guideline 8.2 (3d printing, 2001).

31

See American Bar Association Standards for Criminal Justice: Prosecution Function and Defense
Function, Standard 14-3.2 (3d ed. 1993).

32

A pioneering effort to consolidate these financial penalties in one place as a useful tool for defense
counsel was undertaken by the Center for Community Alternatives in 2004. See Center for Community
Alternatives, Sentencing for Dollars: Policy Considerations, available at
http://www.communityalternatives.org/articles/policy_consider.html.

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States, including New York, have both increased the number and kinds of financial
penalties and also exposed more people to these sanctions. For example, on November 18, 2004,
New York introduced a new financial penalty known as the Driver Responsibility Assessment33
that makes any person convicted of DWI or DWAI or any person found to have refused a
chemical test34 liable for payment of a Driving Responsibility Assessment in the amount of
$250.00 per year for each of three years. Vehicle and Traffic Law § 503(4) was also added to
provide for an additional Driver Responsibility Assessment for any person who accumulates 6 or
more points on his or her driving record within any 18 month period. The amount of the
assessment is $100.00 per year for each of 3 years for the first 6 points on a driver’s record and
an additional $25.00 per year for each additional point on the driver’s record.35
The ensnaring of more people in the web of financial penalties is exemplified by changes
in New York State’s treatment of youthful offenders.36 Until February 16, 2005, youthful
offenders were exempt from financial penalties. However, the enactment of Penal Law
§60.35(10) requires the imposition of fees and surcharges to “sentences imposed upon a youthful
offender finding.” The same change was made in Vehicle and Traffic Law § 1809(10).
Perhaps most disturbing has been the imposition of fees in the absence of statutory
authority. In 1992, Executive Law § 257-c was enacted authorizing counties and New York City
to pass local laws permitting the imposition of a $30 probation supervision fee on individuals
33

See N.Y. VEH. & TRAF. LAW §§ 1199 and 503(4).

34

Chemical tests include breath, blood, urine, or saliva for the purpose of determining the alcohol and/or drug
content of the blood.
35

The Driver Responsibility Assessment is imposed by the Commissioner of the Department of Motor
Vehicles.

36

Youthful offenders are young people between the ages of 14 and 19 convicted of a crime and adjudicated a
youthful offender (YO) pursuant to New York Criminal Procedure Law § 720.20. YO status provides certain
sentencing and post-conviction benefits and protections.

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sentenced to probation for a DWI conviction. These fees are not required to be turned over to
New York State and can instead be kept by local probation departments. As this was a time of
declining state aid to probation, many counties passed such local legislation. However, some
counties went beyond fees authorized by the Executive Law and enacted local legislation
authorizing the collection of administrative fees for supervising all probationers as well as fees
for such “services” as drug testing, preparation of pre-sentence reports, electronic monitoring and
victim impact panels. Despite an opinion by the New York State Attorney General (Opinion No.
2003-4, April 7, 2003) that a county may not enact local legislation permitting fees for probation
services except as specifically authorized by statute, some counties have continued to collect
probation fees that are not authorized by state law.37
V. DOING THE MATH: THE CUMULATIVE BURDEN OF FINANCIAL PENALTIES
The appropriateness of each individual financial penalty notwithstanding, problems
emerge when new penalties are enacted and old penalties are increased in a vacuum. There is
seldom any analysis of their cumulative consequences and how the sum of all these financial
penalties impact the typical person involved in the criminal justice system. By viewing each
financial penalty in isolation, these penalties may appear to be a good source of revenue and a

37

In both 2005 and 2006 legislation was proposed to authorize probation to collect additional user fees.
Senate Bill S. 2842 and 2842-A proposed to amend Executive Law § 257-c to allow for the imposition of a $30.00
per month probation administrative fee for any person convicted of any crime and sentenced to probation, and also
for the imposition of an $8.00 per test drug testing fee and an $8.00 per day electronic monitoring fee. Governor
Pataki’s Executive Budget for 2006 not only proposed to include the same amendments as Senate Bill S2842-A, but
also proposed several additional fees including an amendment to Penal Law § 60.35 that added a new $25.00
probation fee for any person on probation who is subject to a DNA bank fee. The new fee would have been paid to
probation to compensate them for supervising and ensuring compliance with the payment of the $50.00 DNA bank
fee. Likewise, there was a proposed $25.00 probation fee for any person on probation who is subject to a sex
offender registration fee so that probation could ensure compliance with payment of that fee. The net result of these
new fees would have required an individual to pay a fee totaling $50.00 so that probation could supervise the
payment of two other fees. See analysis by Center for Community Alternatives available at
http://www.communityalternatives.org/justice_strategies/financial_penalties.htm. The proposed legislative
expansion of the use of probation fees ultimately failed.

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way to shift costs from the “taxpayer” to the “offender.”38 Financial sanctions may also give the
appearance of being “tough on crime.” However, these penalties look quite different when
viewed in their totality, particularly given the poverty of the people who are expected to bear
these costs.
Two examples of common felony convictions illustrate how fines and fees add up to a
considerable sum for people with meager financial resources. In example 1, John, age 20, after
refusing a chemical test, was convicted of Driving While Intoxicated, a class E felony, and
Operating a Motor Vehicle with No Insurance, a misdemeanor. John was sentenced to 5 years
probation. The financial consequences of his conviction included:
EXAMPLE 1
Mandatory fine of no less than
Mandatory Surcharge
DNA Bank Fee
Crime Victim Assistance Fee
Probation Supervision Fee ($30.00/Month)
Fee for termination of license revocation
Surcharge for VEH. & TRAF. LAW § 1192 conviction
Civil Penalty for No Insurance
Civil Penalty for chemical test refusal with prior
VEH. & TRAF. LAW § 1192 conviction within 5 years
Driver Responsibility Assessment
Court Ordered installation of ignition interlock devise
(VEH. & TRAF. LAW § 1193(1-a)(c)(i)

