Kaplan Hecker & Fink LLP associate Louis Fisher was published in the most recent volume of the Harvard Law Review Forum, the online companion to the Harvard Law Review. Louis’ article, “Criminal Justice User Fees and the Procedural Aspect of Equal Justice,” considers the constitutionality of monetary sanctions, and subsequent penalties for non-payment, imposed on indigent criminal defendants across the United States – a phenomenon that is occurring in increasing frequency and which threatens the application of equal justice in criminal adjudication and punishment.
In the essay, Louis highlights the Supreme Court’s decision in Bearden v. Georgia as the “modern touchstone” for evaluating the constitutionality of legal financial obligations (LFOs) that potentially violate the principle of equal justice. After addressing the “failure of the courts to develop a unified doctrinal approach” to such questions, Louis analyzes lower court cases that draw their rationale from Bearden’s doctrinal test and its focus on procedural protections to ensure equal justice. Louis ultimately argues that the Constitution “imposes certain procedural constraints on states’ authority to charge criminal justice fees that burden fundamental rights,” and that such procedures are “necessary, if not sufficient” to ensure that indigent participants in the criminal justice system are not deprived of their constitutional rights on the basis of their socioeconomic status. Louis also underscores the practical importance of this question by demonstrating the way in which the burden imposed by the rise in usage of LFOs represents an “overpunishment of society’s poorest populations” that also “falls disparately on people of color.”
Louis’ article appears in Volume 133, No. 5 of the Forum and can be read in full here.