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April 12, 2023 HUMAN RIGHTS


by Adam B. Abelson

The United States has one of the highest rates of imprisonment in the world. As of 2021, the United States was incarcerating 350 out of every 100,000 U.S. residents (Bureau of Justice Statistics, Prisoners in 2021, Appendix Table 5). Imprisonment rates have decreased somewhat in the past decade: Between 2011 and 2021, the total number of individuals serving sentences in federal, state, and local prisons decreased 24.4 percent, from 1,538,847 to 1,163,665 (Id., Table 3). But these decreases followed a near quadrupling of the United States prison population between 1974 and 2014 (The Growth of Incarceration in the United States, National Research Council of the National Academies, 2014). And the trend has reversed: In 2022, the federal prison population again began rising (Federal Prisoner Statistics Collected under the First Step Act, Bureau of Justice Statistics, 2022).

These high rates of incarceration have had a devastating impact on communities of color. The population-wide incarceration rates described above, for example, mask massive racial disparities: In 2021, 181 out of every 100,000 white Americans, but 901 out of every 100,000 Black Americans, were incarcerated—an over fourfold disparity (Bureau of Justice Statistics, Prisoners in 2021, Appendix Table 5). As of 2017, one out of every three Black men born then could expect to be incarcerated at some point in their lives, compared to one out of every 17 white men (Elizabeth Hinton et al., An Unjust Burden, Vera Evidence Brief, May 2018).

As of 2021, the United States was incarcerating 350 out of every 100,000 U.S. residents.

As of 2021, the United States was incarcerating 350 out of every 100,000 U.S. residents.


Those disparities play out at every phase of justice system involvement, from arrest through parole. When individuals are charged with crimes, the impact felt in the community goes far beyond the direct consequences of incarceration or the potential of incarceration. The economic and financial implications of being charged with a crime can be just as devastating as incarceration but often receive less attention from legislators, judges, lawyers, and the public. Criminal justice system involvement can be catastrophic even to individuals who never spend a day in jail. From the minute individuals are charged or booked, the meter (so to speak) often starts running, from booking fees, cash bail, pretrial monitoring fees, pretrial detention fees, court fees, court fines, and even public defender fees—often imposed without regard to individuals’ ability to pay.

The illustrious contributors to this issue of Human Rights are at the forefront of the economic issues in criminal justice. As chair of the American Bar Association (ABA) Working Group on Building Public Trust in the American Justice System, I am honored to submit this introduction to this issue on the critically important subject of the economic consequences of criminal prosecution.

Congress abolished debtors’ prisons in 1833, and 40 years ago, the Supreme Court ruled that a person cannot constitutionally be imprisoned “because, through no fault of his own, he cannot pay the fine”; “[s]uch a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.” Bearden v. Georgia, 461 U.S. 660, 672–73 (1983). Yet, as Tim Curry, the policy & research director of the Fines and Fees Justice Center, explains, “People all over the country are regularly incarcerated because they owe court debt stemming from a conviction, a traffic ticket, or some municipal infraction that they simply cannot afford to pay.”

Criminal justice debt has a way of snowballing—and no more so than for the poorest individuals caught up in the system. Atteeyah Hollie, the deputy director of the Southern Center for Human Rights, vividly illustrates this with the experience of a Black restaurant worker and single father. A broken taillight and misdemeanor traffic charge, to which he pled guilty—without counsel—meant a $575 fine. But because he could not pay the fine that day, he found himself on 12 months of probation, under supervision, and required to pay monthly fees for that supervision, which nearly doubled his court debt. Hollie also chronicles the racist origins of these types of court fines and fees, including the ugly history of post–Civil War convict leasing. Similar dynamics play out in jurisdictions that continue to rely on money bail, which “creates a two-tiered system of justice hiding in plain sight.” It “splits the criminal legal system into two separate and unequal processes: one for those who have money and one for those who do not,” as Nicole Zayas Manzano of The Bail Project explains. Manzano reports that data show bail is imposed more often, and at higher rates, when defendants are persons of color. And the types of fees that jurisdictions impose are myriad—including, as noted above, public defender fees. Contributor Rosalie Joy explains that even where indigent individuals are appointed a lawyer without having to “pay for one upfront,” many jurisdictions use recoupment proceedings to demand that individuals “pay for their representation after the case has been adjudicated”—often without regard to ability to pay, and even for individuals who are found not guilty or whose charges are dismissed.

Fees imposed on criminal defendants do not stop when they leave court. Lauren-Brooke Eisen, a senior director at the Brennan Center for Justice, explains that many prisons impose substantial fees on incarcerated individuals and their families. Sometimes referred to euphemistically as “pay to stay” fees—authorized by at least 43 states as of 2014—they can balloon to amounts far more than a typical incarcerated individual can afford. The compounding of court fees, prison fees, parole fees, and the like leave returning citizens in even greater debt upon release. As Manzano notes in her piece, that economic impact is even further exacerbated by the fact that individuals who have been incarcerated—through pretrial detention or a prison sentence—face numerous obstacles to economic advancement.

