Associate U.S. Attorney General Addresses Equal Access at Liman Colloquium

Associate U.S. Attorney General Vanita Gupta took the occasion of the 26th annual Liman Colloquium to discuss newly issued Department of Justice guidance that takes a critical view of the use of money as punishment in the criminal legal system.

Gupta’s April 21 remarks on the “Dear Colleague” letter on fines and fees imposed by courts were part of the Arthur Liman Center for Public Interest Law’s annual convening, this year titled “Budgeting for Justice: Fiscal Policy and Monetary Sanctions.” The three-day event at Yale Law School brought together a diverse group of 200 that included researchers, fiscal policy experts, policymakers, activists, litigators, Liman Fellows, faculty, students, and others working at the intersections of criminal punishment, government services, and public finance. 

Through a series of collaborative sessions, the colloquium aimed to identify significant methods that have succeeded in limiting — and at times ending — regressive funding structures. In addition, participants discussed how to do more to help governments improve the justice of their social and legal services.

The use of fines and fees in the legal system has emerged as a key issue of justice. Many have questioned the practices of using money to punish people who cannot afford to pay and charging people fees for the cost of their punishment. In recent years, the Liman Center has worked to advance the understanding of this issue.

The latest Justice Department guidance on fines and fees was issued by the Civil Rights Division, Office of Justice Programs, and Office for Access to Justice the day before the Associate Attorney General’s speech. The letter is a statement of U.S. legal principles committed to equal justice under law and seeking to ensure that all people, no matter their economic resources, can use the state and federal court systems. 

“Fines and fees that are assessed without consideration of ability to pay can have a devastating impact on a person’s life,” Gupta said. “Individuals who are unable to pay can become trapped in escalating and inescapable cycles of debt, extended periods of probation and parole, changes to immigration status and repeated, unnecessary incarceration.”

“Fines and fees that are assessed without consideration of ability to pay can have a devastating impact on a person’s life ... These practices affect not just individuals but their families as well.”
—Associate Attorney General Vanita Gupta

Gupta was joined by Justice Anita Earls ’87 of the North Carolina Supreme Court and Justice Sheryl Gordon McCloud of the Washington Supreme Court. Together, they discussed the role of the federal government and the view from the state courts in a panel moderated by Lisa Foster, co-director of the Fines and Fees Justice Center, and Judith Resnik, Arthur Liman Professor of Law at Yale Law School. 

In the session, Gupta described the far-reaching effects fines and fees can have on people.

“They can lose their employment, voting rights, driver’s licenses, homes or even custody of their children,” she said. “These practices affect not just individuals but their families as well. And these detrimental effects fall disproportionately on low-income communities and people of color.” 

Read the full remarks of Associate Attorney General Vanita Gupta.

The Justice Department letter that Gupta referenced at the colloquium includes an updated discussion of the relevant case law on the assessments of fines and fees, cautions against discriminatory enforcement of fines and fees, and obligations that recipients of federal funding must comply with to ensure non-discrimination in the imposition and collection of fines and fees. The letter both revises and updates guidance from 2016 that focused on the assessment of fines and fees against adults and a 2017 advisory addressing the assessment of fines and fees against juveniles. 

During the same panel, Earls discussed the role of the Governor's Task Force on Racial Equity and Criminal Justice of which she is a co-chair, and the steps taken in North Carolina to develop and help implement solutions that will eliminate disparate outcomes in the criminal justice system for communities of color. McCloud, chair of the Washington State Task Force on Gender and Justice in the Courts, discussed how individuals are subject to high fines for small infractions. The Justice Department guidance cited a decision of Washington’s Supreme Court in which the test of “excessive fines” addressed both the proportionality to the offense and to the person’s ability to pay. 

State justices at the colloquium welcomed the Justice Department guidance as an important contribution to work across the country. 

“The 2016 Department of Justice’s Dear Colleague letter was what got me into this work when I started at Legal Aid,” said Edward Wunch, an attorney at Legal Aid Services of Oklahoma, adding, “I really appreciate the letter being reissued.” 

Bryan Stevenson, Director of the Equal Justice Initiative and recent recipient of President Biden’s National Humanities Medal, launched the colloquium on April 20 with a presentation on “The Costs of Punishment” to a packed auditorium.

“There is a larger narrative behind the way in which we use fees and fines and fiscal policy to punish the incarcerated and condemn them with fees,” Stevenson said. “And I don’t think we’re going to be effective at deconstructing these systems and providing meaningful remedies if we don't take on this larger narrative.”

Stevenson called the present day a critical time in American history.

“We’re in the midst of a really vital narrative struggle,” he said. “We’re once again seeing the emergence of the politics of fear and anger. And not only is it a threat to the progress that’s been made in carceral studies, but it’s also a threat to democracy. You need to understand, as most of you do, that our policies are not just things that legislators or policymakers make in the ether. They are a reaction to narratives that we carry around with us.”

The 2023 Liman Colloquium was co-hosted by the Fines and Fees Justice Center, the Center on Budget and Policy Priorities, the Policy Advocacy Clinic at the UC Berkeley School of Law, and the Brennan Center for Justice. The event was made possible by a grant from Arnold Ventures. The Liman Center also acknowledged Paul, Weiss, Rifkind, Wharton & Garrison LLP for its ongoing support, and Yale Law School for its sustaining commitments to public service.

Through the work of faculty, students, and fellows, the Arthur Liman Center for Public Interest Law aims to improve the ability of individuals and groups to obtain fair treatment under the law. Since 1997, the Center has launched hundreds of public sector legal careers, undertaken innovative research to generate meaningful change, and supported communities, in the hopes of contributing to a more just legal system.