Is it constitutional to require criminal ­defendants to fund their own prosecution?

Kahryn Riley, Mackinac Center for Public Policy

Can criminal defendants be required to pay a portion of the costs of prosecuting them? That's a question the Michigan Supreme Court may soon answer if it takes up the case of one defendant who says that imposing those costs on him amounts to levying an impermissible tax.

Shawn Loveto Cameron, who has asked the high court to hear his appeal, was tried and convicted of assault in Washtenaw County. The trial court sentenced him to prison - 13 months to 20 years - and also ordered him to pay over $1,600 in court costs. Cameron was then entitled to argue his case before the Michigan Court of Appeals, where he asserted that the costs amounted to an illegal tax. The court, he said, lacked statutory authority to impose them.

The appeals court disagreed and upheld the trial court's decision, so Cameron petitioned the state Supreme Court to hear the case. That court, like its federal counterpart, hears only a fraction of the cases that come its way. If it does not grant his petition, the Court of Appeals' ruling will stand.

Cameron's argument has raised two questions. Are court costs considered a tax, a fee or something else? And if a tax, does it violate either the separation of powers or the distinct-statement clause of the Michigan Constitution?

He has a strong argument that requiring criminal defendants to pay court costs amounts to a tax. As he explains in his application to the Supreme Court, taxes and fees are different, by design: Taxes are involuntary payments meant to raise revenue, while fees are voluntary payments made in exchange for services received or benefits conferred. Cameron's prosecutor admitted that the requirement defendants face to reimburse courts for the costs of prosecuting them is a tax, not a fee, and the Court of Appeals agreed.

The case seems to turn on the second question: Is it constitutional for courts to impose these taxes, and are they structured properly? Cameron says no, pointing out that the Legislature cannot delegate its authority to tax to another unit of government, and transferring this responsibility to the courts violates the separation of powers doctrine of the constitution.

Moreover, because court costs vary by jurisdiction - reflecting the expenses of running each court -the statute authorizing them is too obscure to pass constitutional muster. A law creating a legal tax, Cameron argues, would distinctly state a sum and indicate that it is a tax.

The Court of Appeals disagreed, deciding that as long as the costs imposed on the defendant are "reasonably related" to the expenses actually incurred by the court, they are not improper. And, as for the separation of powers issue, the Michigan Supreme Court has said, "The boundaries between these branches need not be airtight." As long as the Legislature provides guidelines, it may delegate its authority even its power to tax. Moreover, the appeals court noted, the Legislature has already delegated some of its criminal sentencing power to the courts without violating the separation of powers.

The Supreme Court may allow courts to impose costs on criminal defendants. But is it good policy? No.

Justice is not free, and operating a court means paying salaries and administrative expenses. The state pays judges' salaries and some of the courts' operations, and counties use their own tax revenue to cover some of the expenses. Courts fill in the rest with their own revenue-generating measures. Assigning court costs to defendants is one such measure, as is requiring parties to civil lawsuits to pay filing and motion fees. If courts are to assign costs to criminal defendants, it is at least better to charge a flat rate like Washtenaw does. Requiring defendants - many of whom are indigent - to pay a fee for each filing and motion would result in a miscarriage of justice because it would pressure them to take plea deals or guilty pleas to avoid accumulating the fees required by a lengthy and complex defense.

Many defendants are indigent, and that fact presents many problems for a just government. Wealthy people are more likely to have stable employment and housing, meaning that they are less likely than poor people to run afoul of the law and more likely to have effective representation when they do. Court costs are only assigned to people who are found guilty. This puts the courts in the precarious position of hanging their ability to fund themselves on the very individuals who are least able to pay in the first place. Those individuals are also the least able to recover financially from a criminal conviction and are at higher risk of reoffending and incurring even more costs as a result of the debt.

Requiring payments from convicted criminals also introduces a profit motive in our courts. Judges do not assign court costs to prosecutors when defendants are found not guilty, meaning that courts only recoup costs when judges enter guilty verdicts. Although officers of the court are presumably honest people, the practice of allowing judges to generate revenue should raise concerns about whether it violates due process.

Court expenses have gone up in Michigan and nationally over the last few years, handing local governments a financial challenge, and Gov. Rick Snyder created the Trial Court Funding Commission last year to study the issue. Whatever it concludes, imposing costs in a criminal case is an inherently regressive measure that is ineffective and possibly unconstitutional. Policymakers should find a way to do without them something they may have to do eventually if the Supreme Court takes Loveto's case.


Kahryn Riley manages the Mackinac Center for Public Policy's criminal justice reform initiative. A Michigan native, she studied in the honors programs at Hillsdale College and Regent University School of Law. She holds a BA in politics and a JD, and is admitted to the Michigan State Bar.

Published: Fri, Apr 06, 2018