November 29, 2020 "Information Clearing House" -  On August 9, 2014, in Ferguson, Missouri, a veteran police officer named Darren Wilson shot and killed an 18-year-old Black man named Michael Brown. The resulting furor led to protests across the country, igniting a debate about brutality, use of force, and policing tactics that rages to this day.

In the wake of the protests in Ferguson, Barack Obama’s Justice Department opened a federal civil rights investigation of the city’s police department. On page 2 of the resulting report, the DOJ zeroed in on something unexpected: revenue. Ferguson police, the feds said, were under constant pressure from financially-strained burghers to generate cash, and essentially ordered to ticket as many people — poor people — as possible.

The most penniless residents of the St. Louis exurb were written up for everything from actual crimes to municipal code violations like “High Grass and Weeds,” “Barking Dog,” and “Dog Running at Large.” Between 2010 and 2014, the city wrote up 90,000 summonses and citations, and the number in the last year of that period was double what it was in the first year. Either crime and dog-barking were skyrocketing, or police were experiencing more pressure to write tickets. As the report wrote:

The City’s emphasis on revenue generation has a profound effect on FPD’s approach to law enforcement. Patrol assignments and schedules are geared toward aggressive enforcement of Ferguson’s municipal code, with insufficient thought given to whether enforcement strategies promote public safety or unnecessarily undermine community trust and cooperation… The result is a pattern of stops without reasonable suspicion and arrests without probable cause…

For a lot of Americans, this was the first time they were introduced to the idea that cash-strapped municipalities were using the justice system as a means of generating revenue. The grotesque angle was that cities were so desperate that they were reduced to systematically ticketing people who couldn’t pay.

While this was going on, Alex Kornya, a public defender at Iowa Legal Aid, was experiencing his own sub-journey through one of the more bizarre corners of the criminal justice labyrinth.

“It goes back to Ferguson,” says Kornya. “A large part of the story of Ferguson was how the criminal justice system has been driven into overdrive, because of this need for revenue.” What he was witnessing was related, but weirder, and worse.

In December of 2015, a woman named Lori Dee Mathes was charged with a single count of possession of a controlled substance. Police were really interested in someone else, but executed a warrant on her property and charged her with a low-level offense based on what they found. Nearly two years later, in October of 2017, the state filed a motion to dismiss “upon agreement of the parties.”

Mathes was off the hook — sort of. She was sent multiple bills: $40 for “court reporter fees,” $100 for “filing and docketing fees,” and $1,815.28 in “indigent defense fee recoupment,” i.e. counsel fees.

When Mathes tried to argue an inability to pay these bills, the state balked. After all, there was no more case! On what basis could she argue?

It was a classic Catch-22. If Mathes had been found guilty, she’d have a right to appeal not only the disposition of the case, but also an ability to pay penalties. However, as a higher court eventually ruled, there was no right to appeal anything after a case like hers had been dismissed.

Citing a case called Berman v. United States, the Iowa Court of Appeals wrote that judgment is final when “‘it terminates the litigation between the parties on the merits’ and ‘leaves nothing to be done but to enforce by execution what has been determined.’”

Meaning: if we find you guilty, there’s something to argue. If we drop the charges, there’s “nothing to be done.” Thanks to this logic, as Kornya put it, “people who have dismissed criminal charges end up owing more money than people who are convicted.” As a cosmic punishment, it seemed, for arguing an inability to pay the initial few thousand, Mathes ended up owing $3000 more in appellate fees.

The Mathes case had grown more bitter with time. When Kornya tried to argue down the costs, prosecutors returned fire in the form of a threat with real teeth, writing in a motion that if any of the fees were to be reduced “in any manner,” they might re-file the criminal charge:

In the years since Ferguson, the public has become at least somewhat aware of the phenomenon of the state charging people for the pleasure of having to travel through the criminal justice system. In New York, for instance, people have to pay for the tests the state does to enter their DNA in a database. There may be additional surcharges of hundreds of dollars for felony convictions, “victim assistance” fees, fees for ankle monitors, etc.

People who are released from long prison terms often find themselves under an immediate obligation to repay years of costs racked up behind bars, with a failure to repay in some states leading to re-incarceration. In some states, defendants are assessed hefty fees for pre-trial detention. Kornya says an Iowa 16-year-old, tried as an adult, racked up over $50,000 in pre-trial costs in just one case.

The difference in Iowa is the angle of fees in dismissed cases.

“We've talked to hundreds, thousands of people who have this issue,” says Kornya. “From 2014 to 2019, there was $15 million in debt just associated with dismissed criminal cases with debts in Iowa.” He says the overall number of outstanding counsel fee debt is $177 million, and the collection rate is a pathetic 2%.

These debts arise from the vapor of a legal paradox. Although an Iowa statute, Woodbury County v. Anderson, says costs and taxes may only be assessed via “derogation of the common law,” there is no explicit statute outlining the state’s power to assess fees in dismissed cases. Prosecutors just do it.

How? Unlike plea agreements, which require the completion of a series of verbal or written formalities, there is no concrete mechanism with a dismissal. The attorney for a defendant like Mathes may agree to a deal, and the prosecutor simply has to represent to the court that a series of conditions, including fees, have been agreed upon.

“Are plea agreements perfect? Are there coercive elements to them? My God, yeah,” says Kornya. “However, what happens a lot with these agreements to dismiss is they have no formalities.”

A plea agreement may be required to be read into the record, in open court, with the defendant actually there, in front of a court reporter. Or there might be a written contract. But in dismissed cases like Mathes, Kornya says, “It’s basically just, ‘Oh yeah, she agreed to that.’”

Kornya was involved with another case dealing with a related phenomenon. In State of Iowa v. Jane Doe, a woman charged in 2009 with domestic abuse had her case dropped, for the sensible reason that she was actually the one being abused.

Upon dismissal, Jane Doe was sent a bill for “unpaid court costs” of $718.38, again involving counsel fees. Nearly a decade later, she tried to get her case expunged (a 2016 law had made this easier), but a district court ruled she could not. Why? She still owed court costs she had never been able to pay in the first place.

In an affidavit later filed by Iowa Legal Aid, Doe said her sole income came from two monthly assistance programs, totaling less than $1000. She listed the monthly expenses for caring for her two children (a third was on the way at the time) at $1445. The court finally did waive the fee, but Kornya and others tried to fight the larger issue of the stalled expungements. After all, there were masses of people applying for leases or jobs who were being held back by the appearance of a criminal record, thanks to unpaid fees assessed in dismissed cases.

“A lot of people were in the same situation as Jane Doe, who had a significant debt that only poor people owe,” says Kornya. A non-indigent person who didn’t pay off his or her privately-hired lawyer could be sued, or might face an adverse credit report, but the state couldn’t prevent their record from being expunged.

For a poor person, however, “the state can, and the state did. We thought that was a violation of the constitution.” They took the issue to the Iowa Supreme Court, but lost, 4-3 against.

In Iowa anyway, thousands of the poorest people are being assessed significant fees based on what comes down to parody of Kafka: an informal understanding of agreements informally settled upon, based on a nonexistent legal authority. There are echoes of taxation without representation here, except that like so many things associated with the criminal justice system, the concept is irrational and moronic in addition to being repressive.

“If you're talking about a policy that actually collects revenue, and to support the judicial system, going after people with no money is stupid,” Kornya says. “Because you're not going to get the money… However miserable you make their lives, they still have no money.”

Matt Taibbi is an American author, journalist, and podcaster. He has reported on finance, media, politics, and sports. He is a contributing editor for Rolling Stone, author of several books, co-host of Useful Idiots, and publisher of a newsletter on Substack