Where you live in Indiana can determine levels of legal fines and fees

David E. Boggs was arrested for possession of marijuana in Tippecanoe County in 2020. Three months later he was arrested again for drug possession and jailed in neighboring Clinton County, where inmates can be charged a “pay-to-stay” fee for their time in jail. 

The fee was $8 a day, and by his release on April 15, 2021, Boggs racked up a jail bill of $1720.52 on top of the typical court fees for each case. Yet his troubles started for possession of a drug that is legal just 60 miles to the west.

An attorney for Clinton County said that in the end, Boggs actually only paid $40 and owes nothing more. But there’s no guarantee everyone would get such a break.

Mark Delgado, now the White County prosecutor, formerly served as a defense attorney in Clinton County. Delgado said jail fees were “throwing good money after bad” because most of his clients were indigent and could not pay their fees.

“It might be something feel-good you can tell taxpayers, but it doesn’t mean much if you can’t collect anything,” Delgado said.

Indiana allows county jails to charge up to $30 a day for staying there. In 2014, the Brennan Center for Justice found that at least 43 states authorized room and board fees in either state or county correctional facilities, though the fee amounts vary widely in each locality or state. Critics nationwide are opposed to this policy because they say it criminalizes poverty by siphoning money from those who are already poor and recalls the debtor’s prisons of America’s past.

Sheriff Rich Kelly led the charge in establishing Clinton county jail’s daily fee for inmates. He did not respond to multiple requests for comment, but in 2019 when the charge was implemented, he told WTTV Indianapolis the fee was a deterrent.

“Taking care of this facility has been on the backs of taxpayers,” he told WTTV. “If it deterred one person from making a bad decision then it is worth it to me.”

Although “pay-to-stay” is widespread across America, it is rare in Indiana. Still, people stuck in Indiana’s legal system can be charged a dizzying range of fees at every stage: pre-trial through bail or electronic monitoring, at sentencing through $189 court fees and punitive fines, and post-trial through involuntary program fees in parole and probation.

The amounts charged are not insubstantial. According to a report from the Brennan Center in 2019, about 10 million people nationwide owe an estimated $50 billion in legal financial obligations. In Indiana, court revenue from fines and fees in 2022 amounted to $137 million, money the justice system in Indiana has come to rely on to function. 

A two-month investigation for the Indianapolis Star by students in the University of Notre Dame’s Gallivan Program in Journalism, Ethics, and Democracy found that courts throughout Indiana charge considerable amounts of money to people who struggle to pay these legal financial obligations. Courts are supposed to hold “ability to pay” hearings to determine if fees should be waived for the indigent, but the investigation found wide discrepancies in how these decisions are made and how much is charged from judge to judge and from county to county.

For example, average charges in the juvenile justice system can range from just $57 in Marion County to $4,087 in Perry County. 

One man got drunk and turned himself into the jail to avoid paying unaffordable probation fees in LaPorte County, where revenue from electronic monitoring is more than Marion County despite having one-eighth the population. 

One Lawrence County woman was ordered to pay $20 per month on a charge of $8,363, even though it would take her nearly 35 years to pay off her bill. 

Yet there are few advocates calling for reform in Indiana. Asher Waite-Jones, an attorney with the Indiana Legal Services who works on expungements, is one of those lone voices. He said fees work like a tax on individuals within the criminal legal system.

“Fees are assessed as ways to raise revenue,” he said. “I sometimes use the term regressive taxation because they are essentially a user fee — a tax — on a person in the criminal legal system to recoup the cost of providing services. We’re shifting the costs of the criminal legal system from taxpayers to defendants who we know in the state of Indiana are almost all poor and are disproportionately people of color.”

However, advocates nationwide ranging from judges and sociologists and from the ACLU to the Fines and Fees Justice Center are leading efforts to rein in these charges. Last April, even the U.S. Department of Justice addressed the issue in a letter that encouraged reforms.

“The unfettered imposition of fines and fees across the country has entrapped poor people, too many of whom are people of color, in a cycle of escalating debt, unnecessary incarceration and debilitating entanglement in our justice system,” said Assistant Attorney General Kristen Clarke of the department’s Civil Rights Division. “By confronting the harms that can result from aggressive imposition of fines and fees, we can bring an end to debtors’ prisons and promote equal justice for all.”

Wide array of potential fines and fees

For every criminal case in Indiana, a baseline fee of $189 is charged. This fee brought in more than $82 million dollars of state revenue in 2022.

The fee for a late payment in Indiana is $25, and the state collected more than $1.1 million in 2022 from late payment fees.

There can be more than 100 types of fees collected in Indiana, with each fee bringing in from $270 to nearly $50 million in court revenue. The manual of these fees runs to 44 pages.

