(updated with some minor corrections in the details related to fines, fees and penalties)
As one might expect for a Seattle-based institution, the Seattle Municipal Court has earned a reputation for pursuing progressive policies with regard to criminal justice reform. In recent years the Court has worked to reshape its procedures and policies for both probation and bail to address racial disparities. Most recently it has turned its attention to “legal financial obligations” or LFOs: the patchwork of fines, penalties and fees that are imposed upon those found guilty of breaking the law.
The Court, in cooperation with the city’s Office of Civil Rights, commissioned researchers from University of Washington and Rutgers University to analyze how the court has imposed LFOs over the last several years and to determine if there are disparate impacts arising from its policies and practices. In their report, released in late July, researchers did indeed find disparate outcomes, though following the thread back to the source of the disparities leads to some familiar — if unsurprising — places.
Seattle Municipal Court handles non-criminal infractions and criminal misdemeanor charges originating within the city (felony charges are tried in King County Superior Court). Of those cases where LFOs were imposed over the year 2000-2017, the vast majority — 91% — are non-criminal infractions, almost entirely traffic infractions.
Over the same period, the number of infractions has dropped dramatically. Most of that drop occurred even before the Consent Decree between SPD and the Department of Justice was signed in 2012.
Compared to other cities in the state, Seattle’s rate of issuing criminal citations is notably low, though it’s in the middle of the pack for non-criminal infractions.
From all appearances, Seattle Municipal Court judges try to minimize the size of fines, fees and penalties imposed. The data shows that in many cases they are successful in that endeavor:
But judges are constrained in their ability to do this, mostly by state laws that impose mandatory fees and penalties that cannot be reduced. These additional fees collectively adding up to hundreds of dollars in costs that judges may be powerless to reduce. For criminal cases in Seattle Municipal Court, where the fine usually starts in the thousands of dollars, the final LFO ordered by the court is on average a tiny fraction of the original amount, even including the add-on fees:
But for non-criminal infractions, the add-ons are numerous, substantial, and often unavoidable. Even if a judge finds that the individual is unable to pay the amount and the individual requests a payment plan, there are fees to set up the payment plan. The state legislature has also added fees to pay for special programs, such as auto theft prevention, trauma care, and traumatic brain injury treatment:
The researchers analyzing the LFO system didn’t find any obvious racial disparities in how the courts were imposing fines, penalties and fees, especially after judges made their discretionary adjustments:
However, they did find disparities in who were receiving LFOs: with respect to the overall population, many more Black persons (and to a large extent other persons of color) than White persons leave the courtroom with an LFO imposed upon them. After digging deeper, they concluded that those numbers mirrored the racial distribution of the people entering the court system, and not any particular action or policy of the Seattle Municipal Court. So in order to understand what is happening here, we need to look at the paths that lead individuals into the court system.
Twenty years ago — over a decade before the Consent Decree — the Seattle Times looked at five years of traffic citations and found that Black persons were twice as likely to get a traffic ticket as White persons. There was much consternation and arguments back and forth as to whether this represented racial profiling.
Last month, SCC Insight’s inquiry directed to SPD to get up-to-date statistics on racial demographics for traffic citations (both criminal and non-criminal) uncovered something astonishing: the police department not only doesn’t track those statistics, it doesn’t even have the data. According to a spokesperson for SPD, officers input traffic citations directly into an app managed by the Washington State Patrol, which in turn feeds information to the Seattle Municipal Court. Under the 2012 Consent Decree, SPD is required to collect data and regularly report statistics on potential racial disparities across a wide range of topics, including use of force and Terry stops; the court-appointed police monitor also does similar analysis. Yet after eight years they have never incorporated statistics on potential racial disparities in SPD traffic citations into any of those reports, and according to SPD’s spokesperson, they don’t even request the data from the court and analyze it internally. To be clear, the Consent Decree does not explicitly mandate that they do so, but it nevertheless creates a gaping hole in their understanding since traffic citations represent tens of thousands of interactions between police officers and Seattle residents each year.
Fortunately, the helpful folks at the Seattle Municipal Court’s public information office were kind enough to provide SCC Insight with the complete data set (anonymized) for 2018 and 2019, and an analysis of that data set shows that twenty years after the Seattle Times report, substantial racial disparities persist. For context: as of last year, Seattle’s population is 7.4% Black and 66.4% White. But over 2018 and 2019, 16% of the 64,851 non-criminal traffic infractions were given to Black persons, while only 48% went to White persons. Of the 11,857 criminal traffic citations, 26% went to Black persons and 59% to White persons.
There are well over 100 separate types of non-criminal infractions cited by SPD over the two years; here is a snapshot of the racial demographics of several of the most common ones:
Most, if not all, of these infractions are ones that officers have discretion in enforcing, including whether they even choose to pull someone over, let alone issue a ticket. And yet clearly Black drivers are significantly over-represented; for example, Black persons received 37% of all the tickets SPD issued for defective tail lamps, and 30% of the tickets for defective headlamps. That strongly suggests that at least some of these are Terry stops in disguise: officers are sometimes pulling over Black drivers because of suspicions of other law-breaking. Such pre-textual stops are prohibited in SPD’s policy manual, as well as by the Washington State Constitution. Members of Seattle’s Black community with whom I shared this data commented that it matched their own experience over decades of living in Seattle, and that — as with Terry stops — it leaves the impression that the police are harassing the Black community through over-policing.