$1,000.00
$250.00
50.00
$20.00
$1,800.00
$100.00
$25.00
$750.00
$750.00
$750.00
$2,175.00
$7,670.00

The sum of the financial penalties for this felony DWI conviction totaled $7,670.00.
Example 2 is Jane, a 26 year old single mother of two children, convicted of a class A-II
drug possession felony. She was sentenced to a 7 year determinate sentence and 5 years postrelease supervision. Jane’s two children have been in the custody of her mother since her arrest.
38

John Howard Society of Alberta, Correctional User Fees (2001), available at
http://www.johnhoward.ab.ca/docs/userfees/cover.html.

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Jane’s mother was on TANF (Public Assistance) and was required to petition for child support.
The financial consequences for Jane will be:
EXAMPLE 2

Mandatory Surcharge
Crime Victim Assistance Fee
DNA Bank Fee
Incarceration Fee
Parole Supervision Fee
Fee for termination of driver’s license suspension
Child Support (assuming a Court Order of $100.00/week) (6 years)

$250.00
$20.00
$50.00
$312.00
$1,800.00
$25.00
$31,200.00
$33,657.00

The sum of Jane’s financial consequences will be $33,657.00
VI. THE COLLECTION BUSINESS: ENFORCEMENT OF FINANCIAL PENALTIES
New York’s Penal Law, Criminal Procedure Law, Vehicle and Traffic Law, and the
Executive Law all provide for the collection of many of the financial penalties attendant to a
criminal conviction and apply to people who are in jail, prison, on parole, or probation.
Paying in Prison
As required by Penal Law § 60.35(5), when a person who has been convicted of a crime
or a violation and has been sentenced to a term of imprisonment has failed to pay the mandatory
financial penalties prior to incarceration39 the debt is collected from the “inmate’s funds” and/or
money earned by the person in a work release program.40 Inmates’ funds that are subject to
garnishment include money that a person brings when he or she is admitted to the prison, money
39

The penalties that are subject to collection while one is in prison include the mandatory surcharge, sex
offender registration fee, DNA bank fee, crime victim assistance fee or supplemental sex offender fee. The clerk of
the sentencing court is required to notify the superintendent or the municipal official of the facility where the person
is confined who must then collect the debt.
40

Vehicle and Traffic Law § 1809(5) makes the same procedure applicable for unpaid Vehicle and Traffic
cases where the mandatory surcharge or crime victim assistance fee is unpaid.

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earned during incarceration and money that is deposited on the person’s behalf during his or
incarceration.41
New York DOCS Directive Number 2788 establishes the procedure for the collection of
money by prison officials to pay the obligations of the incarcerated person, including all of the
financial penalties as well as judgments for child support payments, “gate money,”42 and work
release room and board fees. When an encumbrance is established, all money in the “inmate’s
fund” is applied to collection. If there are insufficient funds available in the “inmate’s fund” to
pay off the encumbrance, the balance due is collected at a rate of 20% of any money earned
while working inside the prison and 50% of any money sent into the “inmate’s fund,” including
any money sent by family or friends for commissary. When two encumbrances are active at the
same time, up to 40% of weekly earning and 100% of the money sent to the “inmate’s fund”
from outside the prison is collected. For people on work release, after room and board costs are
deducted, 100% of their wages are garnished if they have two or more outstanding judgments,
and 20% if they have one.43
Through these procedures, DOCS collects more than $2.5 million in fines, fees and
surcharges annually from “inmates’ funds,” from prisoners earning an average of one dollar a
day.44 Between April 1995 and March 2003 a total of $22 million was collected from “inmates’
funds”.45 During this same time period, DOCS collected nearly $15 million in fees that DOCS
41

See N.Y. CORRECT. LAW §§ 116, 500-c.

42

Gate money is the term used to describe the $40.00 that is given by the superintendent of the correctional
facility where the person was last confined to that person at the time of his or her release. This money is taken from
the funds in the “inmate’s account” that is earned while in prison or is sent in by family or friends. See N.Y.
Correction Law § 125(2) and New York State Department of Correctional Services Directive 2788.
43

DOCS Today, Vol. 13, No. 4 (Apr. 2004).

44

Id.

45

Id.

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itself imposed on prisoners, including room and board fees for people on work release, fees for
“day reporters” for people who live at home but report to work release prisons on a regularly
scheduled basis, and fines from disciplinary infractions.46 The fines from disciplinary infractions
represent more than 3.5 million dollars of the 22 million dollar total. These “mandatory
disciplinary surcharges” assess $5.00 automatically every time one or more disciplinary
infractions are affirmed at a hearing.47 These disciplinary surcharges had their genesis in the
early 1990’s when New York was undergoing a fiscal crisis. According to Anthony J. Annucci,
Deputy Commissioner and Counsel of the New York State Department of Correctional Services
they were conceived of as a revenue generating idea and were part of broader efforts to deter
prisoners’ lawsuits.48
Paying on Parole
The New York State Division of Parole is authorized by Executive Law § 259-a(9)(a) to
charge a supervision fee of $30.00 per month for each person on parole, conditional release,
presumptive release and post-release supervision. These fees are waivable based upon a showing
of indigence and unreasonable hardship.49 The rate of collection of these fees has been low since
the inception of the fee and has diminished over the years. The most recent data available shows
that in 1993 the collection rate was 10% but by 2001 it had dropped to 1%. For the period

46

Id.

