Many civil liberties and civil rights organizations rightly point out that the practice of jailing people for unpaid fines and fees is turning our criminal justice system into a de facto debtors’ prison,, reported The American Conservative.
The Marshall Project’s Eli Hager says debtors’ prisons are “any prison, jail, or other detention facility in which people are incarcerated for their inability, refusal, or failure to pay debt.” They’ve been outlawed by Congress since 1833 (Dickensian times), at least in theory. In 1983, the Supreme Court ruled in Bearden v. Georgia that judges must first consider whether a suspect is “willfully” refusing to pay a fee before locking him or her up for failure to pay.
Even aspects of our criminal justice system that are typically thought of as free for the indigent aren’t really free at all. For example, in 2014, NPR found that suspects in 43 states and the District of Columbia were required to pay public defender fees. The initial application fee can run anywhere from $10 to $400; additional reimbursements after the case is settled can cost thousands of dollars.
If let out of prison, the suspect has more than just the public defender to compensate. For example, if the alleged criminal is required to take drug tests, they must pay for that. If they are put under house arrest, they must pay rental fees for an ankle bracelet. These fees vary from state to state, but typically add up to hundreds and even thousands of dollars.
The question still remains: how have judges legally been able to sentence poor citizens for failure to post collateral? The answer lies in the vague nature of the Supreme Court’s ruling in the 1983 Bearden case.
In the majority opinion, the Court ruled, “The State may not use as the sole justification for imprisonment the poverty or inability of the probationer to pay the fine and to make restitution if he has demonstrated sufficient bona fide efforts to do so.”
The problem here arises from the fact that the court never explained what constitutes “sufficient bona fide efforts.” With such a vague ruling, judges have been left with the discretion to determine whether suspects make legitimate efforts to pay the fees or not. Such a standard is arbitrary and ripe for abuse by judges who want to seem “tough on crime.”
NPR’s investigation also found “wide discrepancies” in how judges make determinations as to whether suspects have tried to pay or not.
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