November 30, 2019 HUMAN RIGHTS

Criminal Justice Debt Problems

by John Mathews II and Felipe Curiel
"We have a system of justice that treats you better if you're rich and guilty than if you're poor and innocent." — Bryan Stevenson

"We have a system of justice that treats you better if you're rich and guilty than if you're poor and innocent." — Bryan Stevenson

The Problem—Criminalization of Poverty Overview

In the United States, wealth, not culpability, often shapes outcomes. From what is defined as criminal behavior to how penalties are decided, our legal system punishes people who are poor in America far more often and more harshly than the wealthy.

No person in America should be locked up because they are poor. Yet, every day we see homeless people arrested for sleeping outside; parents who can’t afford to purchase their release from jail; and people who cycle in and out of jail because they can’t afford to pay old fines as their debt grows from new ones. Meanwhile, cities and counties fill their coffers from the fines and fees that are imposed on people who are struggling just to survive. We need a criminal justice system that puts people over profit and helps to make vulnerable people more stable, not less stable.

Pretrial Detention and Poverty

Kalief Browder, a 16-year-old from the Bronx, was imprisoned in Rikers Island for three years, two of them in solitary confinement, because he couldn’t afford his $3,000 bail. His alleged crime: stealing a backpack in 2010. Browder killed himself not long after he was released, traumatized by his time in prison.

The number of Americans sitting in jail without a conviction is larger than most other countries’ entire incarcerated population. After an arrest—wrongful or not—a person’s ability to leave jail and return home to fight the charges often depends on money. In most states, people are required to pay cash bail. Originally, bail was to ensure an individual’s return to court to face charges against them. However, money bail or cash bail has led to a form of wealth-based incarceration in which people of color and the less affluent languish in jail while they await trial. As many as 500,000 people are held across the country in local jails because of their inability to pay bail, mostly for low-level offenses.

Pretrial detention has a disproportionate impact on communities of color. Nationwide, more than 60 percent of jail inmates are jailed pretrial; over 30 percent cannot afford to post bail. Blacks and Hispanics are much more likely to be held on bail than white individuals. Often, those being held on bail have simply been accused of low-level offenses; for instance, 75 percent of pretrial detainees have been charged with only drug or property crimes.

Pretrial detention also has collateral consequences: It leads to people losing their jobs, not being able to care for their children, and losing contact with loved ones. Holding people in jail who do not pose a significant safety risk also exacerbates overcrowding, creates unsafe conditions, and places a huge financial burden on taxpayers. A study out of Kentucky found that people who are held because they cannot afford bail are 40 percent more likely to commit another low-level offense. In other words, jailing people who cannot pay bail is criminogenic.

People are also more likely to be acquitted if they pay bail, in part because they are less likely to take plea deals just to get out of jail. Being released before trial closely correlates with a not-guilty verdict, suggesting that the system is not punishing the most guilty, but rather the people who cannot afford to pay for their release. One study suggests that those people are “over three times more likely to be sentenced to prison” and “over four times more likely to be sentenced to jail” than those who are not detained pretrial. Similarly, a study from Columbia Law School found “significant evidence of a correlation between pretrial detention and both conviction and recidivism.”

Jail is expensive. Incarcerating individuals awaiting trial costs taxpayers $13.6 billion each year. This is especially wasteful in light of effective, low-cost ways of ensuring that defendants appear at trial, including a simple notification system that reminds people of their court dates.

Prosecuting Poverty is Wrong

A man was arrested for standing at an Atlanta intersection holding a sign reading “homeless please help” and then was illegally jailed for more than two months because he couldn’t afford to pay $200 bail. Meanwhile, it cost the county almost $6,000 to keep him in jail.

Beginning in the ’80s and increasingly used in the ’90s, a controversial “broken windows” philosophy of policing was implemented in several cities across the United States. Under this criminological theory, visible signs of crime (such as public intoxication, sleeping outside, disturbing the peace, and loitering) created an environment that further encouraged crime and disorder, including more serious crimes. Prosecuting “quality of life” crimes would, under this approach, lead to a reduction in the incidence of more significant crimes. Decades later, however, many see this approach as no longer effective, and prosecutors across the country are questioning whether a different model of community policing should be utilized instead.

