For many criminal and traffic clients, a waiver of criminal court assessments may be the first stroke of luck they have with criminal courts (a “waiver” is when the Judge agrees to forgive or ignore some of your fees). The U.S. Census Bureau reveals that 12.1 percent of Illinoisians are experiencing poverty, which translates into roughly 1,552,506 individuals. During the first quarter of 2022 alone nearly 1.8 million individuals in Illinois had either a major or a minor traffic violation, which accounted for 73.4 percent of all new cases opened across all counties. However, in the State of Illinois, not all counties are created equally nor are their fee waivers.
The following information relates to when a Judge is allowed to eliminate some of these fees. If you need an experienced criminal/traffic attorney to explain any of the following technical information, feel free to call us at Mitchell S. Sexner & Associates LLC.
The Law About Waiving Criminal and Traffic Fees
Under the present assessment waiver statute contained in 725 ILCS 5/124A-20, only residents in counties with more than three million individuals are eligible to apply for a waiver of fee assessments when charged and convicted under any provision of the Illinois Vehicle Code (“IVC”). The only county in Illinois with a population of more than three million residents is Cook County, which leaves residents of the other 101 counties without recourse to fee waivers for violations of the Illinois Vehicle Code. This is set to change, however, after July 1, 2024, when the provision of subsection (a)(5) of 725 ILCS 5/124A-20, will sunset. The statute, in part, reads as follows:
As used in this Section:
“Assessments” means any costs imposed on a criminal defendant under Article 15 of the Criminal and Traffic Assessment Act but does not include violation of the Illinois Vehicle Code assessments except as provided in subsection (a-5).
(a-5) In a county having a population of more than 3,000,000, “assessments” means any costs imposed on a criminal defendant under Article 15 of the Criminal and Traffic Assessment Act, including violation of the Illinois Vehicle Code assessments. This subsection is inoperative on and after July 1, 2024.
725 ILCS 5/124A-20.
The contrarian position adopted by the State legislature leaves this statute vulnerable to challenges both as it currently stands and into the future. One such challenge may arise under the U.S. Constitution’s Equal Protection Clause.
Federal Equal Protection Clause Challenges
As it now stands, the United States Supreme Court won’t likely consider wealth or lack thereof to be considered a suspect class under 14th Amendment jurisprudence. In San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 32 (1973), the Supreme Court declined the invitation to recognize wealth discrimination as an adequate basis for invoking strict scrutiny. It is less than clear, however, if the United States Supreme Court has permanently foreclosed the issue on whether the poor are a suspect classification or not. As Professor Henry Rose points out, “language in one majority opinion of the Supreme Court indicates that the poor are a suspect class and classifications based on this status should receive strict scrutiny from the courts.” Professor Rose goes on to cite McDonald v. Bd. Of Election Comm’rs, 394 U.S. 802, 807 (1969), which held, “And a careful examination on our part is especially warranted where lines are drawn on the basis of wealth or race, two factors which would independently render a classification highly suspect and thereby demand a more exacting judicial scrutiny.”
While the debate over whether suspect classification belongs to the poor continues, it is unlikely there is even a rational basis for the distinction made by the Illinois legislature. A court, when applying the rational basis test, will determine if a statute is rationally related to a legitimate state interest. See United States v. Carolene Products Co., 304 U.S. 144, 153 n.4 (1938). Here, there seems no nexus between fee waivers and the number of individuals who reside in a county. Moreover, while the State may hold a legitimate interest in collecting criminal court assessments for varied programs, the State’s interest does not override considerations for indigent defendants facing fines ranging from twenty-five dollars for a petty offense to a twenty-five hundred dollar for a Class A traffic ticket.
Illinois and the U.S. Supreme Court
Here, Illinois once again takes center stage with the United States Supreme Court decision in Griffin v. Illinois, 351 U.S. 12 (1956). In Griffin, two defendants had been convicted of armed robbery and sought to appeal their case but could not afford a court transcript. The trial court denied defendants’ requests for free transcripts and the United States Supreme Court ruled that failure to provide a transcript free of charge violated defendant’s equal protection rights. As Professor Rose again points out, Justice Black “concluded that preventing poor defendants from seeking appellate review of their convictions because they could not afford to pay for transcripts violates due process and equal protection because the defendants are discriminated on account of their poverty.” The Griffin decision created a legal world where other matters such as filing fees were waived for indignant defendants, where an indignant defendant is entitled to free appellate counsel, and indignant defendants were entitled to a free transcript even when the violations were only punishable by a fine and not by jail time.
