THE MISSISSIPPI LEGISLATURE

The Joint Committee on

Performance Evaluation and Expenditure Review

Report # 559

A Review of State Monetary Assessments Imposed on Criminal Fines and Penalties

Executive Summary

Introduction

In 1988, the Legislature established the state’s first criminal assessment, a fee of up to 85% of the face amount of a “bad” (worthless) check to be imposed on any person convicted of violating the state’s bad check and insufficient fund law and failing to comply with the terms of the restitution agreement. By 1990, the Legislature had added seven other state assessments to other criminal fines or penalties.

The legislative request for this review was based on concerns that state criminal assessments:

• have increased in number and dollar amount over time;
• are increasingly being levied to benefit activities and programs that do not adhere to the purposes of an abuser fee;
• are not being used efficiently and effectively to achieve their legislated purposes; and, as a consequence,
• are creating an increasing and unjustified burden on citizens.

Whether these concerns are warranted by the facts was the subject of this review. Further, the complainant had concerns about how criminal assessments are being imposed, collected, and distributed in accordance with state law. The PEER Committee reviewed all state criminal assessments1 that were in effect in FY 2010.

Background

A state criminal assessment is a fee that is imposed on an individual convicted of a crime and added to a criminal fine or penalty by state law.

The use of criminal assessments is based on the theory of the “abuser fee,” the purpose of which is to make a person convicted of a criminal violation bear certain burdens beyond those associated with merely paying a debt to society. In Mississippi, many state criminal assessments make the convicted person bear the costs of programs and services that are intended to cover some or all costs associated with programs intended to compensate victims, fund programs of prevention, or to recoup costs associated with the legal system.

As of June 30, 2010, thirty-eight funds, administered by seventeen state agencies, and the State General Fund were statutorily designated to receive state criminal assessments.

Receipt of Revenues from State Criminal Assessments

MISS. CODE ANN. Sections 49-7-21, 63-1-71, 63-9-11, 63-11-30 (2) (a), 97-15-29, 97-19-67, 99-19-73, and 99-19-75 (1972) require local courts to impose the statutorily required state criminal assessments. However, MISS. CODE ANN. Sections 99-19-20, 47-1-1, and 47-1-3 give courts discretion in allowing defendants to pay fines and/or assessments in installments or through participation in public works programs. These practices delay the collection of some state criminal assessments or decrease the amount of money yielded from these assessments.

Although MISS. CODE ANN. Section 99-19-73 (10) (1972) requires court clerks to report to the Department of Finance and Administration the number of violations for each category of a violation from which they collect a state criminal assessment, the Department of Finance and Administration uses a form designed by the State Auditor’s office that simply requires court clerks to report the total dollar amount of all state criminal assessments collected for each category of a violation. As a result, DFA staff cannot reconcile total amounts of criminal assessment dollars remitted to DFA monthly with the reported number of violations for each month as required.

Historical Analysis of the State’s Utilization of State Criminal Assessments

Since FY 1988, the year that the first criminal assessment was imposed, the total dollar amount of all state criminal assessments combined has increased by $2,179.50. The majority of this increase ($1,688) was due to the statutory creation of twenty new state criminal assessments. The remaining $491.50 of the increase was due to changes required by statute in the dollar amounts of assessments.

The number of funds designated to receive state criminal assessments grew from one in FY 1988 to thirty-nine in FY 2010 to forty-four in FY 2011. The Mississippi Trauma Care Systems Fund received the largest increase in fund allocation ($45) over the period, followed by the Alcohol or Drug Abuse Treatment and Education Fund ($30).

In FY 2010, thirty-nine funds were designated by statutes to receive state criminal assessments. These funds received $45,258,231 in revenues from criminal assessments and expended a total of $36,671,457 from such assessments.

Conclusions Regarding State Criminal Assessments and the Funds that Receive Such Assessments

PEER drew the following conclusions from its analysis of state criminal assessments:

• The number of state criminal assessments increased from one in FY 1988 to twenty-one in FY 2011, and the statutory dollar amount of all of these assessments combined increased from $20 in FY 1989, the year that the state criminal assessment with a fixed dollar amount was imposed, to $2,039.50 in FY 2011. The number of funds designated to receive revenues from state criminal assessments increased from one in FY 1988 to thirty-nine in FY 2010 to forty-four in FY 2011. Thus the state has increased its use of state criminal assessments as a funding source for government programs. (See pages 53 through 54 of the report.)
• The Mississippi Office of the State Auditor’s Court Assessment/Fine Settlement Form is not designed to obtain from court clerks the number of violations for which state criminal assessments have been collected and remitted to the Department of Finance and Administration, as required by state law. This information is needed for reconciling the assessment revenues collected to the violations generating the assessments. (See pages 54 through 55 of the report.)
• From a historical perspective, the number of assessments allocated to uses that did not adhere to the theory of abuser fees has increased over time. In FY 2010, approximately $32 million in revenues from state criminal assessments (approximately 70% of all revenues from state criminal assessments) was allocated to uses that did not adhere to the theory of abuser fees. This raises the question of whether these uses of revenues place an undue burden on criminal offenders for funding the general operations of government. In at least one state, a legal challenge to the imposition of a state criminal assessment that did not adhere to the theory of abuser fees resulted in that state’s legislative body repealing the assessment. (See pages 55 through 58 of the report.)
• In FY 2010, state criminal assessments generated approximately $3.8 million in revenues for the State General Fund, contrary to the theory of abuser fees and with no capability to track these revenues’ specific utilization. (See pages 58 through 59 of the report.)
• The Department of Wildlife, Fisheries, and Parks and the Department of Health have not established special funds in the State Treasury to receive revenues from state criminal assessments, as mandated by state law. Failure to establish these funds as special funds in the State Treasury impairs oversight by external reviewers such as PEER. (See pages 60 through 61 of the report.)
• PEER identified a significant amount of unused revenues from state criminal assessments in FY 2010--at least $36 million from the thirty funds that received at least 90% of their revenues from state criminal assessments. While some administering agencies expressed legitimate reasons for needing at least a portion of these revenues for future use, in other cases the revenues did not appear to be needed. While this data is now outdated for purposes of trying to reclaim revenues from the funds, the data indicates the need to monitor funds receiving revenues from state criminal assessments to determine whether there continue to be unused revenues that could be put to a better use. (See pages 62 through 63 of the report.)
• From the performance indicators reported, it is difficult for the Legislature to determine what was accomplished with revenues from state criminal assessments. Thus the Legislature does not have all of the information needed to make decisions regarding possible future reallocation of revenues from state criminal assessments. (See pages 64 through 65 of the report.)

Recommendations

1. The Legislature should amend MISS. CODE ANN. Sections 63-1-71 and 63-11-30(2)(a) (1972) by replacing the language mandating that revenues from these state criminal assessments “be deposited into the State General Fund to the credit of a special fund hereby created in the State Treasury” with language mandating that the revenues “be deposited in a special fund hereby created in the State Treasury and designated the Alcohol or Drug Abuse Treatment and Education Fund.”
   
   Further, the Legislature should amend these CODE sections to specify an agency to administer the fund. While the current statutes impose these assessments, they do not specify which agency should administer the fund. Although Department of Finance and Administration staff have deposited these assessment revenues into a fund under the purview of the Department of Public Safety, the Department of Public Safety reported to PEER that it has not been expending revenues accumulated in this fund since at least FY 1996 (a complete history of the fund, which received its first assessment revenues in FY 1992, is unknown to current staff). Because of the Department of Public Safety’s lack of utilization of revenues in this fund and lack of expertise in the area of alcohol and drug abuse treatment, the Legislature should name the Department of Mental Health as the administering agency for this fund.
2. In order to comply with the mandate in MISS. CODE ANN. Section 49-1-65 (1972) requiring that state criminal assessment revenue allocated to the Hunter Education and Training Program be deposited into a special fund created in the State Treasury and designated the Hunter Education and Training Program Fund, the Department of Wildlife, Fisheries, and Parks should request the Department of Finance and Administration to establish the Hunter Education and Training Program Fund as a special fund in the State Treasury and should transact all program financial activities from this fund.
3. In order to comply with the mandate in MISS. CODE ANN. Section 49-59-61 (1972) requiring that state criminal assessment revenue allocated to the Emergency Medical Services Operating Fund shall be deposited into a special fund created in the State Treasury and designated the “Emergency Medical Services Operating Fund,” the Department of Health should request the Department of Finance and Administration to establish a special fund called the Emergency Medical Services Operating Fund in the State Treasury and should transact all program financial activities from this fund.
4. In order to comply with the mandate in MISS. CODE ANN. Section 93-21-117 (1972) requiring that state criminal assessment revenue allocated to the Victims of Domestic Violence Fund shall be deposited into a special fund created in the State Treasury known as the “Victims of Domestic Violence Fund,” the Department of Health should request the Department of Finance and Administration to establish a special fund called the Victims of Domestic Violence Fund in the State Treasury and should transact all program financial activities from this fund.
5. For purposes of helping to ensure external oversight of revenues from state criminal assessments deposited into the Mississippi Trauma Care Systems Fund, the Legislature should amend the language in MISS. CODE ANN. Section 41-59-75 (1972) stating “The Mississippi Trauma Care Systems Fund is established” to state “The Mississippi Trauma Care Systems Fund is created as a special fund in the State Treasury.” Further, the Department of Health should request the Department of Finance and Administration to establish the Mississippi Trauma Care Systems Fund as a special fund in the State Treasury and should transact all program financial activities from this fund.
6. In order to ensure that state criminal assessments are allocated to specified purposes that adhere to the theory of abuser fees, the Legislature should amend MISS. CODE ANN. Section 99-19-73, subsections: (2) Implied Consent Law violations; (3) Game and Fish Law violations; (6) Other misdemeanors; and (7) Other felonies to remove all allocations of state criminal assessments to the State General Fund and reduce the amounts of the assessments accordingly or reallocate the amounts to alternative specific uses that adhere to the theory of abuser fees. The amount of revenues from state criminal assessments lost to the State General Fund could be made up by allocating these assessments to alternative specific uses that adhere to the theory of abuser fees and are currently funded with state general fund revenues.
   