The amount of revenue collected per case ranged from $303 in Jefferson County to $97 in Vigo County, suggesting that counties across Indiana do not charge fees equally. Marion County (Indianapolis, the largest system) collected $192 in court revenue per case.

How did we get here?

Even before banning “cruel and unusual punishment,” the eighth amendment of the constitution prevents lawmakers from charging “excessive” bail or fines. The roots of this clause can be traced back to 1215, when the Magna Carta guaranteed that no one in the English justice system would pay a fine disproportionate to their crime.

In 1983, the Supreme Court ruled in Bearden v. Georgia that courts must determine whether a defendant has the ability to pay, as opposed to willfully refusing to pay, before revoking probation for failure to pay a fine.

However, the fines and fees system is often difficult to understand. Some of that confusion comes from the difference between fines and fees.

Fines are imposed upon conviction and intended as deterrence and/or punishment. By contrast, fees are often intended to raise revenue.

“Often they are automatically imposed and bear no relation to the offense committed,” a 2019 Brennan Center report explains of fees.

Mirroring a national trend, the Indiana prison population more than quadrupled between 1980 and 2016. As of January 2019, there were 26,877 people in Indiana’s prisons, down from its peak in 2014 when 29,220 were imprisoned. The Prison Policy Initiative cites Indiana as the 15th highest incarceration rate in the U.S., outstripping the national rate for the U.S. and the rate for “virtually any independent democracy on earth.”

These high incarceration rates triggered a need for more revenue, which prompted state legislatures to raise fees to cover costs, especially if they were reluctant to raise taxes. In Indiana, court revenue from fines and fees was $67 million in 1988, before growing to $242 million in 2008 due to the rise of mass incarceration, and then finally dropping to $137 million in 2022, the last year available.

Waite-Jones, the ILS attorney, said some judges and prosecutors don’t make a distinction between fines and fees, which contributes to the burden placed on poor defendants.

“What I have seen is judges … collapse the fines and the fees, and say: ‘You’re asking for a waiver of fees and I just want to let you know, I don’t want your client to shirk accountability. And so I’m not going to waive that,’” Waite-Jones said. “I think it’s really important that we understand them by pulling them apart and saying, the fine is a kind of carceral deterrent. This is something that’s intended as punishment … But the fees, which almost every time are going to double, triple, quadruple to infinity the underlying fines, that’s not actually about punishment.”

The Department of Justice in 2015 published an investigation into the Ferguson, Missouri, police department following the fatal shooting of Michael Brown by police the previous year. The report found that city officials exhort police and court staff to deliver fee increases to boost revenue. The DOJ’s investigation garnered national attention around excessive fines and fees, including a recommendation that fees not account for more than 20% of local revenue.

St. Louis Post-Dispatch columnist Tony Messenger won a Pulitzer Prize in 2019 for his stories exposing “the injustice of forcing poor rural Missourians charged with misdemeanor crimes to pay unaffordable fines or be sent to jail,” including one about a woman who stole an $8 tube of mascara from a Walmart and amassed nearly $16,000 in legal financial obligations from her stay in prison. 

Also in 2019, the U.S. Supreme Court heard Timbs v. Indiana, in which Tyson Timbs sued the state in response to an attempt to forfeit Timbs’ Land Rover. Timbs had been charged with felony dealing for his transportation of heroin, a crime with a maximum statutory charge of $10,000. The Land Rover was worth over four times that and had been bought with money from an insurance policy after his father’s death.

The court sided with Timbs in an opinion authored by the late Justice Ginsburg, which argues that the forfeiture attempt violates the eighth amendment’s excessive fines clause. The opinion cites an amicus brief from the ACLU.

“Perhaps because they are politically easier to impose than generally applicable taxes, state and local governments nationwide increasingly depend heavily on fines and fees as a source of general revenue,” the brief reads. 

Ability to pay hearings

Indiana code § 33-37-2-3 states that courts must consider the defendant’s ability to pay when assessing restitution. Waite-Jones said that these “indigency hearings” take place when deciding whether or not a defendant should be assigned a public defender.

“As with any statute, it’s only as good as the implementation,” Waite-Jones said. “So I see sometimes an indigency determination will be made. The court will say we’re finding this person indigent, but all of the fines will still be assessed or all the fees will still be assessed.”

Because there is not typically an additional indigency hearing at the time of sentencing, when fines and fees are assessed, the defendant’s ability to pay can be ignored. Waite-Jones said he has seen bills that range from $4 to $2,000 when looking to pay fees for expungement cases.

One of Waite-Jones’ clients was arrested for shoplifting tools his employer required to work. He could not afford a lawyer because he was fired after the arrest. However, the judge determined that the client was not indigent because he previously held a job, denying him access to a public defender. The client pleaded guilty because he could not afford representation.

