November 22, 2019
Dear Justice Corner,
In the last column, you talked about civil fee waivers, but I hear criminal cases. Can you tell me more about the new criminal assessment waivers?
Dear Judge Whattowaive,
As of July 1st, 2019, the Criminal Traffic Assessment Act (CTAA) made a lot of changes to how fees (now called assessments) are assigned in criminal cases. One notable new provision is in 725 ILCS 5/124A-20 for assessment waivers. See also SCR 404.
The first thing to know is the definition of assessments: "any costs imposed on a criminal defendant under Article 15 of the Criminal and Traffic Assessment Act, but does not include violation of the Illinois Vehicle Code assessments." This means that fines and restitution are not waived through this process, nor are any costs for traffic violations.
Similar to civil fee waivers, criminal assessments can be fully or partially waived based on the applicant’s available income compared to the current federal poverty level. Since this is a new provision, each court should have created a process to handle assessment waiver applications. There are statewide standardized application and order forms and the statute explains that the application for waiver must be filed no later than 30 days after sentencing.
The court must waive 100% of court fees for applicants who you find indigent pursuant to the definition of "indigent person" in the statute:
- Someone who receives one or more of the following means-based public assistance programs: Supplemental Security Income (SSI), Aid to the Aged, Blind and Disabled (AABD), Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), General Assistance, Transitional Assistance, or State Children and Family Assistance
- Someone whose available personal income is 200% or less of the current federal poverty level
- Someone who us unable to proceed with payment because payment would result in a substantial hardship to the applicant or the applicant’s family.
Additionally, Section (b)(2) obligates the court to grant partial fee waivers to patrons whose available income qualifies, based on the current federal poverty level. The statute mandates waivers, as outlined in the tables below:
Civil Fee Waiver 725 ILCS 5/124A-20
||Receives a means-based public benefit (regardless of income)
Payment would result in substantial hardship (regardless of income)
Available income up to 200% FPL
Available income between 200%-250% FPL
||Available income between 250%-300% FPL
||Available income between 300%-400% FPL
2019 Federal Poverty Level Annual Income
Please note, the Federal Poverty Level that qualifies someone as indigent for 100% waiver or for partial waivers is different than the levels for civil waivers. If you hear a court call with both civil and criminal cases, make sure to distinguish the FPL for each type of case.
If none of the above conditions apply, the court may deny the application for fee waiver. However, in doing so, you must state a reason for the denial on the order (SCR 404).
For more information about criminal assessment waivers, please review 725 ILCS 5/124A-20 and Illinois Supreme Court Rule 404. The Access to Justice Commission created a bench card about waivers as well as made charts for easy reference. If you would like any of those materials or have questions, comments, concerns, suggestions, or stories about self-represented litigants, please email firstname.lastname@example.org.
-Justice Corner, Illinois Supreme Court Commission on Access to Justice's Court Guidance and Training Committee
- Chair, Judge Jo Beth Weber, Jefferson County
- Presiding Judge Clarence M. Darrow, Rock Island County
- Presiding Judge Sharon M. Sullivan, Cook County
- Associate Judge Elizabeth M. Rochford, Lake County
- Chief Judge Michael Kramer, Kankakee County
- Justice Michael Hyman, 1st Appellate District
- David Holtermann, Lawyers' Trust Fund, Chicago
- Wendy Vaughn, Clinical Professor NIU, Member of Access to Justice Commission