47

7 NYCRR §§ 253.7(b), 254.7(b) (2004). This disciplinary surcharge is imposed for all but minor
infractions known as Tier II and Tier III infractions.
48

Anthony J. Annucci, Anatomy of the Modern Prisoners’ Rights Suit: New York’s Expanded Son of Sam
Law and Other Fiscal Measures to Deter Prisoners’ Suits While Satisfying Debts, 24 PACE L. REV. 631, 635
(2005)
49

N.Y. EXEC. LAW § 259-a (9) (a).

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October 2000 to September 2001 $179,498.00 was collected from the over 50,000 parolees
statewide.50
The low collection rate is likely due to the inability of parolees to pay. Yet, despite the
high rates of unemployment among parolees, less than 1% of supervision fees were waived for
indigence and thus remain as an unpaid obligation.51 Moreover, the failure to pay the
supervision fee can be used as a reason to deny a person’s application for a Certificate of Relief
from Disabilities or a Certificate of Good Conduct52, documents that can be helpful to formerly
incarerated people seeking employment. In this way, financial penalties for people on parole
actually can become an additional deterrent to their ability to achieve gainful employment.
Paying on Probation
In contrast to the low rate of collection of parole supervision fees, some counties have
found the collection of probation supervision fees to be a “revenue enhancement” worthy of
vigorous pursuit. For example, in 1999 alone, Onondaga County collected over $356,000.00 in
total probation fee revenues. Of that total, $212,000.00 was collected for non-DWI probation
supervision fees ($171,072.00) and alcohol/drug testing ($41,136.00).53 Onondaga County
started collecting these fees on December 1, 1996 based upon the passage of Local Law 10 of
1996 and continues collecting to this day. 54 In 2002, the Suffolk County Probation Department
collected $1,165,242.71 in administrative fees from probationers that included $981,722.71 in

50

Division of Parole Briefing Book FY 2000-01.

51

Id.

52

Form 6001 which is the Notice Regarding Supervision Fees is on file with the authors.

53

See Onondaga County Probation Department 1999 Annual Report. As previously noted, New York State
Law does not authorize the collection of such fees.

54

If the rate of collection of fees remained constant between 1997 through 2006, Onondaga would have
collected over $2.1 million in unauthorized fees from its probationers.

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supervision fees, $59,999.00 for drug testing and $123,530.00 from fees levied for pre-sentence
investigation fees.55
Paying from Bail Funds
In any case where cash bail has been posted by the defendant as the principal and is not
forfeited or assigned, the court may order that the bail be applied towards payment of any order
of restitution or reparation or fine.56
VII. ENDURING LIABILITIES: CONSEQUENCES OF NON-PAYMENT
A defendant who fails to pay the mandatory surcharge, sex offender registration fee, or
DNA databank fee,57 or fails to pay a fine, restitution, or reparation58 faces possible
incarceration, or additional incarceration. However, provision is made in C.P.L. § 420.10(5) for
a defendant to challenge the incarceration based upon the inability to pay and few people have
been imprisonened for non-payment. The enduring consequences of non-payment are those
associated with civil judgments and credit reports.
People sentenced to serve less than 60 days in jail face a court summons if they fail to
pay certain financial penalties within 60 days of the date of their imposition.59 The collection

55

See Suffolk County Probation Department 2002 Annual Report. These collection of fees continued despite
previously-cited 2003 opinion by the New York State Attorney General concluding that the state had preempted the
collection of these fees and that a county may not collect such fees for probation services.
N.Y. CRIM. PROC. LAW § 420.10(1)(e). Because the provisions of Criminal Procedure Law §420.10 are
made applicable to a mandatory surcharge, sex offender fee, DNA databank fee, and crime victim asistance fee by
56

C.P.L. §420.35(1), some courts have assumed that these charges can also be collected from the defendant’s cash
bail.
57

Id. § 420.35(1).

58

Id. § 420.10(3).

59

These include the mandatory surcharge, sex offender registration fee, DNA databank fee, crime victim
assistance fee, or supplemental sex offender victim fee. Town and village courts may, but are not obligated to issue
a summons. All other courts are required to do so.

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remedies the court may use upon the appearance required by the summons include garnishment
of wages and seizure of bank accounts and property.60 As described above, money from the
“inmate’s fund” and earnings are collected from defendants sentenced to more than 60 days
incarceration.61 Civil collection remedies may also be enforced against the amount owed for any
fine, fees, surcharge or restitution order as they become judgments and subject to civil collection
through application of C.P.L. § 420.10(6).62 So too are they enforceable against the probation
supervision fee.63
Payment of financial penalties may be deferred when a defendant can prove that he or she
is unable to pay financial penalties due to indigence or proof that such payment will work an
unreasonable hardship on the person or his or her immediate family.64 However, even if
deferred, the amount owed must be entered in an order, and becomes a judgment.65

60

The collection remedies that may be used by the court upon the appearance when payment has not been
made for any of the fees, except, apparently the supplemental sex offender victim fee, are provided in C.P.L.
§§ 420.10, 420.40 and 430.20 which are made applicable by C.P.L. § 420.35(1). The supplemental sex offender
victim fee is not included in C.P.L. § 420.35(1).
61

N.Y. PENAL LAW § 60.35(5).

