Creators: The 'Poverty Penalty': No Cash, No Freedom

Matthew T. Mangino
Creators
March 18, 2024

A fundamental tenet of Anglo-American jurisprudence, dating back to the Magna Carta, is that all those accused of a crime are presumed innocent until proven guilty. Today, about four out of five people sitting in local county jails and municipal lockups have not been convicted of the crime that brought about their detention.

Every day across the country, thousands of people are locked up because they don't have money. The idea of "debtors' prison" has long been repugnant. However, the concept of "pay or go to jail" is still around. Whether it's getting locked up for not paying fines or penalties after a conviction, or not having the wherewithal to post bail pending trial — there are still a lot of poor people in jail.

In most jurisdictions, the difference between being charged with a crime and walking the street pending trial, or sitting in jail awaiting trial, comes down to cash. Those who have it stay out of jail; those who don't, stay in jail. Those unfortunate people without money for bail are at risk of losing their jobs, their homes and their families.

Every year, about 11 million people funnel through local municipal and county jails. According to the Prison Policy Initiative, between 1970 and 2017, the number of people incarcerated in the nation's 3,000-plus local jails ballooned — from 150,000 to about 720,000 per day.

The millions of people who go to jail each year are there, generally, for brief periods of time. Most are released in days or hours after their arrest, while others are held for months or even years — often because they can't afford to make bail, are unable to get a speedy trial, or can't gain timely access to a public defender.

Defendants accused of particularly serious violent crimes or who pose a credible threat to public safety may be detained in jail while awaiting trial. However, most defendants are entitled to pretrial release. Judges may impose conditions on a defendant's release, such as electronic monitoring or supervision through a pretrial services agency, but they are entitled to bail if they can afford it.

Correcting the bail crisis is not out of reach. This isn't about being tough on crime. It's about being fair. For some, even a nominal bond is out of reach. When an accused has no money, $1,500 might as well be $150,000.

Cash bail was historically intended to provide a financial incentive for defendants to show up at required court dates, but reforms adopted in the 1970s and 1980s allowed judges to also consider potential risks to public safety when making bail decisions. Cash bail can, under the right circumstances, be an appropriate tool for ensuring defendants cooperate throughout the pretrial period.

However, in most instances, cash bail creates a wealth-based, two-tiered system of pretrial detention. Those who can't afford bail suffer a "poverty penalty." No system of justice can endure when a person's wealth, or lack of it, can determine their freedom. Mariam Krinsky, executive director of the nonprofit Fair and Just Prosecution, said in 2019, "Common sense dictates that people should not be held in jail simply because they cannot afford a monetary payment." Yet the widespread use of cash bail continues.

Keeping an accused in jail for an extended period of time without trial creates other grievous problems in the criminal justice system. For instance, some inmates being detained pretrial, without the resources to post bail, see a guilty plea as their only path to freedom. Some defendants sitting in jail will take a plea offer, even if they're innocent, just to get out of jail. What could be worse than being locked up because you can't afford bail?

Pleading guilty to a crime you didn't commit to regain your freedom.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Fines, fees used to fund criminal justice too take a toll on poor

While the nation’s imprisoned population has declined since peaking in 2009, incarceration levels still remain extraordinarily high, reports the USA Today.

Continued efforts to lower incarceration rates will stall unless we address the role that revenue plays in the daily operation of police departments, courts, jails and prisons across the country. So much of these entities’ time and effort goes into generating revenue that the goals of pursuing justice and improving public safety often get pushed to the side.

A new Brennan Center for Justice report delves into the interlocking economic incentives that underpin our justice system. Many of these practices rely on a simple calculus: More people in the justice system means more dollars for agencies, governments and contracted for-profit firms

Some of the revenue streams flow straight out of the pockets of the people who are ticketed, searched, arrested, jailed, tried and sent to jail or prison, while others arise from a growing trade in bed space at correctional and detention facilities.

