Last weekend, as temperatures around the country lifted into the high 70s and 80s, swarms of families and friends made their way to public parks, piers, and beaches, eschewing social distancing protocols in favor of typical late spring activities. Photos captured in Piedmont Park in Atlanta showed crowds walking past one another with far less than a foot of space between them, let alone the recommended six feet. Some wore masks, but most just shades and shorts. Meanwhile, New York’s Central Park was the scene of picnics, frisbee games, and bike rides, all as far from a vision of a global pandemic as one could imagine.
The nationwide fight against COVID-19 hinges as much on people’s willingness to properly comply with social distancing measures as it does on hospital capacity or scientific efficiency at developing a vaccine. But human behavior is far less predictable and obedient than science. As such, city and state leaders have been grappling with how to disincentivize residents from seeking a level of normalcy that while attractive, will have grave implications. An increasingly common approach has become the imposition of fines.
In New York, the epicenter of the COVID-19 pandemic, Gov. Andrew Cuomo doubled fines for noncompliance with stay-at-home orders to $1,000. In other jurisdictions, from the Bay Area to Orange County, Florida, fines for violating shelter-in-place orders or mandates to wear masks can come with fees ranging from $50 to $1,000. Criminal justice advocates, however, have long argued that fines are an overly punitive response and at this moment, their use is emblematic of how city and state governments have inappropriately used policing and the carceral system to address social and public health problems. Now, in the face of a global pandemic, these advocates are calling on local and state leadership to usher in public health approaches instead of relying on fines that only serve to criminalize poverty.
An expensive back door into the criminal legal system
Fines are typically levied for minor infractions like traffic or municipal code violations, but they can also accompany misdemeanor or felony charges. What is often hidden beneath the surface are the fees that frequently accompany fines, which are at times greater than the actual cost of the fine itself. These surcharges are paid to courts for a variety of different purposes depending on the level of the offense. They can include public defender registration fees, DNA databank and crime analysis fees, crime victim assistance fees, filing clerk and court clerk fees, or additional fees for late payments on the initial fine.
The fines now being handed out for violations of social distancing orders are no exception. In New York, for example, where violation of a stay-at-home order constitutes a misdemeanor, the surcharge for the fine is $175. That means anyone with a $1,000 fine should expect to pay almost $200 more on top of that.
Taken together, these fines and fees can pose a tremendous financial burden and come with onerous consequences. Those collateral consequences typically emerge when people with low or no income cannot afford to pay their fine. From there, the actual cost rises as interest accrues and late fees are tacked on to the original cost. Nonpayment of fines can adversely impact one’s ability to qualify for credit and loans and often results in the suspension of one’s driver’s license, which can in turn impact the ability to find work or commute to a job.
In some cases, nonpayment can also be grounds for an arrest warrant, which funnels people deeper into the criminal legal system simply because they cannot afford the hundreds of dollars owed on something as simple as a traffic ticket. Lisa Foster, co-director of the Fines and Fees Justice Center, a research and resource hub for the movement to eliminate fines and fees that also runs active state-based campaigns, says that as courts close due to the pandemic, managing or contesting these fines becomes even more difficult.
“If you get a citation for a COVID-related offense, where’s the opportunity to have a hearing? What if you can contest the validity of the citation? What if you were out with your family and you got a ticket for not being six feet apart but it was your family member? How do you challenge that? Where’s the opportunity to go to court?” said Foster. “And the date the court is setting, it could be months out, because nobody knows when the courts are going to reopen for these kinds of hearings. All those things are really open questions and that makes it even less of an appropriate response to this crisis.”
For COVID-19-related fines that are considered misdemeanors and will show up on one’s record, the pivot into the criminal legal system can be extremely abrupt. In Santa Cruz, for example, violations of stay-at-home orders can carry a fine ranging from $50 to $1,000 along with a possible jail sentence of 90 days. As social distancing is next to impossible in correctional facilities, even the shortest of jail stays would only serve to further exacerbate the problems that these stay-at-home orders are trying to prevent.