62

The procedures for reducing all of the above financial penalties to judgment are set forth in N.Y. Criminal
Procedure Law § 420.10(6). The court issues an order containing the amount to be paid by the defendant. The
court’s order must direct the district attorney to file a certified copy of such order with the county clerk. The order
must then be entered by the county clerk in the same manner as a judgment in a civil case. The entered order is
deemed to constitute a judgment-roll and immediately after entry of the order the county clerk must docket the
entered order as a money judgment pursuant to CPLR § 5018. The amount owed for any mandatory surcharge, sex
offender registration fee, DNA databank fee, and a crime victim assistance fee imposed pursuant to Penal Law §
60.35(1) (which would appear to exclude the new $1,000.00 supplemental sex offender victim fee), Vehicle and
Traffic Law § 385(20-a) and § 401(19-a), or a mandatory surcharge imposed pursuant to Vehicle and Traffic Law §
1809 or § 27.12 of the Parks, Recreational and Historic Preservation Law also become a judgment subject to civil
collection. C.P.L. § 420.35(1) makes the provisions of C.P.L. § 420.10(6) applicable to create civil judgment status
for these debts.
63
64

N.Y. EXECUTIVE LAW § 257-c(2)
N.Y. CRIM. PROC. LAW § 420.40

65

This is required by a procedure set forth in C.P.L. § 420.40(5) that tracks the language of C.P.L.
§ 420.10(6).

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As of 2004, by legislative prohibition, under no circumstances can the mandatory
surcharge, sex offender registration fee, DNA databank fee, or the crime victim assistance fee be
waived by the judge.66
Bankruptcy, the means for people to start over with a clean financial slate, is not
applicable to debts incurred through financial penalties.67 These penalties will remain on their
credit reports until they are able to make payment in full. Thus, the civil judgments that arise as
a result of the imposition of fines, fees and surcharges may well have the most long-lasting
effects of any portion of the sentence. Not only is such judgment subject to all civil collection
remedies, but it will also be reported on any credit report, undermining a person’s ability to apply
for a credit card, loan or mortgage. These judgments are increasingly likely to adversely affect
any prospects for employment. Employers are expanding the use of credit histories to screen out
job applicants.68 There are a wide range of jobs that now require credit checks including
positions that involve access to money, from fast food cashiers to chief financial officers. Jobs
with government contracts and jobs that permit people to enter homes, whether to exterminate
bugs, shampoo rugs, or care for the elderly, increasingly use credit checks. Lewis Maltby,
president of National Workrights Institute, sums up the effects of the proliferation of the use of
credit reports. “The bottom line is that a bad credit report can cost you a job no matter how

66

N.Y. CRIM. PROC. LAW § 420.35(2). The only exception that is made in that subdivision is that a court
may waive the crime victim assistance fee if such defendant is eligible for youthful offender adjudication and the
imposition of such fee would work an unreasonable hardship on the defendant, his or her family, or any other person
who is dependent on such defendant for financial support.
67

11 U.S.C. §§ 523(a)(7), 523(a)(13).

68

In 1996, 19 percent of employers ran credit checks, however, by 2003, that figured had increased to 35
percent. Susan R. Hobbs, Daily Labor Report, THE BUREAU OF NATIONAL AFFAIRS, INC., May 3, 2004, at No. 84,
S-7-8.

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qualified you are.”69 Credit histories obtained from consumer reporting agencies contain
information about civil judgments, unpaid debts and often contain information about the
individual’s credit rating, criminal history, and employment history.70
VIII. NEW YORK STATE AND BEYOND: THE EXPLOSION OF FINANCIAL PENALTIES
It is beyond argument that the allure of financial penalties is difficult to resist. They
appear to promise a revenue bonanza. New and imaginative fees surface at all levels of
government along with coercive collection methods that are counterproductive to reintegration.
In the State of Washington a bevy of fees await anyone convicted of a crime. Among the
most imaginative is a fee to buy a $15.00 a week insurance policy for any person sentenced to
community service. More disturbing is the State of Washington’s efforts to condition the reenfranchisement for those who have lost the right to vote on the payment of all legal financial
obligations.71 On March 27, 2006 a Superior Court Judge for the State of Washington struck
down that statute as violative of the Equal Protection Clause of the 14th Amendment to the U.S.
Constitution.72 That case is now on appeal to the Supreme Court of the State of Washington.
According to the Brennan Center for Justice at NYU School of Law the State of Washington is
not alone in requiring the right to vote to payment of financial penalties. Ten states explicitly

69

Jennifer Bayot, Use of Credit Reports Grows in Screening Job Applicants, N.Y. TIMES, Mar. 28, 2004, at 1.

70

Consumer reporting agencies are regulated by the New York Fair Credit Reporting Act (N.Y. General
Business Law § 380) and the Federal Fair Credit Reporting Act (15 U.S.C. § 1681). A consumer reporting agency is
authorized to furnish a consumer report for employment to prospective employers.
71
72

Adam Liptak, New York Times, February 23, 2006.
Madison v. State of Washington, No. 04-2-33414-4 SEA, an unreported case.

