Current Issues Relating to Offender-Based Funding

Enforcement of Surcharges

Resistance. Many states have found courts reluctant to order convicted offenders to pay penalties and surcharges and to collect the penalties and surcharges that would be used to support victim services. Courts indicate that imposing and collecting penalties slows the judicial process and burdens court personnel with additional duties. Some state laws specifically provide that such fees can be waived. For instance, New Hampshire allows the court to suspend all or part of the penalty assessment if it “would work a hardship on the person convicted or on such person's immediate family.”²⁸

Strengthening laws. Other states have attempted to strengthen their laws regarding ordering and collecting offender fees. Several have taken the New York approach, which provides that “under no circumstances shall the mandatory surcharge or the crime victim assistance fee be waived.”²⁹ A few states have provided the means to enforce the imposition and/or collection of such penalties. Pennsylvania's law provides that “the district attorney, the bureau [of victim services], the commission [on Crime and Delinquency], or any direct victim . . . shall have standing to seek a mandamus order requiring the county to collect the costs imposed.” The Pennsylvania statute also provides that the costs must be paid before the defendant can be eligible for probation, parole, or accelerated rehabilitative disposition.³⁰

Strong enforcement. Texas has even stronger enforcement provisions that apply to the collection of costs for victim compensation and could be applied to the collection of costs to fund victim services. Under Texas law, if the attorney general has reason to believe that a court has not been assessing costs due, or has not made an effort to collect costs, the attorney general must send the counsel a warning letter. The court must respond to the charges within 60 days. If the court does not respond or the attorney general considers the response inadequate, the attorney general may request an audit of records. If the evidence indicates the court is not assessing costs or making a reasonable effort to collect costs, the attorney general may refuse to award compensation to residents of that jurisdiction or may notify the State Commission on Judicial Conduct of the findings. Failure or refusal to order and collect costs is official misconduct and constitutes grounds for removal from office.³¹

Competing Interests

Although offender penalties are an equitable way to fund crime victim assistance programs, they can face competition. The payments for victim services can be adversely affected as legislatures look to offenders to shoulder more and more of the costs of the criminal justice system, such as prison room and board, maintenance of DNA databanks, and indigent offender defense funds. To protect these funds, many states have provided that victim services and/or compensation assessments have priority over payments for other court costs. However, restitution to direct victims usually retains the highest priority over other assessments.³²