“Waiving the Waiver”: Low-income Defendants Forced to Choose Between Plea Deals and Court Debt
Written by Grace Coolidge, Northwestern University, Class of 2025.
In 2018, Governor Rauner signed the Criminal and Traffic Assessment Act (CTAA) into Illinois law, aiming to simplify and standardize court fees and assessments across the state. The CTAA was also intended to protect low-income defendants, offering the possibility of fee waivers, similar to those available in civil courts. The Act stipulates, “If the court finds that the applicant is an indigent person, the court shall grant the applicant a full assessment waiver exempting him or her from the payment of any assessments.”
There is no language in the Act that prohibits the fee waivers for defendants who take plea agreements. In their 2023 recommendations report, the Illinois Supreme Court Statutory Court Fee Task Force finds that in some districts across the state, defendants are required to waive their right to seek an assessment and fee waiver in order to get a plea deal. The Task Force advises reform to the CTAA (specifically, section 124A-20) to prohibit this practice because it “(a) saddles defendants with debt they cannot afford to pay, (b) increases the variation, from county to county, in terms of the availability of assessment waivers, and (c) defeats the purpose of allowing such waivers.”
SB 2447, currently being considered by the Illinois legislature, would clarify that plea bargains cannot be conditioned on the “waiver of the [fee] waiver,” as this conflicts with the purpose and writing of the statute (that states that waivers “shall” be granted to indigent persons—there is no room for discretion). Chicago Appleseed supports this bill in an effort to curb the collateral damages from a system that delays and denies freedom to people based on wealth.
In the United States, about 98% of criminal cases are settled through plea agreements. An overloaded docket, scarcity of resources, and over-criminalization create the perfect storm for a legal system that values efficiency over justice. Cases resolved by pleas move quickly without having to go through an adversarial procedure at the cost of a dangerous level of prosecutorial discretion and a lack of protection for defendants. The racial disparities of the criminal legal system are highlighted in this dynamic, with 95% of elected prosecutors being White and Black people imprisoned at five times the rate of their white counterparts. With favorable sentencing dependent on taking plea deals, State’s Attorneys have outsized power to get a defendant to bargain away their right to seek a fee waiver. Because more than 80% of defendants in the state, and 85% in Cook County, are unable to afford counsel (and therefore qualify as indigent), this issue has the potential to impact a large set of people and vary greatly across jurisdictions, contrary to the goals of the CTAA.
It’s critical that the practice of conditioning pleas on a waiver of the assessment waiver be prohibited with an amendment to the CTAA. Amending the CTAA will bring uniformity to its implementation across the state, ensure that all defendants (whether they wish to go to trial or accept a plea) benefit from the CTAA, and fully enact the purpose of the statute: to stop funding our criminal courts from the pockets of poor people prosecuted in them.
Debt from the criminal legal system is a massive barrier to reentry, with social and economic consequences. Research has indicated that court fees charged to indigent defendants have neither caused nor deterred new crime. Instead, court assessments and fees contribute to further punish and criminalize low-income defendants, subjecting them to increased surveillance and court involvement by way of warrants and collection efforts by the court. Penalties for failing to pay costs also include “prolonged supervision, driver’s license suspensions, and incarceration.” Mary Patillo and Gabriela Kirk refer to “layaway freedom,” cases of defendants being able to manage their financial court debt only by “externally imposed, involuntary, or last-resort entry into financial engagements.” Waiving the right to a fee waiver for the sake of a plea bargain is just another example of poor people facing state predation, and such coercion perpetuates the cycle of poverty.