Hundreds of jurisdictions across the United States have criminalized homelessness, and laws criminalizing homelessness have multiplied in the last 10 years in 187 studied cities. Over half these cities prohibited camping, sitting, or lying down in certain areas, and a third banned these activities citywide. Cities often outlaw these practices without providing additional shelter beds.

Individuals who have been saddled with criminal records for engaging in survival activities like sleeping on the street face steeper challenges finding jobs, housing, or other benefits like food stamps, thus perpetuating the cycle of homelessness. Under federal law, people who have spent more than 90 days incarcerated lose their “chronic homelessness” status and are no longer a priority for permanent housing.

Fines and Fees are Devastating for Poor People

In Georgia, a man stole a can of beer worth $2 from a corner store. The court ordered him to wear an ankle monitor for a year. A company charged him so much money that he eventually owed more than $1,000. In order to keep up with his payments, he sold plasma, but he fell behind and the judge jailed him for non-payment.

Since the unrest in Ferguson, Missouri, in 2014, public awareness of the harms of fees and fines associated with the criminal justice system has grown substantially, along with an understanding of the large scope of the problem. To help cover the high operating expenses of the criminal justice system—correctional, judicial, and law enforcement expenditures combined cost about $900 per capita each year—many states and localities rely on fees and fines to fund their courts, criminal justice agencies, and even government activity wholly unrelated to public safety. These included fees for ankle bracelets for monitoring, anger management classes, drug tests, crime victims’ funds, crime laboratories, court clerks, legal representation, various retirement funds, and private probation companies that do nothing more than collect a check every month. For those who are poor, these fees can be catastrophic. One estimate puts fine and fee revenues collected by state and local governments at more than $15 billion per year (U.S. Census Bureau 2012; Hamilton Project calculations). In jurisdictions throughout the United States, monetary payments for infractions, misdemeanors, or felonies typically do not consider a defendant’s inability to pay and are instead determined based on offense type, either statutorily or through judicial discretion. These practices entrench poverty in communities across the country, especially minority communities.

In 2014, National Public Radio conducted a yearlong investigation that included more than 150 interviews with lawyers, judges, offenders in and out of jail, government officials, advocates, and other experts. It also included a nationwide survey—with help from New York University’s Brennan Center for Justice and the National Center for State Courts—of which states are charging defendants and offenders fees. Below are some of the findings:

  • Justice-involved people are charged for a long list of government services that were once free—including ones that are constitutionally required.
  • Impoverished people sometimes go to jail when they fall behind paying these fees.
  • Since 2010, 48 states have increased criminal and civil court fees.
  • Many courts are struggling to interpret a 1983 Supreme Court ruling protecting defendants from going to jail because they are too poor to pay their fines.
  • Technology, such as electronic monitors, aimed at helping defendants avoid jail time is available only to those who can afford to pay for it.

The United States Supreme Court in Bearden v. Georgia, 461 U.S. 660 (1983), held that courts cannot imprison a person for failure to pay a criminal fine unless the failure to pay was “willful.” Bearden v. Georgia held that a judge must first consider whether the defendant has the ability to pay but “willfully” refuses. However, courts across the country continually ignore this constitutional principal. In reality, judges rarely check a person’s economic status, and, for the most part, people have no lawyer to assist them in asserting their rights.

Survey—Federal and Local Responses to Criminal Justice Debt Problems

In an effort to address criminal justice debt problems, we will examine several examples of federal and local responses to this challenge. In New Jersey, for example, almost three years have passed since a bail reform law took effect that changed how judges decide pretrial detention, and none of the fears opponents cited—recidivism, spikes in crime, and failures to appear—have materialized. In Boston, a candidate for district attorney successfully campaigned on a platform of declining to prosecute low-level “quality of life crimes.” Likewise, several states have begun outlawing the commercialization of the criminal justice system through fines and fees, and there are calls for an increased role for the federal government in such reform efforts.

