Much has been written about the growing income inequality in the United States. However, an issue that receives much less attention is how income inequality has resulted in justice inequality. A recent report entitled “The Poor Get Prison: The Alarming Spread of the Criminalization of Poverty” by Karen Dolan of the Institute for Policy Studies noted, “Poor people, especially people of color, face a greater risk of being fined, arrested, and even incarcerated for minor offenses than other Americans. A broken taillight, an unpaid parking ticket, a minor drug offense, sitting on a sidewalk, or sleeping in a park can result in jail time” (tinyurl.com/y8jrr4fn). In other words, poverty is often treated as a criminal offense.
As Peter Edelman points out in his book Not a Crime to Be Poor: The Criminalization of Poverty in America (New Press, 2017), punishing the poor has been part of the United States since its founding with the use of almshouses, workhouses, and poorhouses. The country’s attitude toward the poor moved in a more positive direction during the New Deal era with the creation of Social Security, unemployment insurance, and fair labor standards. In the 1960s the Lyndon Johnson administration expanded government assistance programs, and the poverty rate fell by 11.1 percent. Sadly, however, the progress made during the War on Poverty did not last, and the poverty rate continues to rise.
An increase in negative attitudes toward the poor that began with the Great Recession of the 2000s has spilled over into the criminal justice system with what seemed to be a systematic effort to punish people for being poor. Local municipalities have increased fees, fines, and court costs for minor infractions, which for the poor proved to be daunting to meet while only a mere inconvenience for those with money. The number of minor infractions that could result in fines, fees, and court costs has increased as well. Because of the disparate impact these measures have on the poor, they have resulted in what has become known as the “criminalization” of poverty. Many of the city and county governments that have instituted these measures did so presumably to increase revenue to local coffers that were cash-strapped following the Great Recession.
Criminalization does not address the real causes of poverty, such as lack of affordable housing, lack of health care, and lack of a living wage. Instead, measures meant to raise revenue through low-level offenses make it much more difficult for an individual or family to move out of poverty, and may, in fact, drive them further into it. A study conducted by the Sentencing Project entitled “Americans with Criminal Records” concluded that “Mass incarceration and hyper-criminalization serve as major drivers of poverty; having a criminal record can present obstacles to employment, housing, public assistance, education, family reunification, building good credit, and more” (tinyurl.com/ya42m49g).
Far from being a benefit to municipalities, criminalizing poverty is costly. The cost to a city’s or county’s law enforcement agency, court system, and detention centers far outweighs what is brought in through fines and fees, especially because many who have these fines and fees imposed on them have no ability to pay.
That’s a Crime?
Criminalization of poverty can occur in two ways. In some instances, as with individuals who are homeless, an act itself is criminalized (e.g., begging or loitering). In other cases, it is an inability to comply with the consequences of being accused of or arrested for a crime that is criminalized (e.g., cash bail requirements, exorbitant fines and fees).
Homelessness, like punishing the poor, has been a part of the fabric of the United States since its beginning, but it was not always an object of scorn and derision. For a period of time in the late 1970s and early 1980s, homelessness was the cause of choice among anti-poverty activists, with nationally promoted efforts such as Hands Across America and Comic Relief. But as the number of homeless grew, the problem of homelessness became more visible. The lack of affordable housing, lack of adequate health care, lack of a living wage, and lack of adequate mental health services, among other things, contributed to the proliferation of individual panhandling and sleeping on the street or in homeless encampments, especially in large urban areas. As a result, many municipalities ceased viewing people who were homeless as human beings in need of an array of social services to help them end their homelessness. Instead, according to Gregg Barak in his book, Gimme Shelter: A Social History of Homelessness in Contemporary America (Praeger, 1991), the homeless became a “dreaded cultural entity not unlike inhabitants of penal colonies or madhouses.” Cities turned to the criminal justice system to deal with “the problem” and began instituting measures that targeted the homeless by making it illegal to perform life-sustaining activities such as sleeping, eating, and sitting in public.
In particular, two “infractions” that target the poor and homeless are city ordinances prohibiting panhandling and sleeping in public. Why municipalities choose to focus on these activities is unclear because both have been shown time and time again to be protected under the Constitution.
