S.F. owes the thousands who paid criminal justice fees a refund

This past May San Francisco became the first city and county in the nation to eliminate all locally controlled criminal justice administration fees. Ever since the Justice Department 2015 Ferguson Report highlighted the extent to which municipalities were attempting to balance their budgets on the backs of poor people and communities of color, momentum has been building across the country to eliminate these counterproductive and burdensome fees.

A report released earlier this year by the San Francisco Controller’s Office Financial Justice Project identified at least 45 fines or fees incurred by people attempting to exit the local criminal justice system. A typical client in the San Francisco Public Defender’s Office Clean Slate Program faces more than $5,000 in criminal justice administration fees.

While San Francisco’s groundbreaking legislation was clearly a step in the right direction, it appears Mayor London Breed and the Board of Supervisors still have a long way to go. Some of the very same fees that San Francisco officials were so quick to pat themselves on the back for eliminating appear to be fees that Sheriff’s Department and Superior Court officials had been illegally collecting for more than two decades.

The San Francisco Sheriff’s Department has been operating a home detention and electronic monitoring program since 1980 and a Sheriff’s Work Alternative Program (SWAP) since 1981. In 1998, the Sheriff’s Department was charging a $50 registration fee and a $30 daily fee for home detention and electronic monitoring and a $50 registration fee and $3 daily fee for SWAP. Twenty years later, the Sheriff’s Department was charging a $125 registration fee and $35 daily fee for home detention and electronic monitoring and a $100 registration fee and a $20 daily fee for SWAP.

The California Penal Code requires County Board of Supervisors’ approval of all program administrative fees for home detention, electronic monitoring and SWAP. Yet, based on a review of San Francisco’s legislative record, it appears the San Francisco Board of Supervisors never approved the registration or monthly fees for home detention, electronic monitoring or SWAP.

For monthly probation and pre-sentence report fees, the California Legislature passed legislation in late 1980 authorizing counties to assess and collect probation related fees. Alameda, Santa Clara, San Mateo, Marin and Sonoma County supervisors all passed ordinances to approve monthly probation and pre-sentence report fees but not San Francisco. As with the electronic monitoring, home detention and SWAP fees, it appears San Francisco officials approved these fees behind closed doors, denying the people a public hearing process.

Aside from privately contracted home detention and electronic monitoring programs, the California Penal Code limits the fees for electronic monitoring, home detention, SWAP, monthly probation and pre-sentence reports to no more than the cost to provide the services. But it appears San Francisco officials had not been evaluating these criminal justice fees for the cost of recovery limitations required by the California Penal Code. According to Controller’s Office responses to recent public records requests, neither Sheriff’s Department nor Adult Probation Department officials have provided any cost of recovery information to the Board of Supervisors as part of their departments’ annual budget submissions for at least the last five fiscal years.

The Board of Supervisors’ failure to approve these fees and conduct the required cost of recovery evaluations also appears to violate several local laws that require the Board of Supervisors to approve all fees, except those under the jurisdiction of the Airport and Port commissions, the Municipal Transportation Authority and the Refuse Collection Ordinance, at a properly noticed public hearing. City administrative code requires all departments to provide the cost of recovery information for all fees charged as part of the annual fiscal year budget approval process.

Just a few months after Contra County Supervisors discovered they had been illegally collecting some juvenile criminal justice fees, not only did they immediately end the collection of those fees and clear all existing debt related to the fees, approximately $8.65 million covering 11,000 cases, they issued refunds to the people who had paid these illegally assessed fees. Contra Costa County officials went back and reviewed accounts since 2010 and issued more than $135,000 plus interest in refunds to approximately 500 people. In an article for The Marshall Project, Contra Costa County Supervisor John Gioia said “it’s not easy for government to look at a practice, admit it was wrong, and make a refund, but it’s the right and moral thing to do.”

In August 2018 San Francisco officials did clear more than $32 million in locally controlled criminal justice debt affecting more than 21,000 individuals. But what about the people who already paid any unauthorized fees? According to the San Francisco Controller’s Office Financial Justice Project, between 2012 – 2017, Superior Court officials collected $90,177 in pre-sentence report fees and $2,712,628 in monthly probation fees. And based on Sheriff’s Department responses to recent public records requests, LCA, the county’s private provider of electronic monitoring and home detention services, collects approximately $200,000/year in fees for electronic monitoring and home detention related services.

If San Francisco officials are truly committed to financial justice for the poor people and people of color who are trying to exit the criminal justice system and turn their lives around, they should apologize, admit their mistakes and issue full refunds including interest to anyone who paid any illegally assessed criminal justice fees.

Anmarie Mabbut is a San Francisco attorney and open government advocate specializing in municipal fee legislation, public-private partnerships and public park access. She can be reached at acu@umich.edu.

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