Cash Bail—New Jersey

On January 1, 2017, the New Jersey Criminal Justice Reform Act took effect, essentially eliminating the monetary bail system in state courts. The legislation, passed under then-Governor Chris Christie in 2014, was spurred by a March 2013 analysis of the New Jersey jail population by the Drug Policy Alliance that found that approximately 1,547 people (12 percent of the entire jail population) were held solely because they could not afford $2,500 or less in bail.

Championed by Christie, the chief justice of the New Jersey Supreme Court, and countless lawmakers, the overhaul aimed to benefit poor people too destitute to pay even small bail amounts and also empower judges to keep particularly dangerous individuals behind bars before trial. Under this risk-based system, monetary bail was to be rarely used. Judges were to no longer issue money bail to every criminal defendant and instead decide whether defendants should remain in jail before their trial based on the risk posed to the public. Lower-risk individuals would no longer be detained prior to trial for lack of financial resources. On the other end of the spectrum, higher-risk defendants determined to pose a danger to the community or pose a substantial risk of flight would no longer be able to ensure their pretrial release with bail funds. The idea was to reform New Jersey’s jail population to have fewer people in jail, with only the highest-risk defendants and those charged with the most serious offenses detained pending trial.

In just its first year of enactment, the reform legislation resulted in a 20.3 percent decline in the pretrial jail population within the state. From January 1, 2016, through 2017 (which includes the period during which prosecutors began changing their detention recommendations in anticipation of the new legislation), the pretrial detention rate fell 35.7 percent. Preliminary crime statistics from the New Jersey State Police showed no major bump in violent offenses across New Jersey, and actually showed a drop in rates for many serious crimes. Still, after the killing of a New Jersey man by a defendant out on pretrial release prompted a federal lawsuit against the Christie administration by Duane Chapman (otherwise known as “Dog the Bounty Hunter”), critics of the legislation were still unconvinced.

Two years after the implementation of the law, however, a clearer picture was presented of the legislation’s results. The New Jersey judiciary released its second annual report to the legislature and governor on the state’s historic bail reform law. Key findings of the report included:

  • A decline in the state’s pretrial jail population by 43.9 percent since December 31, 2015.
  • 5,600 fewer men and 600 fewer women incarcerated pretrial in 2018 (compared to 2012).
  • In 2018, only 102 defendants had money bail set for them, out of a total defendant population of 44,383.
  • Court appearance rates were high under both systems, with an average appearance rate of 92.7 percent in 2014 and 89.4 percent in 2017.
  • No significant increase in new offenses committed by defendants on pretrial release under bail reform. In 2014, 12.7 percent of defendants were charged with a new indictable crime while on pretrial release; in 2017, the number was 13.7 percent.
  • The number of summons issued to defendants (in lieu of custodial arrests) increased from 69,469 in 2014 to 98,473 in 2017.
  • 81.9 percent of defendants were released within 24 hours of arrest and 99.6 percent were released within 48 hours of arrest.

The report confirmed that the overhaul of the New Jersey bail system allowed the pretrial jail population to decline precipitously while failing to produce the increase in crime predicted by critics. Defendants under the new system were no more likely to commit a new offense or fail to show up for a court appearance than defendants released under the prior system of monetary bail. The use of bail in New Jersey is now largely relegated to people who fail to appear in court or otherwise violate the conditions of pretrial release set by a judge.

Rethinking Quality of Life Crimes—Boston

Much of the reform in the criminalization of poverty space is happening in prosecutors’ offices, as more district attorneys across the country seek to tackle mass incarceration. In July 2018, Rachel Rollins was running for Suffolk County district attorney when she released a list of certain crimes that she indicated she would defer prosecution upon if elected. These so-called “quality of life” crimes included trespassing, shoplifting, larceny under $250, receiving stolen property, disorderly conduct, disturbing the peace, and drug possession with intent to distribute. In a November 2018 interview with the Boston Herald, Rollins reiterated that the District Attorney’s Office needed to put its focus and resources on violent offenders in order to keep the community safe. Instead of jail, she argued for looking at other ways to hold individuals accountable to for their actions, including through community service, graduation from substance abuse programs, civil stay-aways, and more.

