Debate over social inequities of mass incarceration in the United States typically centers on race and the disparate impact on communities of color. For years, the rate of incarceration for African Americans in the United States has been exponentially higher than of whites or Latinos. However, one commonality of those ensnared in the criminal justice system should be equally disturbing. In a 2014 report entitled Modern Day Debtor's Prisons, the American Civil Liberties Union found that 80-90% of individuals charged with felonies were poor. When looking at incarceration on non-indictable, municipal matters, the numbers of poor people are also disproportionately represented. Despite the fact that debtors’ prisons were abolished in 1833, recent practices of imprisoning the poor for failure to pay financial obligations have been proliferating.
Harvard history professor Jill Lepore poignantly recounts in The New Yorker the history of debtors’ prisons where the enmeshed market and moral economy has always clashed and competed to the detriment of the poor. Despite the proverb ‘a prison pays no debts’, Lepore describes how imprisoning and threatening to imprison debtors had been leveraged for centuries. Charles Dickens-like images are conjured of the huddled poor languishing for months, days, years waiting for friends or families to satisfy their creditors and win their freedom. In 1787, the Society for the Relief of Distressed Debtors investigated the status of those incarcerated and found that of the 1,162 debtors committed to debtors’ prison in New York City in 1787 and 1788, 716 owed less than twenty shillings. Fast forward two hundred years, history is repeating itself. In 2013, New Jersey found that twelve percent of its jail population was being held because they could not make a $2,500 or lower bail to secure their release and approximately 800 inmates held in custody could have been released for $500 or less.
One hundred and fifty years after debtors’ prisons were abolished, the poor continued to be imprisoned for failing to pay outstanding debt necessitating the U.S. Supreme Court to rule in Bearden v. Georgia that debtors can only be incarcerated if the act of not paying their debt or restitution was “willful." However, unfair court practices have been routinely discovered across the United States that continue to burden poor defendants with insurmountable legal financial obligations and churn them through jails for failure to pay without regard for their ability to pay. The American Civil Liberties Union’s report In for A Penny reviews five states; Louisiana, Ohio, Michigan, Georgia, and Washington and repeatedly finds low income individuals jailed for failing to keep up payments on legal financial obligations (LFOs) despite their inability to pay. The ACLU defines LFOs as fines, child support, restitution, court costs, monthly community supervision fees, interest associated with extended payment plans, and additional incarceration costs that are often tacked on to criminal-justice involved people.
In for a Penny is replete with examples of individuals who were homeless, disabled, ill and mentally ill, all of whom lacked the financial means to pay their debt who ended up not only incarcerated but most times additionally financially penalized for failing to pay. The ACLU reports one woman, Ora Lee Hurley, was found “in violation of probation and sentenced to a jail diversion facility for a minimum of 120 days, or until she paid back her $705 fine from a 1990 drug possession conviction. Ms. Hurley remained locked up for eight months after she completed her 120-day sentence solely because she was unable to pay her fine”. Another young woman with mental illness was put on probation in Georgia as a juvenile after stealing school supplies and her mother was paying her $40 monthly probation supervision fee. When she turned 17, she was transferred to adult probation and fell behind on appointments and court appearances. She was violated on probation and incarcerated until her mother was able to pay $4,000 to have her released. Her violation also caused her social security disability income to be revoked.
The Brennan Center for Justice’s Criminal Justice Debt: A Barrier to Reentry looked at fifteen different states with the highest prison populations that together account for 60% of all state filings. They too found that “although debtors’ prisons are illegal in all states, re-incarcerating individuals for failure to pay debt is in fact common in some- and in all states new paths to prison are emerging for those who owe criminal justice debt.”
Criminal Justice Debt Accrues at Every Stage of a Criminal Proceeding
Source: Brennan Center for Justice Criminal Justice Debt: A Barrier to Reentry 2010
The Brennan Report identified that all fifteen states imposed fees that attach upon conviction, they impose parole, probation or other supervision fees, and have laws that authorize the imposition of jail or prison fees. Thirteen of the states extended probation for debt and eight of the states suspended driver’s licenses to punish for nonpayment. What was most illuminating is that many states impose fees for access to a public defender. Indigent clients without means to pay can and do go unrepresented even in the face of imprisonment.
With an estimated 10 million owing a 50 billion in criminal justice debt coupled with an incarceration rate that outpaces the rest of the world, examining the recommendations for reducing the paths to continuously jailing the poor is a moral and fiscal imperative. The ramifications for perpetuating unjust and unconstitutional court practices are significant. Lepore suggests that it is not hard to make an argument against debtors’ prisons. An examination of costs; hidden, human, and financial, will hopefully illuminate a path to reform.
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