The New Due Process: Fairness in a Fee-Driven State

February 2022
By Glenn Harlan Reynolds and Penny J. White in Tennessee Law Review

This article examines the legal system’s dependence on revenue from fees, fines, and forfeitures. Drawing on both existing Supreme Court authority and recent Court of Appeals decisions, the authors argue that a violation of due process exists when all participants in the criminal justice system, from police to court clerks, to prosecutors and judges, depend on revenues from pleas and convictions in order to function. Instead, we argue that due process demands that the criminal justice system be funded in ways that are not affected by the rate of arrest and conviction.

Key recommendation: Courts must be fully funded from state revenues, not from court-produced fines and fees.