Michael Brown brought attention to Ferguson, Missouri

A 2020 study found that when a municipality increased the percentage of its revenue coming from law enforcement fines, fees and forfeitures, that rise was associated with statistically significant decreases in clearance rates (the ratio of arrests to reported crimes) for both violent and property crimes.

That is an unacceptable trade-off. It’s time for the government agencies involved in the criminal justice system at all levels to examine the revenue-generating parts of their work and its true costs, alongside the budget holes they are meant to fill.

In the face of shrinking state or federal monetary aid, eroded property and sales tax bases, and public distaste for tax increases, the pressure to bring in revenue has been intense, to put it mildly. Even so, every program, every policy that now privileges revenue over safety and justice can be realigned. The solutions to these problems exist. They just need people of courage to apply them.

The killing of Michael Brown in Ferguson, Missouri, drew national attention to user-funded justice – the city had pushed the police department and the courts to maximize funding potential of fines and fees. 

In fiscal years 2010 and 2011, about 12% of Ferguson's general fund revenue came from fines and fees. By fiscal year 2015, the city was budgeting for 23% of its revenues to come from fines and fees.

Civil asset forfeiture no longer hits just drug kingpins

Civil asset forfeiture, too, has metastasized into a major revenue source, going well beyond its onetime purpose of targeting drug kingpins. Law enforcement agencies seize and retain peoples’ cash, vehicles, homes and other items on a suspicion of their connection to an offense without having to prove the connection.

Take Minnesota’s Metro Gang Strike Force. An investigation revealed that its members were stopping and searching people who were clearly not involved in gang activity, and then taking or buying seized items for personal use – like televisions, tools, appliances and jet skis.

Law enforcement agencies have also been earning revenue from bed space. Some counties offer open beds in local jails to state or federal authorities whose own facilities are overcrowded, such as Immigration and Customs Enforcement and U.S. Marshals. Counties can arrange for the federal government to pay them to maintain a “guaranteed minimum” number of beds in their facilities. Some expand their facilities or build new ones to serve this market. Or they can act as intermediaries between federal agencies and for-profit firms, agreeing to house federal detainees and then subcontracting with a company that puts those people in their facilities. 

Rebalance the scales of justice   

While it is easy to agree that governments should not be extracting money from the most vulnerable, nor that agencies be rewarded for securing overly harsh punishments, the primary challenge to reform is that these financial motivations – and their budgetary effects – have become persistent and self-reinforcing. Nevertheless, we can rebalance the scales of justice, and we must. 

For example, policymakers can push back against the growing market in bed space and take steps to reduce correctional and detention populations safely. At the same time, where housing deficits still exist, negotiations and contracting should be subjected to increased transparency and accountability.

Lawmakers can also choose to eliminate civil asset forfeiture. Alternatively, states can redirect forfeiture proceeds away from law enforcement.

Legislatures can eliminate all fees, with outstanding debts automatically forgiven.

To realign our priorities, Congress, state legislatures, local governments and law enforcement agencies must work together to diminish the lure of existing financial incentives for agencies and municipalities that are often stretched too thin. The justice system should be funded equitably by taxpayers, all of whom are served by it – not primarily by the community’s poorest, most marginalized members.

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PublicSource: 'The true cost of court debt'

Every week, dozens of payment determination hearings are held throughout Allegheny County, Pennsylvania for people with outstanding fines and fees on offenses ranging from serious crimes to traffic tickets, reported PublicSource.

Even for something as minor as running a red light or driving with expired inspection stickers, not paying off the citation can result in an arrest warrant, a suspended license and, in extreme cases, jail time.

Throughout the county, there is more than $350 million in unpaid court debt on roughly half a million cases dating back to 1970, according to the Administrative Office of Pennsylvania Courts [AOPC]. The debt includes fines and fees left unpaid by people of all income levels.

Revenue from fines and fees funds multiple levels of government, due in large part to lawmakers imposing court fees as an alternative to raising taxes.

