The Institute for Justice has done a comprehensive report on municipal fines and fees. It’s not exactly easy to decide what is and is not excessive. After all, if the municipality gets to keep the money, what establishes what percentage those fees should or should not be of the municipality’s overall budget? Is 5% reasonable? What about 25%?

I think the very fact that it’s difficult to determine the threshold of excessiveness is an indication that we’re asking the wrong question. Maybe we should instead be asking why the heck we are letting government incentivize its own bad behavior? What was the point of fining people in the first place?

Well, to get them to change their behavior, right? How’s that working so far? Fines that increase the financial hardships of the less fortunate alter their behavior alright – and their attitudes. And those attitudes will often express themselves in negative ways down the line. Not exactly encouraging the good citizenship we actually want, is it?

Big changes are slow in our system – by design. So we’ll discuss the big picture tomorrow – what are our alternatives now? What smaller changes can we make that encourage a just system of regulation and enforcement?

While I’m not ready to give up on home rule, there do need to be limitations on what a municipality can enforce. State law should be enforced by the state, especially where codification of regulations have already occurred. Translation – the state should be enforcing the complex regulations for things like building codes. That doesn’t mean that states can’t work with municipalities – in fact, that kind of cooperation is necessary. But the state should be calling the shots – and paying for the municipality’s assistance.

Fines are not funding. They serve a punitive function – and that money isn’t for use by government. At the very least, the government levying the fines shouldn’t be benefitting from them. Municipal and county fines should go to a neutral fund that is not controlled by the local governments. The obvious drawback is that the state would be providing that oversight – and it shouldn’t benefit from those fines, either.

Where should they go and how would we decide? Anything worthwhile – but most state line items sound worthwhile – and the money can disappear down yet another government rabbit hole. So we need to figure this out and have the funds earmarked – preferably to something that doesn’t directly benefit a state budget. Complicated, yes, but a doable solution to part of the problem.

And maybe we need to revisit the idea of municipal courts. Too often, they aren’t well regulated – and way too often, they are set up by the municipality itself. I’m still for home rule – but the judicial system is built in a hierarchal chain. State systems are separate of, but subservient to, the Federal system – this is a feature, not a bug. States figure out what their own laws mean and only* when those laws conflict with the rights guaranteed by the Constitution do the Federal courts even have jurisdiction, let alone actually hear the case.

But municipalities can only pass ordinances, not laws. They have the ability to pass local regulations – but laws require representation in the state legislature to pass. There’s really no logic to a judicial system just to determine what the ordinance means – you can just ask the city council. Municipal courts handle the workload of adjudicating the various citations. When Judge Bob is paid out of those fines, there’s a BIG problem. These are not the courts that should be deciding guilt or innocence when they directly benefit from guilty verdicts. And maybe that means they shouldn’t be handling any of this workload and that county and state courts should take the burden instead.

The powers of enforcement also need a good hard look. Why should anything other than a serious moving or safety violations result in license suspension? Okay, doing 80 in a school zone or driving without brakes – yeah, this guy doesn’t need to be driving for awhile. But expired tags and busted taillights? Tags can be handled by the probate office – there’s no sense in making cops into tax collectors; busted taillights and other minor issues can be handled with minor citations that clear (don’t have to be paid) if the repair is demonstrated within a few days. The idea is to keep folks safe and get the taxes paid – not to enrich the municipalities.

And that brings us to jail time – there shouldn’t be any. Not for non-payment without a finding of the ability to pay. Not ever. Why? Because the US Supreme Court says so – and more than a few municipalities seem to think this doesn’t apply to them. Many don’t even bother to have a hearing on ability to pay – not that we really need the fox guarding that particular henhouse.

Skipping out on fines is just not that significant a crime – and it can be dealt with more effectively by the Revenue department – that lovely tax refund can simply be garnished. The few people that move out of state to avoid a reasonable fine are hurting themselves and frankly aren’t likely to be statistically significant anyway. Incarceration just costs the city and county more money – and society a contributing member. Jail time because you didn’t pay a minor fine is just dumb.

*Seriously over simplifying here. It’s the correct basic idea but like most things in law, it’s gotten much more complicated than that.