“That’s a very particular circumstance, but I think that’s some of the variation that you see across the state in terms of indigency determination,” Waite-Jones said. “The fees are different, I would say, county by county, but I would also say it can be different court by court.”            

A positive example of how indigency hearings are supposed to work was observed last May in St. Joseph County’s Superior Courthouse Two. 

Tiffany Estell Williams had been charged with driving while suspended with a known violation and prior conviction within the last 10 years. She spoke with a public defender about a $1,000 reinstatement fee to regain her license. 

Magistrate Judge Eric Tamashasky granted a waiver due to her indigent status. Estell Williams said that in her previous legal involvements, she had never seen a court do this.     

Consequences of not paying

In January 2013, Denise Zencka discovered exactly what can happen if the bills accumulated in the criminal justice process are not paid. Zencka returned to her home in Crown Point after a trip to her parents’ home in Florida to aid in the recovery of her recent battle with thyroid cancer. The Hoosier mother of three was unaware of and unable to attend court hearings about outstanding bills she incurred for her cancer treatments in Lake County.  

As reported by the ACLU, Zencka was arrested at her home in front of her three children, still clad in her pajamas.  Although she had filed for bankruptcy after being unable to work for four months, the warrant for Zencka’s arrest was filed over her absence in court.       

After being taken to the Lake County Jail, court documents state that Zencka was placed initially in a holding cell with several men. Afterward, she was told she was to be moved to a cell specifically for women and ordered to climb the stairs to this part of the jail. Worried about her blood pressure and history of heart issues, she said she was unable to climb the stairs, so she was moved to a men’s mental health unit of the facility.  

This was a glass-walled cell which exposed her to surrounding male inmates. Zencka said she was denied medicine and feminine hygiene products, verbally abused and experienced a litany of traumatic experiences, including a mentally ill male inmate smearing his feces across the glass wall they shared.   

Zencka filed a complaint in 2014 against Lake County and several unnamed police officers. The case ended in an undisclosed settlement in 2017.

National reform efforts

Brittany Friedman, a sociology professor at the University of Southern California, has tracked fines and fees nationwide, focusing specifically on pay-to-stay in Illinois and Connecticut. She argues that pay-to-stay is ineffective no matter where one falls on the political spectrum because it doesn’t even cover the cost of the system. 

Friedman also said that the monetary burden of the criminal justice system exacerbates traditional collateral consequences for a crime.

“Because when we traditionally think of collateral consequences, people did not actually think about fines and fees.  Normally, they were just thinking of the consequences of losing the right to vote or not being able to find employment or housing,” Friedman said. “But if you add the layer of monetary punishment to that, then you’re actually preventing intergenerational wealth because you’re using civil systems to seize property, to seize assets, to seize accounts.” 

While reforms to address these issues exist, they haven’t led to substantial changes in the Indiana justice system.

The Fines and Fees Justice Center (FFJC) has created a movement to get rid of criminal justice fines and fees and the devastation imposed on the lives of incarcerated individuals and their families. The FFJC has state campaigns in Florida, Nevada, New York, and New Mexico and believes it has “developed broad-based coalitions from across the political spectrum including grassroots organizations, judges, public defenders, prosecutors, legislators, law enforcement, and faith-based and advocacy organizations.” 

Reform efforts don’t all come from outsiders. According to a 2019 American Bar Association report, its Working Group on Building Public Trust in the American Justice System created “Ten Guidelines on Court Fines and Fees.”

A few reforms have taken place in other states. The California governor abolished juvenile detention fees, while Los Angeles got rid of $90 million in debt owed for those fees. Illinois made the imposition of fees more uniform across the state and expanded the availability of fee waivers for low-income parties.

In 2022, the National Center for Access to Justice (NCAJ) at Fordham Law school created a Fines and Fees Index. It assigned each state a score on a scale of 0 to 100 for the justice of its fines and fees legislation. No state received a passing score, and the state of Indiana received a 26/100 with a national rank of 33rd out of 50.

“Fines and fees can keep people in a cycle of poverty, causing people to lose their jobs, their homes, and sometimes their children,” the report said. 

Nichole Lynn Swoape illustrated the cycle perfectly during her visit to the Elkhart City Court last May. She was there for missing a court-ordered class, telling Judge Charles Grodnik she didn’t have the money to pay for it.

Swoape was arrested on a domestic battery charge in 2022, which was dismissed but alerted the court to a series of bad checks she wrote over three weeks in 2004. She owes $2,179 in fines and fees and has been paying $10 a week — a schedule that will take more than four years to pay off.

She walked with a limp to her truck, the bed filled with junk. She showed a receipt for how much she owed after her last payment.

“It’s hard, but I’ve been paying a little here and there,” Swoape said. “I have a truck and rent payment, and a 17-year-old. I don’t have a job. I’m on my own.”