Rollins’s promises to reform criminal justice and reduce racial biases in the system resulted in her landslide victory—39 percent of the vote in the primary and 73 percent in the general election. In late March 2019, Rollins released her long-awaited policy memo (the “Rollins Memo”), a data-driven document that spelled out in greater detail the reforms that she had campaigned on. Still, Rollins continues to be a lightning rod for Boston’s law enforcement and political establishments—despite a data analysis by the American Civil Liberties Union of Massachusetts showing that a majority of the cases involving charges on Rollins’ decline-to-prosecute list were diverted or dismissed by the former district attorney. A little over 10 months into her four-year term, Rollins’s first months in office show her fulfillment of her campaign promises, which many will continue to watch.

"Several states have begun outlawing the commercialization of the criminal justice system through fines and fees."

"Several states have begun outlawing the commercialization of the criminal justice system through fines and fees."

Fines and Fees—State and Federal

In 2018, California became the first state to ban all fees for incarceration, court appearances, probation, or drug testing. The state of Washington also passed similar legislation, and bills have been introduced in Nevada and Maryland. In Colorado, Governor Jared Polis signed a bill into law (SB 191) earlier this year that removed many of the fines and fees around bond and bail. Other legislation has been introduced in several states—New York, North Carolina, Montana, Mississippi, Tennessee, and Virginia—that would end the practice of revoking driver’s licenses for unpaid fines and fees. Similarly, after reviewing their fee collection practices, Leon County in Florida closed its Collections Court and terminated 8,000 outstanding arrest warrants; Orange County, also in Florida, likewise cancelled outstanding nonpayment warrants for transient residents after a similar review.

By comparison, there has been little federal attention paid to the issue. The Department of Justice’s efforts to address fines and fees began with its investigation into the city of Ferguson, and it continues its enforcement efforts to ensure that other states and municipalities are not acting contrary to the Constitution. At the legislative level, a bill was introduced in Congress in April 2019 that sought to set the national standard for ending the practice of charging youths with administrative fees, public defender fees, and other charges. The bill, called the End Debtor’s Prison for Kids Act, would authorize up to $500 million in annual federal funds for mental and behavioral health programs in exchange for ending the practice of juvenile justice fees.

Conclusion

By disproportionately impacting those with little means, monetary bail systems, penalties, and fees have generated concerns about the fairness in the criminal justice system for the poor and for people of color. The examples above are indicative of a growing conversation of reform and a critical eye toward the status quo. Still, even reform-minded jurisdictions recognize that plenty of work remains to fix the racial disparity among incarcerated people. For instance, although New Jersey’s jail population dropped by 44 percent between the end of 2015 and 2018 as a result of eliminating cash bail, these changes had little impact on racial disparity among incarcerated people: Black men made up 54 percent of New Jersey’s jail population in 2018, the exact same share as in 2012, long before the elimination of cash bail. And more can certainly be done from the federal side, with many activists encouraging the Department of Justice to issue findings and report from jurisdictions beyond Ferguson to underscore the point that harm from reliance on municipal fines and fees are not unique to Ferguson and require further, national-level reform efforts. Overall, however, the conversation continues to move toward a critical evaluation of our criminal justice system, and one that strives for a more equitable and fair administration of justice.

FINES AND FEES—STATE AND FEDERAL

In 2018, California became the first state to ban all fees for incarceration, court appearances, probation, or drug testing. The state of Washington also passed similar legislation, and bills have been introduced in Nevada and Maryland. In Colorado, Governor Jared Polis signed a bill into law (SB 191) earlier this year that removed many of the fines and fees around bond and bail. Other legislation has been introduced in several states—New York, North Carolina, Montana, Mississippi, Tennessee, and Virginia—that would end the practice of revoking driver’s licenses for unpaid fines and fees. Similarly, after reviewing their fee collection practices, Leon County in Florida closed its Collections Court and terminated 8,000 outstanding arrest warrants; Orange County, also in Florida, likewise cancelled outstanding nonpayment warrants for transient residents after a similar review.