State Sen. Lisa Baker, R-Luzerne, is the Republican chair of the Senate Judiciary Committee. According to Baker, there are two reasons the state has added costs and surcharges to the justice system for years. First, the belief that wrongdoers should contribute to the costs of running the legal system and supportive services. And second, the need to generate revenue outside of raising taxes. “This is one of many nontraditional means that have drawn support in enabling our state to provide necessary services and meet public expectations,” she wrote in an email to PublicSource.

Over the past six months, PublicSource spoke to people throughout Allegheny County struggling to pay their court debt on a range of offenses.

One 33-year-old woman from South Side is slowly paying off four traffic tickets from 2009. She estimates she still owes $1,100.

A 46-year-old man who lives in the East End said he owes more than $20,000 in fines and fees related to low-level drug offenses. He is in long-term recovery and is working toward a degree in social work. His last arrest was in 2014.

A 20-year-old University of Pittsburgh student had a warrant issued for his arrest after he ignored an August 2019 citation for driving a friend’s car that didn’t have valid registration or inspection. He is now on a monthly payment plan to settle the $250 charge.

Evans Moore, a Pittsburgh-based organizer for the criminal justice reform organization Families Against Mandatory Minimums [FAMM], said situations where people cannot pay their court debt are too common. “Folks’ lives are being stymied because they can’t pay their fines and fees,” he said. “You get caught in this never-ending cycle of the criminal justice system.”

In 2018, Pennsylvania courts collected $444 million in fines and fees, roughly $35 million of which came from Allegheny County. Even so, the state has some $3 billion in unpaid monies on the books.

While fines are monetary punishment for an offense, fees (also known as costs or surcharges) are administrative charges that counties and states impose as additional sources of revenue. Fees, which fund items ranging from the court’s computer system to emergency medical services, are not meant to be punitive. Yet for many offenses, the cost of fees outweighs the fine, in some cases many times over.

Pittsburgh Magisterial District Judge Richard King said very few people are unable to pay their court costs; they choose not to. Courts can administer payment plans based on what a person is able to pay, sometimes as little as $5 a month.

“They usually always have an ability to pay like $5 a month or something, but they don’t want to do it,” said King whose jurisdiction includes neighborhoods such as Allentown, Beltzhoover and Knoxville.

Yet several judges, including King, agreed that the same cost can have a drastically different impact on different individuals. To people with means, paying $300 is only temporarily inconvenient, said Magisterial District Judge Bruce Boni of McKees Rocks. “But a $300 cost for someone who is virtually indigent can be catastrophic.”

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Jim Crow is back: The new Poll Tax, court costs and fines

Florida Governor Ron DeSantis, within months of being sworn in, signed SB 7066, a law requiring former felons to pay outstanding, court-ordered fees, fines, or victim restitution to the state before they can vote. In doing so, analysts say, DeSantis, a Republican, instantly disqualified some 1.4 million voters, reported the New Republic.

SB 7066 made national headlines and prompted a lawsuit from the American Civil Liberties Union; last week, a judge temporarily blocked the law. But Florida isn’t alone in requiring former felons to settle their debts if they want to vote. At least 30 states, from California to Mississippi, make paying court-ordered costs either a direct requirement for voting, an indirect one, or list it as a condition of receiving clemency, which would restore their access to the ballot box.

Proponents of these laws argue that lawbreakers should have to complete their court-ordered punishment—including financial penalties—before they can vote. But critics say the laws are just modern incarnations of poll taxes, designed to suppress the African American vote.

Amendment 4 was drafted to erase a Jim Crow-era law embedded in the state constitution, and passed with 64 percent of the vote. Despite that overwhelming support, the Republican-controlled legislature passed SB 7066 and DeSantis, in June, signed it. The governor and his allies argued that the law merely clarified ambiguous language in the amendment, which called for restoring former felons’ voting rights “after they complete all terms of their sentence including parole or probation.” SB 7066 specifies that “all terms” includes financial obligations.

But several studies released this year point out that SB 7066 and similar laws in other states suppress millions of votes—enough to potentially swing the outcome of a national election.