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condition the right to vote on the full payment of fines, fees, restitution, and other costs
associated with a conviction.73
The idea of charging people money for room and board during the time that they are in
custody has taken hold all over the country. For years, the Sheriff of Clinch County Georgia had
been charging room and board to people held in the jail awaiting trial without any statutory
authority to do so. That practice was recently put to an end by a civil rights law suit brought by
the Southern Center for Human Rights and the law firm of King & Spaulding. By a consent
decree in that case the Sheriff will repay all fees collected during a four year period.74
In Nassau County, New York we find the same practice of seeking reimbursement for
“incarceration costs” from persons confined pre-trial or post-trial for room, board, medical
expenses and educational expenses. Nassau County also requires reimbursement for
“investigatory costs.”75
On the federal level, a recent memo issued on May 24, 2006 from the Administrative
Office of the United States Courts, including a chart of costs for imprisonment, community
corrections centers, supervision by probation officers, supervision by pretrial services officers,
and pretrial dention services, urged probation officers to begin to reference the updated costs in
their presentence reports, to assist judges to impose fines that consider the expected costs to the
government.76
73

See Brennan Center’s policy brief, Restoring Voting Rights to People with Criminal Convictions, available
at http://www.brennancenter.org/dynamic/subpages/download_file_38482.pdf.
74

Williams v. Clinch County, 7:04-CV-124-HL, filed in the United States District Court for the Middle
District of Georgia.
75

Nassau County Local Law Title 21 and 21-A. “Investigatory costs” are defined in the local law to mean all
actual costs incurred by the County of Nassau, its agencies and departments in obtaining a conviction against a
person for a violation of a Nassau County local law or ordinance.
76

Memo on file with authors.

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In 27 jurisdictions (24 states and 3 counties) in the U.S. up-front fees for indigent defense
are imposed. These fees, which range from $10.00 to over $200.00, are part of an increasingly
popular movement to require criminal defendants to defray the criminal justice system costs.77
The fees are charged automatically to criminal defendants who, despite their demonstrated
poverty, are expected to pay, often without regard for the outcome of their case.78 In the State of
Minnesota, the fees are subject to the Revenue Recapture Act, allowing the state to garnish
wages, seize property, file adverse credit reports, and impound vehicles.79
In Colorado we find the use of a “booking fee” and “house release program charge,”80
and in Texas we find an array of unusual fees including an “arrest fee,” “warrant fee,” “failure to
appear fee,” “time payment fee,” “restitution installment fee,” and “judicial fund court cost.”81
As recently as January 13, 2007 a new financial penalty surfaced. Massachusetts
Governor Deval Patrick proposed a so-called “safety fee” to be imposed on every person
convicted of a crime. Unrelated to any corrections or supervision purpose, the “safety fee” was
proposed to help pay for half of the estimated $20 million cost to hire an additional 250 police
officers in the new fiscal year.82

77

Ronald W. Wright and Wayne A. Logan, The Political Economy of Up-front Fees for Indigent Criminal
Defense, 47 WILLIAM AND MARY L. REV. 2045 (2006).
78
79

Id.
Id. at page 2053.

80

Information available from the Alamosa County Jail at
http://www.alamosacounty.org/depts/Jail/index.html.
81

See Sunset Advisory Commission, Texas Department of Criminal Justice, Staff Report, October 2006
available at http://www.sunset.state.tx.us/80threports/tdcj/tdcj.pdf.
82

Michael Levenson, The Boston Globe, January 14, 2007.

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Government at all levels has found it extremely difficult to exercise restraint when it
comes to the temptation to generate revenue through the use of financial penalties and fees. The
need to exercise restraint in the creation and imposition of financial penalties was recognized by
Justice Scalia when he expressed concern that financial penalties, uniquely of all punishments,
would be imposed out of accord with appropriate penal goals. “Imprisonment, corporal
punishment, and even capital punishment cost a State money; fines are a source of revenue. As
we have recognized in the context of other constitutional provisions, it makes sense to scrutinize
governmental action more closely when the State stands to benefit.”83
IX. POLICY CONSIDERATIONS AND RECOMMENDATIONS
There are multiple and sometimes conflicting public goals inherent in the use of financial
penalties. On the one hand, revenues from these penalties are used to defray some of the cost of
maintaining the criminal justice system by placing that burden on people who have been
convicted of criminal offenses. On the other hand, there is public interest in developing policies
and practices that promote the successful reintegration of people returning to their communities
from prison. Striking a balance between these two goals can only be accomplished after careful
consideration of the policy issues at stake and a clear understanding about who is being asked to
shoulder this financial burden.
From a public policy perspective, the overwhelming financial burdens imposed by the
cumulative range of financial penalties will undermine public safety if individuals burdened with
these fees are induced to commit new crimes or simply abscond from supervision under the
pressure of collection efforts. There are also public policy implications associated with the
shifting of financial support for probation, parole, prisons, courts or other agencies from
83

Harmelin v. Michigan, 501 U.S. 957, 979 n.9 (1991)

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government and the general taxpaying public to a small segment of the population. This
becomes even more problematic when that segment has marginal political efficacy by virtue of
statutes and regulations that disenfranchise people who have been convicted of felonies. Finally,
the use of financial penalties to fill budget gaps produces an inducement to engage in netwidening. If tax levy revenue is not available to support the costs of the criminal justice system,
state and local governments will become more dependent upon the financial penalties and will be
enticed to pull more people into the web of financial penalties for longer periods of time 84 and
expand the types of fees imposed.
Financial penalties certainly have a place in a continuum of sanctions. Few would argue
with the value of restitution, not only as a means to make reparation to the victim, but also as a
means for one to take responsibility for one’s actions. However, it makes little sense to develop
and apply financial penalties in an ad hoc fashion without considering the cumulative impact on
the people who will be required to pay. While some of these penalties have provisions for
indigency, there does not seem to be adequate oversight to ensure that defendants and formerly
incarcerated people understand their rights or that the various administrative entities that are
responsible for collection properly recognize indigent status.
There is a dire need to shift public policy regarding the use and abuse of financial
penalties. In a report recently issued by the New York State Bar Association Special Committee
on Collateral Consequences of Criminal Proceedings, Re-Entry and Reintegration: The Road to
Public Safety three specific recommendations were made and ten additional issues were

84

See American Probation and Parole Association Report, “Supervision Fees,” available online at www.appanet.org/about%20appa/supervis.htm.

