Criminal Fines and Restitution in Colorado

Yesterday's front page Denver Post story looked at the issue of criminal fines and restitution in Colorado. Some key facts:

Fines and court costs

Fines and court costs were assessed in about 2.7 million cases in the past ten years with amounts assessed equal to an average of about $262.

About 79% of those cases were paid in full - about 85% in traffic cases and about 41% in felony cases.

About $215 million in fines and court costs are owed in about 570,000 cases, an average of about $38 outstanding per case. The median number is probably smaller.

The biggest fine and court cost debts outstanding in the state are:

1. Evan Sanders (drug charges) $202,056
2. Verna R. Brown (forgery) $178,235
3. Ernest A. Salazar, Jr. (forgery) $112,254

Restitution

Restitution was ordered in 148,381 cases in the past ten years, about 5.5% of cases where fines or costs were assessed (there is almost never a criminal case where restitution is ordered but fines and costs are not assessed).

About 56% of restitution orders have been paid in full. About $563 million is owed in about 78,500 cases, an average of about $7,170 per outstanding case.

The top ten restitution awards combined are for more than $100 million. Eight of the ten people owing those amounts are currently incarcerated. Excluding the top ten outliers the average owed per case is about $5,898. The median number is probably considerably smaller.

The biggest restitution award is owed by Terry Lynn Burton who started the 2002 Hayman fire, the largest in Colorado history. She owes $44 million.

Michelle Cawthra, a Colorado Department of Revenue employee owes $10.8 million that she stole from the state.

Robert Olan Bryant owes $8.8 million to securities fraud victims.

Collection Efforts

The state has about 100 in house collection investigation employees. This is increased collections by 25%-50% depending on the jurisdiction.

Analysis

Fines and restitution are attractive alternatives to incarceration. A fine is clearly understood by the public to be a punishment, and in an economically motivated crime, it is even similar in character to the harm involved in the crime itself. Restitution makes victims whole.

Neither requires costly state expenditures for incarceration. Collections investigators easily pay for themselves in terms on net revenue generated relative to not hiring them.

Non-incarceration penalties also tend to keep criminal defendants employed and connected to community support that can discourage future crime, while incarceration makes criminal defendants unemployable, making them unable to support themselves and their families without assistance, leaving them unable to compensate crime victims, giving them an economic incentive to commit new crimes, and forcing them to socialize with and build social bonds with other criminals. All of this contributes to the high rates of recidivism we see in people released from incarceration.

Large "day fines" are a common criminal sanction for moderate severity offenses that might be punished with incarceration in the United States throughout Europe. How does this compare to probation which is used in a far larger share of moderate severity offenses (non-traffic misdemeanors and lesser felonies) than most people realize.

In traffic cases and in other misdemeanor cases, where the fines, costs and restitution awards are small, the amounts owed are usually paid in full, and even when the amounts owed are not paid, there is usually an ability to pay.

In felony cases, the amounts owed are usually not paid, even in the common situation when the amount owed is fairly modest, often in the 1000s or low 10,000s of dollars, although, of course, some felony cases, almost by definition, cause very great amounts of harm and in turn create very large restitution awards.

Incarceration can't earn significant incomes. Civil forfeitures deprive many felons of much of their property. Even when they end their incarcerations, many felony defendants have little capacity to earn income. Most felons have one or more of the following problems: They have little education, few marketable skills, felony records, mental health and substance abuse problems, and generally don't know how to behave socially as a valued stable employee.

Even when convicted felons do have an ability to earn an income, they have little incentive to do so. A large share of their income will go towards current taxes, current criminal justice related obligations, and to past obligations for taxes, fines, court costs, restitution awards, breach of fiduciary duty judgments, intentional tort judgments, student loan payments, child support, and maintenance awards, that often cannot be discharged in bankruptcy. Given their limited attractiveness in the job market, most criminal defendants who can find a job at all have little left over affter paying for minimal food, marginal shelter and bare necessities, current taxes and criminal justice related obligations, and past obligation.

Should we develop some inferior form of bankruptcy, or conservatorship for ex-cons that perserves some incentive to engage in productive work while not significantly compromising existing recoveries of fines, costs and restitution, and not unfairly rewarding ex-cons with unpaid fines, costs and restitution who receive winfalls?

The vast majority of non-traffic crimes have an economic motivation, and were committed to a significant extent because the defendants couldn't find any legitimate way to earn a better living. A large share of non-economically motivated crimes involve people with serious anger control, impulse control or substance abuse problems who make poor employees until they can solve their problems.

Further Research

Some numbers that aren't provided by the story, but would be interesting to have would be the total amount of fines and court costs outstanding, in dollars and number of cases, for traffic, non-traffic misdemeanor and felony cases, with the felony numbers broken down by felony class.

From a policy perspective, the fact that there are hundreds of thousands of people out there with one or two small unpaid traffic tickets is pretty uninteresting, as is the fact that people who commit very serious felonies that do massive amounts of harm can't pay what they owe while incarcerated. Those are the dog bites man stories.

The interesting numbers are the payment rates and amounts outstanding as fine and costs, and for felonies for DUIs, non-traffic misdemeanors, and for felonies broken down to show felony class and whether the defendant is incarcerated.

If defendants in cases involving DUIs, non-traffic misdemeanors and less serious felonies who are not incarcerated, or are given only short jail terms, are able to pay their fines, costs and restitution awards at a high rate, then it is worth considering making economic sanctions perhaps with short jail terms, the presumptive sanction in these cases of intermediate severity. In particular, it might be the case that there are a significant number of crimes where increased fines make more sense to involving defendants in the probation system at meaningful economic, administrative, incarceration and negative incentive costs, in part for the defendants in part for the victims (for whom restitution payments may be slowed), and in part for the state.

But, if those rates are low, there may not be much room to make greater use of economic sanctions as an alternative to costly incarceration.

It would also be interesting to see a chart comparing the total amount owed in a given case to the rate of payment and the amount that remains outstanding. Where do fines and restitution orders reach a point of disminishing returns? Are there significant exceptions to the general rule? In what kind of cases are the biggest fine, cost and restitution payments actually made? Are the windfalls that justify keeping uncollectable fines, costs and restitution awards on the books common enough and large enough to justify the trouble that the system goes to in order to collect them, or would forgiveness at some point make more economic sense? If it doesn't make economic sense to keep uncollectable awards alive in order to collect windfalls, do moral considerations make the net loss worthwhile sometimes in any case?