“Nearly six million individuals are denied the right to vote in the United States” due to a past conviction and an inability to pay a rising number of fines, fees, court costs, and restitution, according to the Civil Rights Clinic at Georgetown University School of Law. The Campaign Legal Center calls the practice “a modern poll tax as a precondition of voting” that falls disproportionately on the poor and people of color.

“It’s Disenfranchisement 101,” according to Carol Anderson, an Emory University historian and author of One Person, No Vote. She said these laws reflect an old political calculus, found mostly on the right: Stay in power by narrowing the electorate, and block African Americans and the poor from voting by any means necessary.

During the Jim Crow era, “the poll tax was about poverty,” she said. The modern-day laws tied to court cost are no different, she said: “To make it sound rational, they say, ‘Well, they just have to pay their court fines and fees—that’s all.’ But with the poll tax, they said, ‘They have to pay because democracy is expensive. Elections are expensive.’”

But DeSantis rejects this comparison, arguing that the fees and fines are part of an offender’s punishment. “The idea that paying restitution to someone is equivalent to a tax is totally wrong,” he told The Tampa Bay Times in May. “The only reason you’re paying restitution is because you were convicted of a felony.”

Laws connecting payments to voting rights dates back to the Reconstruction period after the Civil War. Whites in former slave states saw freed African Americans flex their new political muscle at the ballot box, sending scores of black representatives to state legislatures across the South, as well as to Congress. Alarmed at the threat, whites squelched the nascent political movement by enacting laws making voting contingent on proof of wealth, through poll taxes and property ownership.

Many of those laws remain on the books today. Eight states, including Alabama, Arkansas, and Florida, have laws explicitly requiring ex-offenders to pay all fines and fees known as Legal Financial Obligations (LFOs). Twenty states, including Minnesota and California, require settlement of outstanding LFOs as a term of completing probation and parole. In Alabama, besides paying LFOs, ex-felons have to fill out paperwork: a certificate of eligibility to register to vote. In Tennessee, they have to prove they’re current in child support payments.

Those financial requirements “fall particularly hard on poor people,” of all races, said Aderson Francois, director of the Civil Rights Clinic. But restoring voting rights only after criminal penalties are paid, he adds, “harms minorities in particular” because they are “overly represented in the criminal justice system, and overly represented in terms of poor people.”

These laws have led to an estimated 10 million people who “owe more than $50 billion in fines and fees related to criminal convictions,” according to the CRC’s report. And some jurisdictions see them as a way to fill state or municipal budget holes. “These LFOs include a variety of fines and fees assessed to generate revenue for various judicial and law enforcement expenses,” the report states, “but also debts for medical care incurred during incarceration and fees and legal costs imposed specifically on indigent defendants who are represented by public defenders.”

The Campaign Legal Center report found ex-offenders “owed an average of $8,195 in restitution alone,” a figure that doesn’t even calculate fines or fees, according to the report. “This returning population,” the report states, “is ill-equipped to pay these debts.” Ex-offenders struggle to find steady work because of their records. When they do land jobs, more often than not they don’t pay well enough to eliminate the debt.

This long-standing, racially motivated disenfranchisement “fundamentally calls into question whether or not we have the right to call ourselves a true democracy,” Francois said. Micha Kubic, executive director of the ACLU, noted that Amendment 4 “was the biggest expansion of the franchise since the 1970s. We’re also talking about large numbers of white voters who will be stopped for registering as well. I think it is instead an attack on democracy itself, an attack on the voters’ ability to make decisions for the state.”

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Indigent defendants crushed by court costs

Though poor defendants are entitled to be provided legal representation, that does not mean access to the justice system is free, reported the Philadelphia Inquirer.

Court fees — even for indigent defendants — average more than $1,000 per case across Pennsylvania. The median court costs imposed on indigent defendants in the region range from $537 in Philadelphia County to $1,652 in Delaware County, an ACLU of Pennsylvania analysis found. That’s in addition to fines and restitution the court may impose.

