Across the country, criminal defendants face court-assessed fees that cover administrative costs. In at least forty-three states (including California) and the District of Columbia, defendants may be charged for costs associated with retaining a public defender. In Washington state, defendants are charged for impaneling a jury for their trials, preparing trial transcripts, and receiving records on appeal. Many states (including California) have “pay to stay” plans, where jails charge defendants for “room and board,” including while they are in jail awaiting trial.

This Note focuses specifically on court-assessed user fees. User fees are “itemized payments for court activities, supervision, or incarceration charged to defendants determined guilty of infractions, misdemeanors[,]or felonies.” These fees are intended to fund the administration of justice in courtrooms. Part I of this Note provides background on the state of the law regarding the assessment of court fees and the barriers to justice they impose. It provides an overview of United States Supreme Court jurisprudence on the subject and its recent application in a series of cases in California. Part II argues that imposing administrative user fees on indigent criminal defendants without regard for their ability to pay violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Finally, Part III argues that these constitutional provisions require courts to hold ability-to-pay hearings before assessing user fees against criminal defendants and discusses the need for better, more concrete guidance on considering a defendant’s ability to pay.