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addressed to give direction to this much needed change in policy. 85 These are attached to this
paper as Appendix A.
We would add several recommendations to help introduce some rationality to the use of
financial penalties:
•

Jurisdictions should develop a comprehensive inventory of what financial penalties exist
and how they overlap.

•

Provisions that exempt indigent people from certain penalties and the implementation of
these provisions should be reviewed and clarified.

•

States should prohibit the enactment of local laws that impose additional financial
obligations on individuals as a result of a criminal conviction.

Other reforms are more complex but are equally, if not more, important. There needs to be
more careful consideration of the larger policy implications of allowing financial penalties to
supplant tax revenues. There needs to be a careful investigation of what monies are collected
and how they are used. There must also be a thoughtful debate about the unfettered access to
credit ratings and arrest histories that appear to undermine privacy rights and offer a back door
opportunity for employers to gain information about one’s criminal history.
X. CONCLUSION
Over the past decade we have become increasing aware of the challenges faced by people
reentering the community from prison and the challenges faced by communities and families
receiving formerly incarcerated people. We know that the numbers of people returning home are

85

See New York State Bar Association Report and Recommendations of the Special Committee on
Collateral Consequences of Criminal Proceedings, Re-Entry and Reintegration: The Road to Public Safety which
can be reviewed at http://www.nysba.org/MSTemplacte.cfm?MicrositeID=100. The three specific
recommendations are found at pages 415-417 and the discussion of the ten suggestions for possible reform is found
at pages 211-214. At the November 4, 2006 meeting of the New York State Bar House of Delegates the Report was
approved and the recommendations of the committee adopted, except for the recommendation relating to the accrual
of child support.

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staggering and we also know that the challenges they face are daunting.86 The hurdles to
reintegration caused by the financial consequences of criminal convictions are among the least
recognized but may have some of the most far reaching impacts.
It is time to confront our attraction to financial penalties head on. We need to deemphasize the goals of “revenue enhancement,” “cost-shifting” and “user-fees” and focus on
stimulating, encouraging, and improving the chances for people returning from having served
their sentence to live law-abiding, fulfilling and productive lives. Public safety is a community
goal and a public good. As such, the cost should be borne by the public and not shifted to those
who can least afford these financial burdens.
With its recent legislation that requires a court to take into consideration the goal of
community reintegration when considering the appropriate sentence,87 New York State is in a
position to provide national leadership in halting the chaotic and counterproductive use of
financial penalties. The rationale for doing so has been well articulated in terms of cost-benefit,
public safety and in human terms.
Effective re-entry policies are also cost-effective. With incarceration costing
more than $30,000 per person per year, in Fiscal Year 2004-2005 New York State
spent approximately 2.4 billion on corrections. Helping formerly incarcerated
people become productive, law-abiding, tax-paying and gainfully employed
citizens can yield significant, long-term cost-savings. Cost-savings would be
evident across a wide range of government programs, including welfare and child
support. A successfully reintegrated former offender would avoid entering the
welfare system and be in a better position to meet child support obligations. For

86

Jeremy Travis, BUT THEY ALL COME BACK: FACING THE CHALLENGES OF PRISONER
REENTY 87 (2005)
87

The recent amendment to N.Y. PENAL LAW § 1.05(6) added “the promotion of their successful and
productive reentry and reintegration back into society” as a sentencing goal, reflecting the growing awareness of
reentry.

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former offenders who successfully transition home, there is also an immeasurable
benefit for the children and families with whom they reunite.88
Clearly there are both personal and societal benefits for people to return home from
prison unencumbered by financial penalties, as they begin to reintegrate into a productive life.
Promoting successful re-entry and reintegration will increase the chances that a
person with a criminal record can become a productive member of society and
will decrease recidivism rates, making us all safer.89
It is simply not good public policy to impose financial penalties on people who live
below the poverty line. With so many barriers to overcome in order to reintegrate back into the
community, creating additional financial hurdles is neither cost-effective nor is it in society’s
best interest.90 The limited and short-sighted revenue producing effects of financial penalties
pale in comparison to the long-term cost savings and promotion of public safety that can be
realized by smart reentry policies.

88

Statement of Janet Fiore, Westchester County District Attorney, on the announcement of the Westchester
County Reentry Task Force. Available at http://www.da.westchester.ny.us/Reentry%20Task%20Force.doc.

89

See supra note 85 New York State Bar Special Committee Report, Re-Entry and Reintegration: The Road
to Public Safety at 443. Available at http://www.nysba.org/MSTemplacte.cfm?MicrositeID=100
90

Id. at 416, 417.

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APPENDIX A

RECOMMENDATIONS FROM REPORT AND RECOMMENDATIONS OF THE
SPECIAL COMMITTEE ON COLLATERAL CONSEQUENCES OF CRIMINAL
PROCEEDINGS, RE-ENTRY AND REINTEGRATION: THE ROAD TO PUBLIC

SAFETY

I.

FINANCIAL CONSEQUENCES
A.