For those who spend years on probation or parole, as Hudson did, costs can pile much higher. In addition to assorted fees — $250 for a DNA detection fund, $50 toward the cost of prosecution, $8 for a judicial computer project, $5 for a firearm training fund — he was assessed almost $800 in supervision fees.

In many cases, these costs appear uncollectible: The ACLU found that among defendants poor enough to be assigned public defenders, court costs were paid in full in just 24% of cases over 10 years. Among non-public-defender cases, 54% had paid in full.

“It tends to be the people who are not paying are the ones who have no ability to pay,” Christy said.

In Philadelphia and other counties, public defenders have been campaigning over the last year for judges to waive court costs for indigent defendants, arguing they are obligated to take defendants’ means into account. That question is now before the state Superior Court, which ruled in September that judges did not have to do so — but recently, unprompted, withdrew that opinion, opting to put the question before a judicial panel for further review.

But costs and fines across Philadelphia and its four suburban counties brought in $273 million over the last 10 years, according to the Administrative Office of Pennsylvania Courts — making them a critical part of courts’ budgets.

And, in some local counties, judges routinely impose punishments on people who can’t or won’t pay, generally without distinguishing between the two.

In Delaware County, dockets show some people have been sentenced 10 times or more on a single case, with sentence conditions emphasizing paying fines, court fees, or restitution. In some cases, the judge threatened detention in the event of a single missed payment. In others, judges promised early termination once costs were paid.

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Electronic monitoring creates a sort of debtor's supervision

Over the past half-century, the number of people behind bars in the United States jumped by more than 500%, to 2.2 million. This extraordinary rise, often attributed to decades of “tough on crime” policies and harsh sentencing laws, has ensured that even as crime rates have dropped since the 1990s, the number of people locked up and the average length of their stay have increased, reported ProPublica and the New York Times.

According to the Bureau of Justice Statistics, the cost of keeping people in jails and prisons soared to $87 billion in 2015 from $19 billion in 1980, in current dollars.

In recent years, politicians on both sides of the aisle have joined criminal-justice reformers in recognizing mass incarceration as both a moral outrage and a fiscal sinkhole. As ankle bracelets have become compact and cost-effective, legislators have embraced them as an enlightened alternative. More than 125,000 people in the criminal-justice system were supervised with monitors in 2015, compared with just 53,000 people in 2005, according to the Pew Charitable Trusts. Although no current national tally is available, data from several cities — Austin, Texas; Indianapolis; Chicago; and San Francisco — show that this number continues to rise.

Last December, the First Step Act, which includes provisions for home detention, was signed into law by President Donald Trump with support from the private prison giants GEO Group and CoreCivic. These corporations dominate the so-called community-corrections market — services such as day-reporting and electronic monitoring — that represents one of the fastest-growing revenue sectors of their industry.

By far the most decisive factor promoting the expansion of monitors is the financial one. The United States government pays for monitors for some of those in the federal criminal-justice system and for tens of thousands of immigrants supervised by Immigration and Customs Enforcement. But states and cities, which incur around 90% of the expenditures for jails and prisons, are increasingly passing the financial burden of the devices onto those who wear them. It costs St. Louis roughly $90 a day to detain a person awaiting trial in the Workhouse, where in 2017 the average stay was 291 days. When individuals pay EMASS $10 a day for their own supervision, it costs the city nothing. A 2014 study by NPR and the Brennan Center found that, with the exception of Hawaii, every state required people to pay at least part of the costs associated with GPS monitoring. Some probation offices and sheriffs run their own monitoring programs — renting the equipment from manufacturers, hiring staff and collecting fees directly from participants. Others have outsourced the supervision of defendants, parolees and probationers to private companies.

“There are a lot of judges who reflexively put people on monitors, without making much of a pretense of seriously weighing it at all,” said Chris Albin-Lackey, a senior legal adviser with Human Rights Watch who has researched private-supervision companies. “The limiting factor is the cost it might impose on the public, but when that expense is sourced out, even that minimal brake on judicial discretion goes out the window.”