The criminal traffic citations show very similar patterns — with a couple of notable exceptions, easily spotted on the chart.
But as we follow these cases into the courts, we see other structural systems that lead to disparate outcomes. Simply by looking at how traffic infraction cases are ultimately resolved in the court system shows a glaring difference along racial lines:
In short: half of the time White and Asian/Pacific Islander individuals pay the fines up-front, while Black and Indigenous persons do so less than a quarter of the time. However, nearly the opposite pattern exists for defaulting (i.e. not paying the ticket and not showing up in court to contest it).
Studies have shown that people who can’t afford to pay a ticket often don’t show up in court to ask for a lowered amount or a payment plan; they simply default. But the consequences for defaulting are substantial: not only do all those additional court-imposed fees and fines get added to the amount owed, but under state law the court is required to direct the state Department of Licensing to suspend the offender’s driver’s license until the amount is paid in full. As we can see in the chart above, in 2018 and 2019 36% of non-criminal infractions that Black drivers were cited for were defaulted on — 3,749 separate defaults, and every single one was a mandatory license suspension (unless it was paid during the 15-day grace period between the judge’s order and DOL’s action).
As many policymakers have pointed out before, this is the height of stupidity in public policy. Many people, particularly those who can’t afford to live close-in to the city center or in areas with good public transportation infrastructure, rely on their cars to commute to and from work. Taking away their driver’s license is equivalent to taking away their livelihood, and it makes it much harder for them not only to pay their fine, but also to continue paying for housing, food and other necessities to support themselves and their families. Faced with this stark reality, many of them continue driving to and from work anyway after their license is suspended. And that inevitably ends as you would imagine: with additional citations — this time criminal ones — for driving with a suspended license. In 2018 and 2019, there were 629 citations to Black persons for driving while their license is suspended; that’s 48% of all DWLS citations over that period of time. And of course Black persons are more likely to get busted for driving with a suspended license, because Black persons are disproportionately pulled over by the police for minor infractions (and Terry stops).
In the UW/Rutgers study commissioned by Seattle Municipal Court, the researchers found that being sentenced to an LFO substantially increased the likelihood of future incarceration, and especially for Black persons. Now we can see why: if you can’t afford to pay the LFO, you have two potential paths to go down, both high-risk:
- Go to court, try to get the amount reduced and/or a payment plan, and then try to make the payments without defaulting (and losing your driver’s license); or
- Default on the citation, lose your driver’s license, and hope you don’t get pulled over driving yourself to and from work until you can save up enough to pay the fine, penalty, and add-on fees.
This is not new information; three years ago, the ACLU issued a report calling third-degree DWLS “Washington’s most ineffective crime.” Two years ago, Senator Jamie Pedersen tried to decriminalize DWLS-3, which would have helped a bit, but would still fall far short of solving the problem.
Last week four individuals sued the State of Washington in the hope of a more substantive change. They argue that the state law that requires mandatory suspension of drivers’ licenses for failure to pay traffic fines is unconstitutional, on the grounds that the Constitution requires courts to perform an “ability to pay” analysis before imposing sanctions for nonpayment of fines or fees. “License suspension can, and often does, lead to a cascading series of escalating financial obligations that punishes and perpetuates poverty,” they argue in their court filing. Additionally:
According to the Washington Center for Court Research, in 2006 and 2007 only 43 percent of individuals charged with DWLS3 made any payments on their fines, while 80 percent of individuals charged with negligent driving were able to pay. This suggests that a significant portion of those charged with DWLS3 lost their license in the first instance due to their inability to pay, and that those individuals who can pay their fines do.
They also argue that suspending licenses for failure to pay has other public policy failings. For instance, it increases the number of uninsured drivers on the road, because without a license a driver is unable to obtain insurance.
The plaintiffs are asking the court to invalidate the law that mandates suspension of drivers’ licenses for failure to pay fines.
How do we fix this? First, SPD needs to start tracking its own statistics, and implementing training and policies that reduce racial disparities in traffic citations. Gathering and analyzing the data is the easy part; actually changing officers’ behavior is another, as we have seen with SPD as it relates to Terry stops and use of force. Over the years that the department has been working on both of these topics, they have reduced the number of Terry stops and substantially reduced the use of force by SPD officers. However, the remaining Terry stops and uses of force by SPD still have substantial racial disparities. Unless something else changes, we should expect to see the same with traffic citations.
Second, there are some necessary changes in state law. There ought to be fewer mandatory fines, fees and penalties related to court adjudication of traffic citations, and judges should be given clear directive to take into account an offender’s ability to pay as well as the flexibility to reduce or eliminate fines and penalties for indigent offenders. Two weeks ago the Seattle Municipal Court announced that it is moving to eliminate discretionary fees, fines and penalties for criminal cases to the extent that it is allowed under the law — though it’s not a huge change since, as we saw above, in practice they have already eliminated most of them.
The other necessary change to state law is to stop suspending drivers licenses for failure to pay fines, or at the very least to give judges the flexibility and direction not to suspend an offender’s license if it is determined that it would impact the person’s ability to pay.
And finally, we need to close the well-documented racial pay gap. There’s a simple reason why white people pay their traffic tickets and Black people don’t: white people make enough money that they can afford to, and Black people don’t. But the result — that Black people with traffic tickets go into debt, lose their driver’s license, and from there often end up in jail — is direct evidence of the great harms that structural racism and economic disparity continue to inflict on Black people and our society as a whole.
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