CONSOLIDATE ALL FINANCIAL PENALTIES INTO ONE FEE

There is a wide array of financial penalties imposed as a result of criminal convictions,
including fines, fees, costs, penalties, surcharges, and assessments. The use of financial penalties
has continued to grow over the years. New financial penalties are seemingly added at each
legislative session. Many of these financial penalties have been increased several times over the
years and are often viewed by the legislature in isolation from all other financial penalties that a
person convicted of an offense must pay.
These financial penalties are scattered throughout various statutes and are not
consolidated in any one place. Consequently it is difficult to assess the total impact of such
financial penalties on an individual or his family. When such financial penalties are totaled, their
sum is at times staggering.
In light of the fact that the vast majority of people who are processed through the criminal
justice system are, as previously discussed, indigent, the impact of the penalties is all the more
burdensome, and actual collection of such penalties is problematic at best.
The stated purposes of such financial penalties, be it punishment, reparation, cost
recovery, revenue production, or cost shifting, are outweighed by the heavy financial burden

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placed on the individual and his or her family as they try to reintegrate back into the community.
Financial resources that could assist with the cost of housing, food, and family support are
typically meager at the time of the individual’s return from prison so that almost any financial
penalty is a devastating setback to the re-entry process.
Consolidating all of the financial penalties into one moderate fee will serve several
purposes. First, it will promote the efficiency of actual collection of such revenue. Second, it
will ameliorate the impact that such financial penalties have on re-entry and reintegration and
protect people from being overburdened, both directly and indirectly, by financial penalties.
Third, it will make transparent for the legislature, the public, and the individual what financial
penalties are actually being imposed. Further, it will increase the ability of judges, prosecutors,
and defense counsel to review the financial consequences both in advising the defendant and in
weighing the total effect of the penalties to be imposed at sentencing.
Although the decrease in total financial penalties implies a decrease in revenues, that may
not be so. A portion of the financial penalties imposed are never collected. A moderation in fees
would increase the likelihood of collection. Further, if reintegration is promoted by a moderation
in financial penalties, the decrease in long-term costs that are related to recidivism would more
than offset any decline in revenues. There would be no cost to implement this recommendation.
Thus, the Committee recommends that all of the financial penalties, including fines, fees,
surcharges, penalties, assessments and costs, be consolidated into one moderate fee schedule.
The schedule would set a separate fee for felonies, misdemeanors, and violations. To account for
differing abilities to pay, the schedule would set one level of fees for defendants who financially
qualify for public defense, and a second level of fees for those who have not.

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Restitution, which serves a direct reparative purpose, is not included in the consolidated
fee. However, in the event that the amount of restitution ordered to be paid by a judge exceeds
the consolidated fee that would otherwise be imposed on the individual, the fee is waived.91
B.

AMEND C.P.L. § 420.35(2) TO ALLOW FOR WAIVER OF CERTAIN
FINANCIAL PENALTIES

Imposing financial penalties on people who live below the poverty level is simply not
good public policy. As noted in the earlier discussion profiling who is subjected to these
financial penalties, they are disproportionately black and Hispanic, poor, with serious social and
medical problems, largely uneducated, unskilled, suffering mental illness, without solid family
supports, they have minimal prospects for employment, and upon release from incarceration
have the added stigma of a prison record and face the distrust and fear that it inevitably carries
with it.
With so many barriers to overcome to reintegrate into the community, creating additional
financial barriers is neither cost effective nor in society’s best interest. In addition, there would
be no cost to implement this change.
Thus, the Committee recommends that C.P.L. § 420.35 be amended to allow for the
waiver of certain financial penalties based upon the inability of the individual to pay. Such an
amendment would provide judicial discretion to waive the surcharges and all of the attendant
fees that would otherwise be imposed at the time of sentencing for anyone sentenced to
incarceration, and for any person who demonstrates to the Court’s satisfaction, at the time of

91

Current law provides that if restitution is made, such person shall not be required to pay a mandatory
surcharge or a crime victim fee. See N.Y. PENAL LAW § 60.35(6) and N.Y. VEH. & TRAF. LAW § 1809(6). This
consolidated fee shall not affect or prevent forfeiture of assets.

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sentencing, that such fees and surcharges would create a financial hardship on the individual or
his or her family.92
C.

IMPOSE A MORATORIUM ON ALL NEW FINANCIAL PENALTIES AND THE
INCREASE OF EXISTING PENALTIES, AND CONSIDER THE FILING OF A
RE-ENTRY IMPACT STATEMENT FOR ANY NEW LEGISLATION IMPOSING
FINANCIAL PENALTIES

The closer one looks at the issue of re-entry, the more one becomes aware of the
obstacles, both visible and invisible, that are faced by people returning home after serving the
penalty of imprisonment. Our current recidivism rate, which is, according to the Bureau of
Justice Statistics, as high as 67%, serves as a reminder that wholesale reintegration presents a
formidable challenge. If the lofty goal of reintegration is to be realized, we must, as a society,
give more meticulous attention and thoughtful analysis to the impact that public policies have on
re-entry.
The cost of careful analysis is quite minimal when weighed against the cost of human
lives who suffer under the weight of the unintended consequences of our latest legislative
initiatives designed to balance the budget and demonstrate a “tough on crime” posture.
Thus, the Committee recommends imposing a moratorium on all new financial penalties
and also on the increase of existing financial penalties until the issue can be considered and
studied by a legislative Committee. The requirement of filing a re-entry impact statement should
be considered for any new legislation that imposes financial penalties.93

92

This recommendation is offered for adoption both in conjunction with the preceding recommendation and
as an independent recommendation.
93

The requirement of the filing of a reentry impact statement for any new legislation that imposes financial
penalties is related to the Committee’s general recommendation that all new legislation that may cause collateral
consequences of a criminal conviction require the filing of a reentry impact statement.

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Suggested Legislative Reform – From Report and Recommendations of the Special
Committee on Collateral Consequences of Criminal Proceedings, Re-Entry and
Reintegration: The Road to Public Safety.
a.