Nowhere is the pressure to adopt monitors more pronounced than in places like St. Louis: cash-strapped municipalities with large populations of people awaiting trial. Nationwide on any given day, half a million people sit in crowded and expensive jails because, like Daehaun White, they cannot purchase their freedom.

As the movement to overhaul cash bail has challenged the constitutionality of jailing these defendants, judges and sheriffs have turned to monitors as an appealing substitute. In San Francisco, the number of people released from jail onto electronic monitors tripled after a 2018 ruling forced courts to release more defendants without bail. In Marion County, Indiana, where jail overcrowding is routine, roughly 5,000 defendants were put on monitors last year. “You would be hard-pressed to find bail-reform legislation in any state that does not include the possibility of electronic monitoring,” said Robin Steinberg, the chief executive of the Bail Project.

Yet like the system of wealth-based detention they are meant to help reform, ankle monitors often place poor people in special jeopardy. Across the country, defendants who have not been convicted of a crime are put on “offender funded” payment plans for monitors that sometimes cost more than their bail. And unlike bail, they don’t get the payment back, even if they’re found innocent. Although a federal survey shows that nearly 40% of Americans would have trouble finding $400 to cover an emergency, companies and courts routinely threaten to lock up defendants if they fall behind on payment. In Greenville, South Carolina, pretrial defendants can be sent back to jail when they fall three weeks behind on fees. (An officer for the Greenville County Detention Center defended this practice on the grounds that participants agree to the costs in advance.) In Mohave County, Arizona, pretrial defendants charged with sex offenses have faced rearrest if they fail to pay for their monitors, even if they prove that they can’t afford them. “We risk replacing an unjust cash-bail system,” Steinberg said, “with one just as unfair, inhumane and unnecessary.”

Many local judges, including in St. Louis, do not conduct hearings on a defendant’s ability to pay for private supervision before assigning them to it; those who do often overestimate poor people’s financial means. Without judicial oversight, defendants are vulnerable to private-supervision companies that set their own rates and charge interest when someone can’t pay up front. Some companies even give their employees bonuses for hitting collection targets.

It’s not only debt that can send defendants back to jail. People who may not otherwise be candidates for incarceration can be punished for breaking the lifestyle rules that come with the devices. A survey in California found that juveniles awaiting trial or on probation face especially difficult rules; in one county, juveniles on monitors were asked to follow more than 50 restrictions, including not participating “in any social activity.” For this reason, many advocates describe electronic monitoring as a “net-widener": Far from serving as an alternative to incarceration, it ends up sweeping more people into the system.

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GateHouse: Driver’s license suspension short-sighted and counterproductive

Matthew T. Mangino

GateHouse Media

March 15, 2019

In 1999, Steve Smith was charged in Pennsylvania with underage drinking. He was 14-years-old. Steve Smith is not his real name, but his story is real and tragic.

The penalty for underage drinking in Pennsylvania includes a driver’s license suspension. Due to Smith’s poor decision as a child he was ineligible for a license when he turned 16. Smith never got a driver’s license, but he drove.

He was convicted of driving under suspension in 2003 and again in 2006. Each time his suspension was extended. In 2013 he was convicted of driving without a license. Earlier this year he was arrested again for driving under suspension.

Now, Smith gainfully employed for more than nine years, married and the father of four children faces six months in jail - 21 years after a youthful indiscretion.

Suspending an individual’s driver’s license for non-driving offenses is short-sighted and counterproductive.

In Smith’s case it was for conduct as a 14-year-old. For some it may be the result of using marijuana, failing to pay parking tickets or being too poor to pay non-traffic fines or court costs.

In Alabama, a federal lawsuit was recently filed challenging the practice of suspending the driver’s licenses of people who cannot pay traffic tickets as a violation of the 14th Amendment by “punishing persons simply because they are poor.”

