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April 12, 2023 HUMAN RIGHTS

Criminalizing Poverty through the “Market in Incarcerated People”

by Atteeyah Hollie

Dan Colby is a Black restaurant worker and single caregiver of a teenage son and grandson. A few summers ago, police in north Georgia pulled Colby over for a broken taillight, which led to a driving without a license charge. Without counsel, Colby pled guilty to both charges in a misdemeanor court. The court imposed a $575 fine, and the judge asked if Colby could pay his fine before leaving court that day. Colby could not, and, for that reason alone, the court ordered him to serve 12 months of probation. With probation came a community service requirement, monthly reporting to a probation officer, and monthly supervision fees to a for-profit probation company. Colby’s inability to pay $575 on the day of court nearly doubled his court debt.

Nevertheless, Colby completed his community service hours the following month. He also made timely payments and reported as required for months. But things took an unfortunate turn when Colby had major back surgery that temporarily left him in a body cast. And then the restaurant where Colby worked closed, and he lost his job. His timely payments to the for-profit probation company stopped.

Colby explained to his probation officer that his limited income was preventing him from making payments. Rather than respond with empathy and help Colby develop a plan to find a new job, the officer went to the court and obtained an arrest warrant. In executing this warrant, sheriff’s deputies went to Colby’s home at 4 a.m., arrested him, and took him to jail for no other reason than his inability to pay fines and probation fees. Georgia’s Division of Family and Children Services arrived soon after, taking Colby’s son and grandson and putting them in foster care. The Atlanta-based Southern Center for Human Rights took legal action to prevent future arrests and family separations stemming from Colby’s court debt, and Colby’s probation was terminated as a result.

Though he no longer has to worry about the life-shattering effect of unpaid traffic fines, Colby’s experience reminds us that poverty traps people in our legal system long after conviction and too often for vehicle and traffic violations.

The roots of the criminalization of poverty date back to the Thirteenth Amendment.

The roots of the criminalization of poverty date back to the Thirteenth Amendment.


The Roots of Wealth-Based Injustice

The criminalization of poverty has become a hot-button issue in the last 15 to 20 years, but its roots date back to the Thirteenth Amendment. This watershed constitutional provision banned slavery “except as a punishment” for those convicted of a crime. With this devastating loophole, slavery morphed into another oppressive system—convict leasing—that derived free labor from Black people convicted of crimes ranging from murder to loitering, vagrancy, and not carrying proof of employment. Once convicted, poor Blacks had the false choice of either paying a court-ordered fine or slave labor (again). Unable to pay a fine, Black people convicted of a crime were forced into a system that replicated its predecessor’s brutality and money-making power. While convict leasing has ended, the system of mass incarceration that followed doesn’t look much different than the system it replaced.

Today, we have what some researchers call a “market in incarcerated people,” a catch-all term for the “financial incentives and legal mechanisms that enable mass incarceration revenue streams, federal policy mandates, administrative and municipal actions.” When we think about those ensnared in this market, we cannot forget the Colbys, who, though free, are one missed payment away from a jail cell. We are stripping people of their freedom for reasons that have nothing to do with their underlying offense. Rather, the major focus in determining whether a formerly incarcerated person can remain free is whether they can pay to stay out of jail or off probation.

Everyone Wants a Piece

Michael Brown’s death in Ferguson, Missouri, exposed a web of collusion between court and government officials who used court debt to pad local coffers. But to see how for-profit companies are profiting from crime, we need to look no further than Georgia, where probation companies were gifted with lucrative supervision authority in the state’s misdemeanor courts, courts that are largely not covered by the state’s public defender system.

Many of Georgia’s neighbors, including Alabama, Florida, and Mississippi, also invite profit-driven companies into their court systems. But Georgia is alone in the volume of people under probation supervision. Georgia has the highest rate of probation in the nation and the longest probation sentences. Moreover, as of 2020, private companies supervised 80 percent of Georgians on misdemeanor probation. And what do private companies stand to gain by supervising people on probation? Revenue, and lots of it. Millions of dollars per quarter.

