Matthew T. Mangino
November 18, 2016
On Nov. 14, a new law went into effect in Pennsylvania allowing people convicted of certain misdemeanors to request the courts seal their records so they are only available to law enforcement, and not the general public.
Sounds like a good idea — a government initiative to help people get back into the workforce.
The following day, I walked into a Pennsylvania courthouse to file a motion to expunge a client’s criminal record. I learned, much to the chagrin of my client, the filing fee for an expungement increased from $54.50 to $132. The state on the one hand authorized the sealing of criminal records and on the other hand increased the cost of expungement by 250 percent.
While Pennsylvania cranked up the cost to clean-up a criminal record, most states, including Pennsylvania, have, and continue, to pile-on, when it comes to fines and court costs.
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 has become known as “cash register justice.”
In fact, some states apply “poverty penalties,” such as late fees, payment plan fees and interests, 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.
Attorney General Loretta E. Lynch recently urged leaders in the legal profession to overhaul court fees, fines and a money bail system that can lead to a cycle of debt, incarceration and poverty for those who cannot afford to pay, reported the Washington Post.
“When we begin to treat defendants as cash registers, rather than citizens, we do more damage to the fabric of our institutions,” Lynch told the Post. “We stain the sanctity of our laws. And we only tighten the shackles of those struggling to break the chains of poverty.”
Even some of the ideas to alleviate the burden raise some real concerns. Rather than jail for some who cannot pay fines, why not allow them to “work off” the debt? Under this system, an unemployed person works at a nonprofit or government agency in exchange for debt relief, not compensation.
So what’s the problem, asks the Los Angeles Times. The crucial point is that incarceration remains the consequence for not working to the court’s satisfaction. That puts tremendous pressure on workers. And when “pay or jail” becomes “work or jail,” that choice arguably violates the Constitution’s Thirteenth Amendment, which abolished slavery and involuntary servitude.
During the early years of the 20th Century, Alabama selectively prosecuted and convicted African Americans for minor crimes, imposed fines they could not afford and threatened to throw them in jail if they did not pay. The judge then offered a way out. A private employer would cover the fine if the defendant agreed to repay the employer through labor. If the worker later dared to quit, he could be prosecuted and convicted again, reported the Times.
In 1914, the United States Supreme Court struck down Alabama’s practice that kept a defendant “chained to an ever-turning wheel of servitude to discharge the obligation.”
Will Congress or state legislatures intervene to ease the burden on former offenders and their families, or will the courts have to do as was done more than a century ago, and right the wrongs of overzealous lawmakers?
— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.
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