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This is what government looks like when you run it on the cheap

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Latest court system mess is directly linked to the Right’s ideological war on public structures

Sometimes you have to hand it to the ideologues on the far right. They’re so persistent and creative and have gotten so effective at attacking, bad-mouthing, defunding and just plain undermining government, that often their destructive “victories” slide in right under the radar.

The traditional, tried and true formula in this realm goes something like this: a) complain incessantly about the performance of some important system of government like, say, the public schools or environmental protection; b) use said supposed poor performance as grounds for reducing funding in order to promote greater “efficiency” and combat “waste”; c) when funding cuts fail to improve outcomes, repeat the cycle and propagandize about the need to privatize services by giving public funds to favored corporate interests.

Of course, this is just one of many variations on the theme that the deplorable right-wing bully Grover Norquist [2] has so darkly described as his movement’s ultimate goal of shrinking government “down to the size where we can drown it in the bathtub.” Other tactics involve making it all but impossible to enact new and effective administrative rules, playing the race card to convince whites that people of color benefit unfairly from public programs, appointing individuals with conflicts of interest to run agencies whose missions they oppose and/or simply elevating plain old incompetent hacks.

Fee-for-service government

Another tactic commonly employed by the Right involves what might be characterized as the “fee-for-service government” scheme. The trick here is to convince the public that government should provide services like a vending machine. Rather than a system in which citizens hire and empower a corps of skilled and well-funded professionals to help them build a better society for all, the idea is to promote a system in which “consumers” “shop” for services and public institutions “compete” for “customers.”

For a classic recent example in this realm, check out the explosive growth in the reliance on court fees and fines. Rather than levying general state taxes at a fair and adequate rate – especially on the wealthy and profitable corporations – lawmakers have increasingly turned to fees and fines to raise the revenues necessary to fund the state justice system.

This is from a letter delivered last year by an array of public defenders and civil rights groups to Chief Justice Mark Martin’s North Carolina Commission on the Administration of Law and Justice [3]:

The average criminal and civil court costs facing defendants and petitioners have more than tripled in recent years. In 1995, the general court of justice fee for district court was $41. In 2015, the general court of justice fee for civil and criminal district court was $127. In 2016, the criminal district court of justice fee—a standard fee charged to every defendant found guilty or responsible for a criminal or traffic offense— was increased to $147. This is just one of dozens of steadily increasing fees often charged to defendants. These rising court costs represent an enormous extraction of wealth from the thousands of North Carolinians who pay these fees across our state every day—often in lieu of rent, child care, car payments, and other essential expenses. In a small percentage of cases, courts are willing to waive the court costs based on a defendant’s or petitioner’s inability to pay. There are growing concerns among advocates that recent statutory changes may be curtailing the appropriate use of indigency fee waivers. Moreover, several fees—including the $200 fee to participate in first offense diversionary programs—are mandatory and cannot be waived. Defendants that do not receive waivers and are unable to pay the court costs are left with debts that often give rise to severe civil and criminal consequences.”

Obviously, this is an unsustainable way to fund core public services and structures. By relying increasingly upon those who have interactions with the court system – a group of people that tends to have more troubles and shallower pockets – North Carolina is setting things up for failure in multiple ways. First, it’s imposing what amounts to a profoundly regressive tax. Second, it’s all but guaranteeing that a growing number of people will be unable to pay their fines and fees – thus setting them up for a vicious cycle of even more negative consequences and interactions with the court system and undermining justice system revenues.

But wait, it gets worse.

Legislature moves to stop judges from waiving fines and fees

In a rational world in which public officials had a genuine interest in making government work fairly and efficiently for all, it wouldn’t take long for the real life impacts of the above scenario to lead to a policy about-face. Unfortunately, that’s not the world currently inhabited by the anti-government ideologues driving policy in North Carolina.

Instead of lowering fines and fees to reasonable levels, state legislative leaders have doubled down on what might be termed the “blood from a turnip” strategy. This past summer, the General Assembly slipped a provision into the budget that will make it much more difficult for judges to waive fees for indigent defendants.

As Policy Watch Courts, Law and Democracy Reporter Melissa Boughton explained in June [4]:

The provision mandates that no court may waive or remit all or part of any court fines or costs without providing 15 days’ notice and an opportunity to be heard to all government entities affected by the monetary collection.

That means that judges or clerks would have to either predict when someone is going to be convicted and sentenced or they have to set a second hearing and send out notices 15 days in advance to any government agency that gets a piece of the pie — this includes sheriff’s offices, the State Bureau of Investigations, the State Treasury, the school system and even legislators.”

The obvious effect of this new law (which goes into effect next Friday, December 1) is to create an absurd “Catch-22” situation for judges who know that the people appearing before them are poor: they can impose fines and fees they know can’t be paid or they can wade into a ridiculous new conservative-hatched bureaucracy.

Yesterday, Boughton reported [5] that the Administrative Office of the Courts (AOC), which recently issued a new directive on the matter, has concluded that there are 615 state and local entities that will now need to be “noticed” each time a judge proposes to waive a fine or fee for an indigent party. The AOC proposes to deal with this ridiculous new requirement by printing and sending out one such notice to each entity every month.

According to the AOC (which responded yesterday to an inquiry from Boughton), at $0.49 for a first class stamp, the cost will be $301.35 per round of notice. This, of course, doesn’t include the cost of the paper or printing or the staff to put together the mailings or the costs that will be incurred by each of the 615 entities who will receive and process the notice each month or the costs associated with any notices that might be produced by local jurisdictions if they elect to send additional notices.

We are not making any of this up; this cynical and downright Kafkaesque bureaucratic nightmare is the handiwork of America’s “party of small government.” What’s more, it’s not even clear at this point that the AOC’s once-per-month mailing workaround will satisfy conservative legislative leaders.

The bottom line: It’s one thing – as American conservatives have traditionally done – to maintain strong suspicions of taxes and big government. It’s quite another be so fanatical, cynical and Machiavellian as to be willing to intentionally undermine core public structures and systems and cause harm to the citizenry in order to abet an ideological crusade.

Unfortunately, as events like this continue to demonstrate more and more, this is the dark reality that caring and thinking Americans must grasp and, ultimately, overcome in the era of Trump.

If nothing else, at least we know what the score is.