And the consequences of unaffordable legal debt—which studies have shown disproportionately affect low-income communities of color—“can be dire,” as the Urban-Brookings Tax Policy Center’s Aravind Boddupalli and Elaine Maag explain. These include not just surcharge fees and high interest rates, which are exacerbated when individuals are forced to take out high-interest payday-type loans to cover the costs of daily living, but also bench warrants, driver’s license suspensions, loss of voting rights, and loss of jobs. And disproportionate harms of such debt on low-income individuals perpetuate racial disparities, as poverty rates for Black and Hispanic Americans (19.5 percent and 17.1 percent, respectively) are more than double those of non-Hispanic white Americans (8.1 percent) and Asian Americans (9.3 percent) (U.S. Census Bureau, Poverty in the United States: 2021). There are innumerable other ways individuals can be caught up in the criminal justice system because of poverty. Eve Garrow, a senior policy analyst and advocate at the American Civil Liberties Union of Southern California, explains how unhoused people can face criminal prosecution just for being unhoused—even though in many parts of the country affordable housing can be all but impossible to secure for many individuals and families. Contributors Farah Diaz-Tello and Sara Ainsworth also apply a similar lens to the Dobbs decision, explaining how “People have been criminalized for ending their pregnancies before, during, and after Roe,” but post-Dobbs laws proposed in a number of states risk a proliferation of economic and racial disparities when it comes to “protections from criminalization for pregnant individuals.”

The racial and economic disparities in charging decisions ripple through to the question of who is even permitted to return to the community. Jason D. Williamson, the executive director of the Center on Race, Inequality, and the Law at New York University School of Law, describes stark racial disparities in the rates at which prisoners in New York State are granted parole. “Changing our default question from ‘why release?’ to ‘why continue confinement’ is critical to ensuring the release of people who pose no risk to public safety.” As Williamson explains, “This shift is especially important for those serving indeterminate sentences with a maximum of life in prison, a disproportionate number of whom are Black or Latinx.”

There are wide-ranging but incremental reform efforts underway—some of which have borne fruit. The ABA has been a leader in highlighting the injustice of excessive court fees and fines, which often serve to perpetuate cycles of criminal justice system involvement and inhibit rehabilitation and successful reentry. Malia N. Brink, senior policy attorney at the Deason Criminal Justice Reform Center, explains that fines and fees, if imposed, must be administered to ensure that the justice system “does not punish people for the ‘crime’ of being poor,” as reflected in the ABA Ten Guidelines on Court Fines and Fees (Aug. 2018). As she explains, jurisdictions must be especially careful to impose guardrails around any privatization in the criminal justice system, for that same reason and others.

As Brink and Hollie explain, various states have abolished certain types of court fees and fines, and, in the past five years, 22 jurisdictions have reformed laws regarding driver’s license suspensions based on outstanding criminal justice debt. As Curry describes, states have taken other similar reforms as well, including prohibiting courts from issuing an arrest warrant for unpaid court debt (Delaware) and repealing certain court fees. And as Curry and Maag explain in their respective pieces, California has been at the forefront: It has enacted legislation to repeal many forms of fees imposed “for the cost of administering the criminal justice system,” including public defender fees, booking fees, electronic monitoring fees, parole supervision fees, work release administrative fees, and more.

Professor César Cuauhtémoc García Hernández of Ohio State University College of Law addresses a related area of reform. He explains that although the largest private prison companies continue to report billions of dollars of revenue, a growing number of financial institutions have announced policies to cease financing them. And as Professor Sam Kamin, Chauncey G. Wilson Memorial Research Chair at the Sturm College of Law, explains in his piece, even though many states have taken steps to legalize marijuana—in part to ameliorate some of the worst impacts of the drug war—even those efforts risk perpetuating racial disparities.

Similarly, at the ABA 2022 Annual Meeting, the ABA House of Delegates adopted, as official ABA policy, Resolution 604: Ten Principles on Reducing Mass Incarceration. The Ten Principles canvass existing ABA policy and recommend that jurisdictions comprehensively reevaluate criminal justice policies, from pretrial detention to parole and probation, and advise ways to reduce overly punitive and racially disparate incarceration policies without sacrificing public safety. Understanding and tackling these issues are critically important for the legitimacy and effectiveness of the criminal justice system. Many thanks to each of the preeminent contributors to this important issue of Human Rights.

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Adam B. Abelson

Partner, Zuckerman Spaeder LLP; Chair, ABA Working Group on Building Public Trust in the American Justice System

Adam B. Abelson, a partner at Zuckerman Spaeder LLP, is chair of the ABA Working Group on Building Public Trust in the American Justice System, which in recent years has promulgated the Ten Principles on Reducing Mass Incarceration and Ten Guidelines on Court Fines and Fees.