   A similar strategy could be followed to bring the sixteen other funds receiving revenues from state criminal assessments that are not in line with the theory of abuser fees (refer to Appendix, i.e., every criminal assessment in a fund where the level of adherence to the theory of abuser fees is a “0”) in line with the theory. More specifically, during the annual appropriations process, the Legislature could explore alternative uses of criminal assessments that adhere to the theory (e.g., providing funds to specific components of the state’s criminal justice system) and that would make available revenues to fund the uses from which the revenues from state criminal assessments are being taken away.
   
   In the event that the Legislature considers the imposition of additional state criminal assessments in the future, it should make sure that these assessments adhere to the theory of abuser fees in the relationship between the criminal violations generating the assessment revenues and the programs and activities that the assessment revenues are allocated to support.
7. The Legislature should require the Department of Finance and Administration to provide the Speaker of the House and the Lieutenant Governor with a report by September 15th of each year showing for each fund receiving revenues from state criminal assessments:
   
   
   • the fund balance at the close of the most recently completed fiscal year; and,
   • the total amount of revenues to and expenditures from the fund for the most recently completed fiscal year.
   The Legislature should use this report to identify those funds that are significantly underutilized as evidenced by the accumulation of large unexplained cash balances and/or annual revenues significantly in excess of annual expenditures. In each of these cases, the Legislature should consider whether to:
   
   
   • reallocate excess balances to other appropriate uses of criminal assessment revenues in accordance with the theory of abuser fees;
   • statutorily change the allocation of the assessment from the underutilized purpose to another purpose in line with the theory of abuser fees; and/or,
   • statutorily remove the amount of the assessment allocated to an underutilized purpose and reduce the total amount of the assessment imposed on the category of criminal violation generating the revenue.
8. The Office of the State Auditor should redesign its Court Assessment/Fine Settlement Form to facilitate court clerks’ reporting of the total number of violations by category from which assessments have been collected. To further ensure that statutorily mandated state assessments on criminal violations are being imposed and collected, the Office of the State Auditor should also require court clerks to maintain an auditable record supporting the state criminal assessment information provided pursuant to the revised Court Assessment/Fine Settlement Form.
9. The state agencies statutorily mandated to administer funds designated to receive state criminal assessments should develop outcome indicators for each fund amenable to outcome measurement. These indicators should measure what is being accomplished with revenues allocated to the fund, mirroring as closely as possible the example provided by the Legislative Budget Office in its budget instructions. In that example, an outcome measure for a program designed to educate drivers about the dangers of driving under the influence would report as an outcome measure “reduction in the number of traffic fatalities due to drunk drivers within a 12-month period.”

1  State criminal assessments are state monetary assessments imposed on individuals convicted of crimes and added to criminal fines or forfeitures/penalties. State criminal assessments are based on the theory of “abuser fees.” The purpose of an “abuser fee” is to charge an individual convicted of a specified criminal violation a fee to help fund a program designed to decrease occurrences of the violation or to address the harm inflicted by the violation, including the “harm” of costs incurred by the legal system in the handling of criminal violations.

PEER Home Page         Full Text PDF (1,089K)