There are two key reasons why probation is such an economic boon for for-profit companies:

  1. Georgia law criminalizes traffic violations and other minor offenses that most states treat as civil infractions. This means someone stopped for a broken taillight, like Colby, rolling through a stop sign or burning leaves in their yard without a permit can be sentenced to up to a year in jail. Many minor offenses carry fines of up to $1,000, plus hundreds more in surcharges.
  2. As we saw in Colby’s case, people who can’t pay immediately get sentenced to “pay-only” probation, under the guise of giving people experiencing poverty more time to pay. But, in the end, supervision fees and the costs of reporting to probation only increase their debt.

But as we saw in Ferguson, those profiting off the poor also can be found in our local governments. We have seen court debt and probation fees weaponized to deprive people of basic human needs, and the executors of wealth-based injustice serving as duly elected government officials. Take LaGrange, Georgia, for instance. For years, LaGrange conditioned access to water, electricity, and other basic utility services on the payment of municipal court fines, a practice that poor people of color disproportionately shouldered. According to SCHR’s investigation, 90 percent of the people who had fines attached to their utility accounts were Black. Fortunately, local residents harmed by this practice partnered with state and local NAACP branches to demand an end to this life-upending practice in federal court and won.

Wealth-Based Injustice Undermines Who We Say We Are

One selling point of the American criminal legal system is that once you’ve served your time, in whatever form that takes, you can fully return to society. But the monetizing of our system flips this idea on its head. By putting a price tag on a person’s freedom and their ability to leave the system, we are keeping people on the sidelines of society. As long as they owe some form of court debt, they will be stuck in an arrest, release, repeat cycle. And too many never leave their record behind.

Moreover, wealth-based injustice makes a mockery of equal protection. As Colby’s case makes painfully clear, people experiencing poverty are not only punished more often because of their poverty, but they ultimately pay more in fines and fees than people of means. We see this every day in Georgia, where people are placed on probation in misdemeanor courts for no other reason than their inability to pay fines on the day of court. With this correctional control comes fees they would have avoided entirely were they in a higher income bracket. Justice isn’t blind in America—its sights are too often hyper-focused on generating revenue, often on the backs of people who can least afford to be used as cash cows.

But it doesn’t have to be this way. Communities and states across the country are reimagining justice without price tags and taking small and large steps to divorce the scarlet letter of system involvement from one’s income. Delaware and Massachusetts recently eliminated probation supervision fees. Last year, Colorado did away with fines and fees for children and their families in juvenile court. Since 2017, 22 states and the District of Columbia have curbed the use of debt-related driver’s license suspensions and revocations, ensuring that people who can’t afford fines and fees aren’t further criminalized when they drive to work to pay said fines and fees. And in 2016, San Francisco became the first city in the nation to create a Financial Justice Project aimed at analyzing and curbing the impact of fines and fees on people experiencing poverty and people of color. Since launching this project, San Francisco has, among other things, waived $33 million in criminal legal system debt and administration fees for city residents, ensuring that people already living in crippling poverty don’t face further punishment because of their limited means.

The path forward is clear. We can either part ways with our age-old practices of criminalizing poverty or continue to only pay lip service to the constitutional ideals of fairness and equal justice that we supposedly hold so dear. Ending means-based injustice at all stages of the legal system can bring legitimacy, accountability, and hope to people seeking to be defined by more than their criminal records.

Mr. Colby’s name was changed for privacy purposes.

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Atteeyah Hollie

Deputy Director, Southern Center for Human Rights

Atteeyah Hollie (she/her) is the deputy director at the Atlanta-based Southern Center for Human Rights (SCHR). Prior to becoming deputy director, she worked as an investigator and attorney at SCHR on cases challenging the denial of the right to counsel for accused Georgians, illegally closed courtrooms, wealth-based injustice, and inhumane prison and jail conditions.