Panhandling has been held, under a First Amendment freedom of speech analysis, to be a protected activity. Everyone has a right to ask for help. Courts around the country have found that municipalities cannot target speech solely based on its content or form. For example, in the decision Reed v. Town of Gilbert, 576 U.S. (2015), the U.S. Supreme Court ruled that government regulations curtailing free speech have to be as narrow as possible and must fulfill a “compelling governmental interest.” Since that decision was rendered, all 25 of the 25 anti-panhandling ordinances challenged in court have been found unconstitutional, and more than 30 additional cities have repealed anti-panhandling ordinances.
Even though anti-panhandling ordinances do not stop “offenders” from engaging in the practice or end a person’s homelessness, cities continue to come up with creative ways to criminalize a person’s right to ask for help. For example, in Charleston, South Carolina, since the city ordinance prohibiting panhandling was challenged as an unconstitutional violation of free speech, the city repealed the ordinance and has enacted new ordinances under the guise of public safety that are clearly targeted to prevent panhandling. The penalty if found guilty of panhandling is now 30 days in jail or a fine of up to $1,092. To address these practices, in August 2018 the National Law Center on Homelessness & Poverty initiated a panhandling campaign where local organizations around the country sent a coordinated letter to government officials in cities where panhandling is banned to demand the repeal of such restrictions on free speech.
In another effort to criminalize poverty, cities enacted ordinances banning sleeping in public places. The National Law Center on Homelessness & Poverty surveyed 187 cities across the country and found that, between 2006 and 2016, ordinances prohibiting sleeping in public increased by 31 percent. However, a recent court decision may put an end to these types of ordinances. In Martin v. City of Boise, 2018 U.S. App. LEXIS 25032 (9th Cir. Sept. 4, 2018), the Ninth Circuit Court of Appeals found, “As long as there is no option of sleeping indoors, the government cannot criminalize indigent homeless people for sleeping outdoors, on public property, on the false pretense that they had a choice in the matter.”
The court found that punishing a person for sleeping in public is no different than punishing a person because he or she is homeless—a punishment that is in direct contradiction to the Eighth Amendment’s prohibition on cruel and unusual punishment. Rather than pursue the criminalization of a behavior that is protected by the Eighth Amendment, municipalities would be better served by investing the funds spent on enforcement in efforts to prevent homelessness in their communities.
The Catch-22 of Cash Bail
While panhandling and sleeping in public are acts that are criminalized, the poor often suffer the indignity of further criminalization after the fact through cash bail and fees, fines, and court costs. Jailing people who have been charged but not convicted of a crime because they cannot afford to post bail, or jailing people who cannot pay exorbitantly high fines and fees for minor offenses, has resulted in the creation of a new debtors’ prison in this country.
Robert Kennedy articulated the problem in the 1960s: “What has been demonstrated here is that usually only one factor determines whether a defendant stays in jail before he comes to trial, and that factor is not guilt or innocence, the nature of the crime, the character of the defendant, but how much money the defendant has.”
Policies resulting in the criminalization of poverty have continued to grow since Kennedy’s time. Reagan-era tax cuts resulted in revenue gaps for city, state, and local governments. In response to lower revenues, municipalities facing budget cuts to their justice systems instituted policies that made those who used the court system, primarily the poor, pay for that use. This shifting of the financial burden through the increase in fines and fees, together with the adoption of “broken windows” theory of law enforcement, led to the mass incarceration of poor people. Currently, on any given day more than half of the jail population in the United States is composed of people who have not been convicted but are instead awaiting resolution of their charge and cannot afford to post bail.