The high cost of racially biased policing
The use of fines and fees troubles advocates not only because of the domino effect of negative consequences but also because of how those consequences disproportionately ripple out into communities of color. Research shows that Black people are more likely to be stopped, cited, and arrested. In terms of traffic-related fines, racial disparities loom even larger in stops made by municipal police than state law enforcement. Foster says that we are already seeing those disparities in stay-at-home order enforcement as neighborhoods of color are being more aggressively policed than gentrifying or predominantly white areas. This was particularly striking just two weekends ago as police took divergent responses to community gatherings.
“We saw thousands of people swarming the beaches in California and Florida but we don’t really hear about people being ticketed for being on the beach, or being too close to someone from the beach,” said Foster. “We have seen examples of law enforcement targeting people of color: there was a birthday party in South Central Los Angeles, where law enforcement in riot gear came to break up a birthday party for a one-year-old child. That seems like an inordinately aggressive response.”
“People without money can’t pay a $1,000 fine”
The most perplexing part of the use of fines to enforce shelter-in-place orders is that they are coming at a time when the same local and state leaders that are imposing them are also recognizing the immense financial strain that their residents are under. Since March, government officials have made some effort to lift the economic burden of their residents, if only temporarily. States like Texas have ushered in eviction moratoriums, and in Buffalo, New York, late fees for traffic and parking tickets have been suspended.
Yet, these same government entities are comfortable with introducing new fines for social distancing violations, suggesting that there is little willingness to create social behavior incentives that do not rely on carceral strategies.
“The idea of imposing this fine on people who are already struggling to meet their basic needs is absurd. People without money can’t pay a $1,000 fine, which is the fine in many jurisdictions,” said Foster. “Today at least 20% of the country is unemployed. That’s a staggering number of people without work, and they’re just not going to be able to pay this kind of debt.”
The enduring use of fines likely stems from the ways that these payments bolster and often balance municipal budgets. While fees manage court-related costs, fines are funneled toward county or state general funds. A 2019 analysis by Governingmagazine found that in nearly 600 U.S. towns, revenue from fines and forfeitures made up more than 10% of their general fund revenue. In 284 of those towns, fines and forfeitures comprised over 20%.
The role that fines and fees play in keeping municipalities, often smaller rural towns, operating came to national attention following the Department of Justice report on Ferguson, Missouri, and the city’s policing practices. According to that report in 2012, 13% of Ferguson’s municipal budget was funded by fines and fees. In 2015, that percentage jumped to 23%. While the final destination for money garnered from COVID-19-related fees will differ across the country, many cities and towns will see that money go toward their general budgets. In New York, social distancing fines are counted as criminal misdemeanor fines and will go toward the city’s general revenue.
Toward public health approaches to a public health problem
Lisa Foster and her team at the Fines and Fees Justice Center are currently drafting a set of policy recommendations for local and state leaders on how to promote social distancing that does not rely on burdensome fines. Ultimately, their guidance will center around replacing punitive strategies with public education and the provision of much needed resources.
“If New York is going to insist—as it communicates now—that people wear a mask in public, then make sure people have access to masks and that they’re free for people who can’t afford them, which is a large percentage of the population,” said Foster. “People are suffering economically in ways that are really unprecedented right now. They can’t pay their rent, we’ve seen lines for food pantries that are longer than any pantry in the country has ever experienced before. When that’s the case, the idea of imposing a fine before we try everything else is just wrong.”
Foster cited a few cities that are already serving as examples of alternatives. On April 15, Converse, Texas, Mayor Al Suarez gave out free masks to residents of the San Antonio suburb. A few days later, Mayor Ras Baraka of Newark, New Jersey, also gave out free masks and rubber gloves at one of four giveaway sites organized by the City of Newark. Last week, Washington, DC, residents began receiving pre-recorded calls from Michelle Obama encouraging them to stay at home. Foster says this latter example is particularly effective because it removes law enforcement altogether and replaces them with a more “credible messenger” who has deeper community ties.
“Obviously stay-at-home and social distancing orders are designed to prevent the spread of COVID-19,” said Foster. “They’re vital. They’re intended to protect everybody’s health and safety, and particularly those among us who are most vulnerable to the virus. Our concern is with criminalizing illness [and] that this is potentially a harmful approach—it’s not a public health approach to a public health problem.”