According to The Associated Press, the federal lawsuit seeks to prohibit the suspension of driver’s licenses for nonpayment of fines. The suit also asks the court to require state agencies to reinstate any driver’s license previously suspended for nonpayment.

A U.S. Department of Justice investigation of the police in Ferguson, Missouri - known for the violent unrest after a police officer involved killing of an unarmed black teen - “found that in Ferguson, a small city with a population of just 21,000, more than 16,000 people had outstanding arrest warrants issued by the court as of December 2014,” with many of those warrants having “nothing to do with criminal behavior.”

A recent forum at the John Jay College in New York entitled “Cash Register Justice” explored the exploitation of the poor to finance criminal justice costs through onerous fines and court costs for otherwise minor offenses.

Research data shared at the forum, suggested that in May 2018, an estimated 7 million Americans had their driver’s licenses suspended because of unpaid fines and fees. According to The Crime Report, 85 percent of Americans drive themselves to work.

Forty-three states have laws that suspend driver’s licenses, revoke licenses, or deny renewals for unpaid fines and fees. Defenders of these practices claim that this is the only coercive tool at their disposal, but The Crime Report points to statistics that say it does not work.

Last year Mississippi stopped suspending people’s driver’s licenses purely because they had not paid court fines and fees. Licenses in Mississippi continue to be suspended for people who do not respond to citations or if a judge holds someone in contempt for failing to pay fines.

A recent California study found “a litany of practices and policies that turn a citation offense into a poverty sentence,” with add-on fees for minor offenses sometimes doubling or quadrupling the original fines. According to NPR, the report says that once a person’s license is suspended, they become even more unable to pay their debts, entering “long cycles of poverty that are difficult, if not impossible to overcome.”

In some states, the court will let an offender spend time in jail in exchange for paying a fine or court costs - a debtor’s prison for those cloaked in poverty and unable to pay.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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The New Debtors' Prison: Locking up people who can't afford to pay fines or court costs

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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In Oklahoma private company gets rich collecting court fees

Ira Wilkins should be a free man. Wilkins has served his time in an Oklahoma prison and is clear for release. But a private court fee collections agency is keeping him behind bars.

Wilkins is the lead plaintiff in a new racketeering lawsuit against the Oklahoma Sheriffs’ Association, every sheriff’s department in the state, and the court fee collections firm Aberdeen Enterprizes II. When Oklahomans owe court fees, their case is assigned to Aberdeen, which charges them an additional 30 percent on top of what courts want. If they don’t pay, Aberdeen requests a warrant for the debtor’s arrest. It’s big business for Aberdeen and the Oklahoma Sheriffs’ Association, which received more than $800,000 from Aberdeen in 2015.

Under Aberdeen’s watch, debtors wind up in jail. When an Oklahoman owes court fees, Aberdeen contacts the debtor by phone or mail, informing them of the arrest warrant. The message is clear: Pay or go to jail.

In 2016, “failure to pay” was the fourth most common cause of incarceration in the state, with 1,163 Oklahomans booked into jail, according to the lawsuit. (That’s almost as many as possession of controlled substance, the most common cause of incarceration, with 1,326 people book.) Currently, Oklahoma has approximately 45,000 open “failure to pay” warrants, Daniel Smolen, one of the attorneys representing Wilkins told The Daily Beast.

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Judges try to rein in the use of defendants as cash cows

The American jail system is an abomination writes Ryan Cooper in The Week. Over three-fifths of people who are in jail (as opposed to prison) have not been convicted of a crime. And of those, a large fraction are there because they cannot afford bail. That is a gross violation of the Fifth Amendment, which states that no person can "be deprived of life, liberty, or property, without due process of law."

But mass incarceration of people simply because they are poor is also the natural outgrowth of a jail system that is chronically underfunded, locally administered, and concerned more with warehousing troublemakers than with constitutional due process.

However, things have started to change — most recently by something called a model bench card for justices. It says that nobody can be jailed for nonpayment of fines without a hearing establishing that they had the money and deliberately refused to pay, or that nonpayment was not the defendant's fault and alternatives to incarceration were inadequate.

