Saturday, May 18, 2013

GateHouse: Debtors’ prison thriving in America

Matthew T. Mangino
GateHouse News Service
May 17, 2013

As policymakers look for ways to generate revenue to fund the growing costs of the criminal justice system, an insidious practice has taken root in courtrooms across the country.

Indigent offenders are being strapped with enormous debt and then being jailed if they don’t pay. In 2010, the Brennan Center for Justice issued a report on Florida’s reliance on fees to fund its courts.

Since 1996, Florida added more than 20 new categories of financial obligations for criminal defendants and, at the same time, eliminated most exemptions for those who cannot pay. The process of cranking up fees to pay for courts became known as “cash register justice.”

The report concluded that the "current fee system creates a self-perpetuating cycle of debt for persons re-entering society after incarceration." Not to mention the court-related debt that lands some people in prison for the first time.

Some states apply "poverty penalties," such as late fees, payment plan fees and interest, when people are unable to pay all their debts in a lump sum, reported CBS News Moneywatch. Alabama charges a 30 percent collection fee, for instance, while Florida allows private debt collectors to add a 40 percent surcharge on the original debt. In North Carolina people are charged for using a public defender, so indigent defendants who cannot afford an attorney are forced to face jail time without counsel.
Things are even worse in some Ohio counties.
According to a recent report prepared by the ACLU, The Outskirts of Hope, the inability to pay a fine in Ohio is “the beginning of a protracted process that may involve contempt charges, mounting fees, arrest warrants and even jail time.”
In some Ohio counties offenders are being jailed because they are too poor to pay fines.  That is a violation of federal and state law and the perpetuation of an antiquated and draconian process known as “debtors’ prison.”
In the second half of 2012, over 20 percent of all bookings in Ohio’s Huron County Jail were related to failure to pay fines, according to the ACLU.  During the same time period Erie County jailed 75 people for failure to pay and Parma Municipal Court in Cuyahoga County jailed 45 people.
Nearly 30 years ago, the United States Supreme Court ruled that courts cannot properly revoke a defendant's probation for failure to pay a fine and make restitution, absent evidence that the defendant was willfully refusing to pay. If a court initially determined a fine was the appropriate penalty for the crime, the court could not later imprison a person solely because he lacked the resources to pay the fine.
It appears that some courts fail to make the crucial distinction between defendants who have the means to pay their debts but don’t, and those who are too poor to pay. Some suggest that the failure derives from the lack of consistent legal standards for determining willful nonpayment of court-imposed fines.
That is not the case in Ohio. The Ohio Constitution explicitly prohibits debtors’ prison, and the concept is further prohibited by statute and case law.  The procedure is clearly defined in Ohio and many other states. Before jailing an individual for failure to pay fines a judge must conduct a hearing where the individual is represented by counsel and has the opportunity to present evidence regarding her ability to pay the fine.
These practices are not just now being revealed. A 2010 report, In For a Penny: The Rise of America's New Debtors' Prisons lamented,  "[D]ay after day, indigent defendants are imprisoned for failing to pay legal debts they can never hope to manage." Three years later in Ohio, and across the country, people continue to be jailed because they’re simply too poor to pay.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at and follow him on Twitter at @MatthewTMangino.

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