Cash bail, the money a defendant is required to pay to the court as a guarantee that he or she will appear at trial, is used in a wide range of offenses. However, the amount of bail required for low-level offenses has increased since the early 2000s. The majority of the poor do not have the money to pay for the services of a bail bondsman, much less pay the full bail amount. Simply put, no matter whether they are innocent or guilty, people with money make bail, people without money do not. Those who make bail get to return to their families, jobs, and responsibilities, while those who cannot make bail not only cannot work and get paid while they languish in jail, but they risk losing their jobs entirely. And if they cannot afford to make bail, they cannot afford to pay others to take care of their responsibilities to their children and others in their family, which may have a ripple effect of sending the entire family deeper into poverty. In some jurisdictions, the backlog of criminal cases and shortage of public defenders means defendants may be held pretrial for months on end, resulting not only in job loss but loss of housing. Defendants facing months of pretrial incarceration are under tremendous financial pressure to plead guilty, regardless of the merits of the case, to avoid financial catastrophe for themselves and their loved ones.
Even if indigent defendants somehow make bail, if they are then sentenced for even minor offenses, they are burdened with high fines, fees, and court costs that often continue to punish them long after their sentence is over. While fines are primarily punitive, fees and court costs are designed to reimburse the government. Many local governments have turned to private for-profit companies to collect unpaid fines and fees, and these companies add their additional fees onto a person’s debt. As a result, collection costs continue to increase, and when they are not paid, the defendant’s wages may be garnished and driver’s license suspended, and ultimately a warrant may be issued for failure to pay. Additionally, the time in pre-trial detention can result in unexpected and unreasonably high costs for items such as making phone calls, services that again have been outsourced by cash-strapped municipalities to private contractors that charge exorbitant fees.
Often the decision to incarcerate an individual for failure to pay fines or fees is done without determining the individual’s ability to pay. The U.S. Supreme Court in Bearden v. Georgia, 461 U.S. 660 (1983), held that it is unconstitutional to imprison someone who cannot afford to pay his or her debt or restitution in criminal cases. Despite the ruling in Bearden v. Georgia, people living in poverty continue to be jailed for not paying their fines and fees. They are then assessed additional fines and fees, which they cannot afford to pay, and the cycle continues. What is overlooked is that the cost to the local government and the taxpayer for incarcerating a person for nonpayment is higher than the fees and fines that could be paid over time if the person were allowed to be free and employed rather than in jail.
What Can Be Done?
There are many tangible and affordable strategies that can be used to address the criminalization of poverty. In 2017 the ABA Commission on Homelessness and Poverty developed a tool kit for communities to develop and operationalize local anti-poverty agendas (tinyurl.com/y7zu42o6). In the section of the tool kit that addresses the disproportionate involvement of the poor in the criminal and civil justice system, the Commission proposes a number of strategies, such as reducing or eliminating fees, fines, and lengthy incarcerations assessed against criminal defendants who are poor or homeless; reforming or eliminating bail requirements for low-level offenses; enforcing the legal rule in Bearden v. Georgia that debtors cannot be incarcerated merely for the act of not paying their debt; opposing the arresting of the poor for criminal justice debt before a debt hearing can take place to determine one’s ability to pay; creating “homeless courts” that replace traditional sanctions such as fees, fines, and incarceration with voluntary participation in treatment and services aimed at addressing the root causes of homelessness; advocating against the passage of (or for the repeal of) local ordinances that result in criminalization of quality-of-life activities; and making petty crimes civil instead of criminal offenses.
Since the 2016 election, many of these reforms have been added to the platforms of progressive politicians and electoral candidates, and progress has been made in some areas. For example, several jurisdictions, including New York City, have moved to reform or eliminate cash bail requirements.
Policies that criminalize the poor are costly, consume substantial community resources, and at times are unconstitutional. To create new policies that are effective and efficient requires not only alternative strategies, such as problem-solving courts that focus on the underlying causes of criminal activity, but also a response from lawyers that addresses both the legal and nonlegal obstacles that impede a person who is living in poverty from breaking free of the criminal justice system.
The idea that lawyers have a major role to play in these matters is not a new one. In the December 1, 1987, issue of the ABA Journal, then–ABA President Robert MacCrate wrote, “Lawyers occupy a special relationship to the public. They are in a real sense public servants and their profession a public calling. We cannot in America have laws which apply only to those who can afford a legal fee. In return for our special status at the bar, we owe a duty to see that the legal system functions for the common good. It fails, unless it provides justice for all.” The sentiment expressed by President MacCrate then is even more critically important today.