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.