Sunday, January 3, 2016

Ending Modern Day Debtor's Prison

by Tamar Birckhead Tamar R. Birckhead

Recently, the U.S. Department of Justice (DOJ) launched an effort to combat practices of local criminal justice systems in which public officials, law enforcement officers, and judges collude to incarcerate people for minor offenses in order to generate revenue.

On December 2, 2015, DOJ lawyers convened a meeting of academics, state officials, and civil rights advocates to explore how the federal government can assist them in preventing these types of constitutional violations in state and local courts.

This follows the March, 2015, release of an extensive investigative report by DOJ’s Civil Rights Division, revealing that Ferguson, Missouri, officials has engaged in such practices.  Yet, despite the recent scrutiny of Ferguson’s municipal court system, change in Ferguson and elsewhere has been incremental.

From Colonial times until the mid-1800s, it was common practice in the United States to jail people who failed or were unable to pay their debts, a practice that many, including the Supreme Court, have since recognized as a violation of people’s rights to due process and equal protection.

But while “debtors’ prisons” may sound like a relic of a bygone era, today the practice has made a disturbing return in the form of court costs and “legal financial obligations” that many people caught in the criminal justice system are unable to pay, creating insurmountable financial burdens for already-struggling families.

Across the United States, including here in North Carolina where I teach and practice law, people convicted of even minor criminal charges, such as loitering, littering, and unpaid traffic tickets, face an array of fees, court costs, and other forms of criminal justice debt that can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, extra fines and interest for late payment—and ultimately incarceration.

As I’ve written here before, these modern day debtors’ prisons enact devastating costs on vulnerable people who are unable to pay their fees, as well as the criminal justice system as a whole, which has had to create an extensive infrastructure to turn court and correctional officials into collection agents, diverting resources from their intended purpose.

In North Carolina, these court fees have been steadily rising—far outpacing the rate of inflation—over the past two decades.  All defendants, regardless of their income level, are required to pay general court fees, which are currently $173 in district court and $198 in superior court.  If these fees continue to increase at the same rate, they will exceed $500 by the year 2025.  Such general fees are only a fraction of the over 100 different “legal financial obligations” or “LFOs” that can be levied on criminal defendants in North Carolina, which include a $60 appointment of counsel fee, a $250 community service fee, and a $25 criminal record check fee.

People of color and those with low-income are particularly harmed by these practices. Those who are already living at the margins of society frequently incur criminal-justice debt as a result of minor, nonviolent offenses that in many instances stem from the criminalization of poverty. There is also evidence that implicit racial bias has led to disproportionate fees being imposed on people of color by judges and court administrators.

In 1970, the U.S. Supreme Court concluded in Williams v. Illinois that extending a prison term for an inability to pay criminal-justice debt violated the Fourteenth Amendment’s Equal Protection Clause, and in 1983 in Bearden v. Georgia, it barred a court’s revocation of probation for failure to pay a fine without first inquiring into a defendant’s ability to pay. Yet, jurisdictions continue to ignore or skirt the edges of these requirements and consider almost every failure to pay willful.  Some courts even impose a “fines or time” alternative sentence that forces defendants to “choose” between jail and immediate payment in full.

With millions of low-level offenders filling U.S. jails and prisons due (both directly and indirectly) to unpaid LFOs, private probation companies and the state and federal corrections agencies to which they supply goods and services have all thrived while the inmate population has expanded. Likewise, private corporations such as Honda, Microsoft, Starbucks, and Target have increasingly relied on prison labor, as it is cheap and virtually liability-free for the employer. Even the privatization of youth confinement facilities is now widespread in the United States, with almost half of them privately operated, creating a built-in incentive for companies to increase the number of juveniles confined and lengthen the terms of their incarceration.  In short, everyone wins—except the impoverished person unable to pay off her criminal justice debt.

The proliferation of court fees, and the costs incurred by the state to collect them, has prompted some judges, politicians, and lawmakers across the U.S. to question whether the practice has gone too far.

For instance, New Jersey initiated a program in 2013 to encourage thousands of people who owe fines to appear at court sessions where judges reviewed files and ordered fee reductions. More than 4,500 people turned themselves in, and hundreds with unpaid court fees and fines were able to gain significant reductions.  Other states have implemented similar programs.

In North Carolina, judges can waive many fees, and other criminal statutes allow for lowering or modifying fees prior to payment in full. This does not mean, however, that these fees are regularly waived, and the state legislature has mandated that many fees, such as the application fee for a public defender, are not waivable.

It is encouraging that DOJ is making this issue a priority, although one hopes that they approach the issue aggressively and with purpose. Courts and lawmakers across the U.S. must do more to eliminate this two-tiered system of justice and bring an end to modern day debtors’ prisons.

justice systems, Poor, Prisons, Tamar Birckhead | Permalink


Glad to see this important issue tackled on the lawprofs blog. It's astounding how some of the municipalities are absolutely flaunting Bearden in not even holding an ability-to-pay hearing, let alone conducting the hearing properly.

One important issue that still needs to be sorted out for these civil proceedings is whether the right to counsel attaches. It's rather unfortunate that the answer can depend on exactly how the municipality initiates the proceeding (contempt, debt collection, enforcement of criminal judgment, etc.), and we still have to see how Turner v. Rogers potentially affects all of this. Ultimately, the key factor *should* be incarceration (as many federal and state courts said it was prior to Turner), rather than whether something is technically labeled "criminal" or "civil". And perhaps more state courts will say so under their state constitutions (some have already said as much).

Posted by: John Pollock | Jan 3, 2016 11:42:00 AM

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