Consolidate all financial penalties into one fee

All of the financial fines, fees, surcharges, penalties and assessments should be
consolidated into one fee schedule. That schedule should be based upon a sliding scale adjusted
for an individual’s ability to pay. The fee would be moderate, set with a realistic ability to pay in
mind. Waivers for indigency would be made readily available.
b.

Amend C.P.L. § 420.35(2) to allow for waiver of certain
financial penalties

Amend Criminal Procedure Law § 420.35(2) to allow for the discretionary waiver of the
mandatory surcharge, sex offender registration fee, DNA databank fee, and the crime victim
assistance fee for anyone sentenced to incarceration, and for any defendant who demonstrates to
the court’s satisfaction, at the time of sentencing, that such fees and surcharges will create a
financial hardship.
c.

Impose a moratorium on all new financial penalties and the
increase of existing ones

A moratorium on any new financial penalties or the increase of existing financial
penalties should be imposed until the impact of the financial burden on re-entry can be studied.
d.

Repeal the supervision fees imposed pursuant to Executive
Law § 259-a (9) (a) and § 257-c

The parole supervision fees authorized by Executive Law § 259-a (9)(a) and the
probation supervision fees authorized by Executive Law § 257-c could be repealed. In the
alternative, a more effective and expanded use of waivers of supervision fees for indigency could

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be implemented. Although these waivers already exist in New York for both parole and
probation supervision fees, they are seldom used.
e.

Prohibit the reference to any judgment that is the result of a
financial penalty arising from a criminal conviction in a credit
history report

The judgments that result from the non-payment of certain financial penalties arising
from a criminal conviction including fines, restitution or reparation, mandatory surcharge, sex
offender fee, DNA databank fee, and crime victim assistance fee unduly prejudice and inhibit
employment efforts when employers review the credit histories of prospective employees and
become aware of the judgments arising from criminal financial penalty. Limited purpose is
served by allowing employers to screen out prospective employees based upon a judgment
arising from a criminal financial penalty. Conversely, the additional barrier to employment that
this practice creates runs contrary to the public policy of this state to encourage the employment
of persons previously convicted of one or more criminal offenses.94
f.

Consider the filing of a re-entry impact statement for any new
legislation imposing financial penalties

The legislature should engage in careful study and analysis before they impose new
penalties. Because most new fines, fees, and surcharges are imposed in a vacuum, unrelated to
all of the other consequences that may be imposed, a re-entry impact statement should be
considered for any legislation proposing new financial penalties or the increase of existing
penalties. Such an impact statement would require the legislature to look at all of the financial
consequences that are already connected to this particular conviction before imposing any new or
additional ones. It would also require an analysis of how the new or increased financial penalty
would affect reintegration.
94

See N.Y. CORRECT. LAW § 753(1)(a).

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g.

Prohibit retaliation for failure to pay financial penalty

Prohibit the use of a person’s failure to pay a financial penalty, correctional user fee, or
supervision fee, as a basis to deny the issuance of a Certificate of Relief from Disability, or a
Certificate of Good Conduct, or to refuse discharge from supervision while on parole,
conditional release, or post-release supervision when otherwise qualified, in those instances
when such non-payment is due to indigence or a legitimate inability to pay.
h.

Consolidate all financial penalties into one article in the Penal
Law

Consolidating all financial penalties into one article in the Penal Law will serve two
purposes. First, it will provide ease of access for defense counsel, prosecutors, and judges. No
longer will they have to search through a scattered array of statutes in order to familiarize
themselves with the financial penalties to be imposed in each case. This will also enhance the
ability of defense counsel to be able to discuss the collateral consequences of the conviction with
his or her client as required by professional standards.95 Second, it will ensure that the
legislature can efficiently be able to assess the sum of all penalties already imposed as a result of
a criminal conviction, when considering the imposition of new or increased financial penalties.
This recommendation is consistent with the argument set forth by Jeremy Travis that
these invisible punishments should be brought into open view. They should be made visible as
critical elements of the sentence, and they should be openly included in our debates over

95

See National Legal Aid and Defender Association Performance Guidelines for Criminal Defense
Representation, Guideline 8.2 and 6.2 (3d printing, 2001); American Bar Association Standards for Criminal Justice:
Prosecution Function and Defense Function, Standard 14-3.2 (3d ed. 1993); Standards for Providing
Constitutionally and Statutorily Mandated Legal Representation in New York State, adopted by the Chief Defenders
of New York State, Standard VII, Duties of Counsel (July 25, 2004).

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punishment policy, incorporated in our sentencing jurisprudence, and subjected to rigorous
research and evaluation.96
i.

Require disclosure to defendant prior to plea

Both defense counsel and the judge should review with the defendant, all of the financial
penalties that will result from the conviction, prior to the time a plea of guilty is entered
j.

Provide comprehensive training for defense counsel, judges,
and prosecutors about the financial consequences of criminal
convictions

It is not unusual for a defendant to find out after the plea has been entered and the
sentence imposed, that there are many financial penalties for which he or she will be held
responsible. Similarly, defense counsel, judges, and prosecutors rarely have a full appreciation
of the extent of the financial penalties that will end up being part of the sentence. Training, in
this regard, will serve the dual purpose of ensuring that both defense counsel and judges will be
familiar with the financial consequences of a conviction so that they can explain them to the
defendant. This training will also foster a much greater understanding and appreciation for the
fact that the sentence needs to take into account the “invisible punishments” that a defendant
faces in addition to the sentence placed on the record in the courtroom.

96

See generally Marc Mauer & Meda Chesney-Lind, INVISIBLE PUNISHMENT (2002).

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