By comparison, there has been little federal attention paid to the issue. The Department of Justice’s efforts to address fines and fees began with its investigation into the city of Ferguson, and it continues its enforcement efforts to ensure that other states and municipalities are not acting contrary to the Constitution. At the legislative level, a bill was introduced in Congress in April 2019 that sought to set the national standard for ending the practice of charging youths with administrative fees, public defender fees, and other charges. The bill, called the End Debtor’s Prison for Kids Act, would authorize up to $500 million in annual federal funds for mental and behavioral health programs in exchange for ending the practice of juvenile justice fees.

 

CONCLUSION

By disproportionately impacting those with little means, monetary bail systems, penalties, and fees have generated concerns about the fairness in the criminal justice system for the poor and for people of color. The examples above are indicative of a growing conversation of reform and a critical eye toward the status quo. Still, even reform-minded jurisdictions recognize that plenty of work remains to fix the racial disparity among incarcerated people. For instance, although New Jersey’s jail population dropped by 44 percent between the end of 2015 and 2018 as a result of eliminating cash bail, these changes had little impact on racial disparity among incarcerated people: Black men made up 54 percent of New Jersey’s jail population in 2018, the exact same share as in 2012, long before the elimination of cash bail. And more can certainly be done from the federal side, with many activists encouraging the Department of Justice to issue findings and report from jurisdictions beyond Ferguson to underscore the point that harm from reliance on municipal fines and fees are not unique to Ferguson and require further, national-level reform efforts. Overall, however, the conversation continues to move toward a critical evaluation of our criminal justice system, and one that strives for a more equitable and fair administration of justice.

FINES AND FEES—STATE AND FEDERAL

In 2018, California became the first state to ban all fees for incarceration, court appearances, probation, or drug testing. The state of Washington also passed similar legislation, and bills have been introduced in Nevada and Maryland. In Colorado, Governor Jared Polis signed a bill into law (SB 191) earlier this year that removed many of the fines and fees around bond and bail. Other legislation has been introduced in several states—New York, North Carolina, Montana, Mississippi, Tennessee, and Virginia—that would end the practice of revoking driver’s licenses for unpaid fines and fees. Similarly, after reviewing their fee collection practices, Leon County in Florida closed its Collections Court and terminated 8,000 outstanding arrest warrants; Orange County, also in Florida, likewise cancelled outstanding nonpayment warrants for transient residents after a similar review.

By comparison, there has been little federal attention paid to the issue. The Department of Justice’s efforts to address fines and fees began with its investigation into the city of Ferguson, and it continues its enforcement efforts to ensure that other states and municipalities are not acting contrary to the Constitution. At the legislative level, a bill was introduced in Congress in April 2019 that sought to set the national standard for ending the practice of charging youths with administrative fees, public defender fees, and other charges. The bill, called the End Debtor’s Prison for Kids Act, would authorize up to $500 million in annual federal funds for mental and behavioral health programs in exchange for ending the practice of juvenile justice fees.

 

CONCLUSION

By disproportionately impacting those with little means, monetary bail systems, penalties, and fees have generated concerns about the fairness in the criminal justice system for the poor and for people of color. The examples above are indicative of a growing conversation of reform and a critical eye toward the status quo. Still, even reform-minded jurisdictions recognize that plenty of work remains to fix the racial disparity among incarcerated people. For instance, although New Jersey’s jail population dropped by 44 percent between the end of 2015 and 2018 as a result of eliminating cash bail, these changes had little impact on racial disparity among incarcerated people: Black men made up 54 percent of New Jersey’s jail population in 2018, the exact same share as in 2012, long before the elimination of cash bail. And more can certainly be done from the federal side, with many activists encouraging the Department of Justice to issue findings and report from jurisdictions beyond Ferguson to underscore the point that harm from reliance on municipal fines and fees are not unique to Ferguson and require further, national-level reform efforts. Overall, however, the conversation continues to move toward a critical evaluation of our criminal justice system, and one that strives for a more equitable and fair administration of justice.

John Mathews II is senior legal counsel for The Justice Collaborative, an independent, nonpartisan research and advocacy organization devoted to reforming the criminal justice system and building healthier and safer communities.

Felipe Curiel is a recent graduate of the University of California at Irvine and currently a research assistant at The Justice Collaborative. He is interested in pursuing a career in criminal justice and attending law school.