As Justice Black states in Griffin, “Surely no one would contend that either a State or the Federal Government could constitutionally provide that defendants unable to pay court costs in advance should be denied the right to plead not guilty or to defend themselves in court.” Similarly, no one would argue that a State or the Federal Government could predicate one’s obligation to pay court costs simply based on where they reside. The Illinois legislature’s decision to do so has no legitimate interest in making fee waivers the exclusive province of those who reside in Cook County.
The U.S. Supreme Court’s Fee Trilogy
The United States Supreme Court’s decision in Griffin was further developed by its decisions in Williams v. Illinois, 399 U.S. 235 (1970) and Tate v. Short, 401 U.S. 395 (1971). While the Court’s decision in Williams is narrow, holding “the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense must be the same for all defendants, irrespective of their economic status.” The Court goes further stating “the State is not powerless to enforce judgments against those financially unable to pay a fine; indeed, a different result would amount to inverse discrimination, since it would enable an indigent to avoid both the fine and imprisonment for nonpayment, whereas other defendants must always suffer one or the other conviction.” This logic is dubious, at best, but beyond the scope of this blog post. However, the Williams Court did hold “when the aggregate imprisonment exceeds the maximum period fixed by the state, and results directly from an involuntary nonpayment of a fine or court costs we are confronted with an impermissible discrimination that rests on ability to pay.” Here, the Court took its first step toward recognizing that impermissible discrimination can and often does rest on an individual’s ability to pay court fines.
In Tate v. Short, 401 U.S. 395 (1971) the petitioner had accumulated $425 of court fines on nine traffic convictions, was unable to pay the mandatory fines, and was sentenced to 85 days on a prison farm to work off his fine. The Court, citing Williams directly, reversed the Texas Appellate Court’s decision upholding petitioner’s prison farm sentence. The Court expanded on Williams finding that jailing an individual “in such a case is not imposed to further any penal objective of the State. It is imposed to augment the State’s revenues, but obviously does not serve that purpose; the defendant cannot pay, because he is indigent. . .” This same logic applies to the Illinois fee assessment as currently written – a fine is imposed to augment the State’s revenue or a municipality’s coffers – and cannot be collected from indigent individuals. Instead, the lack of assessment waivers leads to fines being held in collections or simply never being collected. Both Williams and Tate led to the United States Supreme Court’s holding in Bearden v. Georgia, 461 U.S. 660 (1983). In Bearden, the Court held “it is fundamentally unfair to revoke probation automatically” for an individual on probation who “has made all reasonable efforts to pay the fine. . .”
This trilogy of cases seems to strike an uncomfortable balance between an individual’s ability to pay fines and prohibitions of additional criminal penalties based on the inability to pay. One issue, that has yet to make the Court, is whether the termination of supervision or conditional discharge as unsatisfactory based solely on fines constitutes an additional criminal penalty. When supervision is terminated “unsatisfactorily” a conviction is entered upon a person’s record. While not the same as incarceration or revocation of probation, unsatisfactory termination of supervision or conditional discharge can lead to collateral criminal consequences such as checking “yes” on employment applications for whether you have ever been convicted, denial of housing applications, or denial of public benefits. For most defendants, termination of supervision or conditional discharge based on inability to pay fines is not guaranteed to happen as statutes such as 730 ILCS 5/5-9-3 require a court to determine whether a defendant’s failure to pay is intentional or not. If the defendant’s nonpayment is not intentional then the court “may enter an order allowing the offender additional time for payment, reducing the amount of the fine or of each installment, or revoking the fine or the unpaid portion.”
Illinois Fees Waivers to Disappear in 2024
Instead, the Illinois legislature could confront this issue at the onset by simply allowing for assessment waiver applications to be made at time of plea rather than the termination date for their supervision, conditional discharge, or probation. The Illinois legislature should take an evenhanded approach allowing defendants in each Illinois county to apply for an assessment waiver for violations of the Illinois Vehicle Code. Instead, the Illinois legislature has decided to take the opposite approach and shut down assessment waivers regardless of where one lives after July 1, 2024. Perhaps, in the legislature’s estimation, it is easier to allow courts to decide between revoking supervision and entering a conviction, or waiving fines at the end. It seems impractical to allow for assessment waiver hearings at the start of cases under the criminal code and reserving similar hearings for Illinois Vehicle Code violations until the end of supervision, conditional discharge, or probation. As Benjamin Franklin once said, “don’t put off until tomorrow what you can do today.”
Speak to Our Experienced Legal Team
Whether your pending case involves Assessment Waivers of any other matter related to criminal or traffic law, contact Mitchell S. Sexner & Associates LLC for knowledgeable advice from our successful legal team. We can be reached at (312) 644-0444.