So what is a bench card? Essentially, it's a quasi-official set of rules outlining court procedure and constraining how judges are supposed to rule — basically a cheat sheet for following the law. This bench card is the result of consistent pressure from outside legal efforts, most notably the ACLU, which has been suing debtor's prisons for years and years. Their push resulted in the National Task Force of Fees, Fines, and Bail Practices, which involved the Conference of Chief Justices (a powerful force composed of the highest judicial officer from each state and territory), the Conference of State Court Administrators, the ACLU, and several other organizations.

The model card provides simple and clear rules about notifying defendants about their rights (including the right not to be jailed for being poor), how they must be allowed to explain their financial situation, a definition of poverty, and so on. It includes a set of procedures ensuring this happens, as well as a list of options for people unable to pay, which importantly includes one reading "Waiver or suspension of the amount due," and two other similar options. Many of the worst abuses of the poor in the criminal justice system come from treating them as a profit center, and that is a big step away from that mentality.

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GateHouse: Pulling the plug on 'Cash Register' justice

Matthew T. Mangino

GateHouse Media

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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'Pay, Work or Jail'

Community service in lieu of incarceration not a cure-all
Debtors' prisons are back, according to UCLA Professor Noah Zatz in a Los Angeles Time op-ed. The criminal justice system creates debt with tickets for quality-of-life offenses, proliferating court fees and criminal fines. Justice will not be satisfied, however, if we simply replace debtors' prisons with debt peonage.

From the American Civil Liberties Union to the Department of Justice to the New York Times editorial page, would-be reformers are embracing the idea that mandatory “community service” could provide an alternative to debtors' prison. The basic idea is intuitive enough. Rather than jail someone who cannot pay a fine, why not allow him to “work off” the debt? Under this system, an unemployed or underemployed person works at a nonprofit or government agency in exchange for debt relief, not cash.

So what's the problem? 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 13th Amendment, which abolished slavery and involuntary servitude. Several early 20th century Supreme Court decisions struck down practices in the Jim Crow South that used the criminal justice system to impose a similar three-way choice of “pay, work or jail.”

The 1914 case United States vs. Reynolds comes closest to today's problems. Alabama selectively prosecuted and convicted African Americans for minor crimes, imposed fines they could not afford, threatened incarceration if they did not pay, and 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. The court struck down this system that kept a defendant “chained to an ever-turning wheel of servitude to discharge the obligation.”

The dangers of abuse should be obvious when, as Reynolds noted, “[t]his labor is performed under the constant coercion and threat of another possible arrest and prosecution.” Employers gain tremendous power and no reason not to exploit it. Confining this power dynamic to the nonprofit or public sectors — as modern reformers typically propose — hardly eliminates the risk.

Beyond the right to quit, labor and employment laws ordinarily protect workers from exploitation, unsafe conditions or abuse. But by styling this work as “community service,” these programs attempt to bypass labor protections. In Los Angeles, upward of 100,000 workers each year perform court-ordered community service, often for hundreds of hours and in lieu of paying a fine. They must sign standard “contracts” declaring that they are volunteers, not employees, and therefore have no employment rights, including workers' compensation for on-the-job injuries.

A federal judge in New York ruled last year that workers in a related court-supervised work program had no claim to the minimum wage. There, too, unpaid work was offered as an “alternative to incarceration” for minor violations and to ensure that “[d]efendants who do not have money to make restitution should, when practical, pay for their offense through community service.”

 Even if community service workers received debt reductions based on the minimum wage, this still would be tantamount to seizing 100% of their earnings. That is contrary to federal standards that cap wage garnishment to preserve for workers some gain from their labor and some basis for their subsistence. Yet in Los Angeles and elsewhere, workers even have to pay a fee out of pocket for the privilege of working for free to stay out of jail. These fees go to the courthouse referral agency that assigns defendants to specific work sites.

One final problem: When the criminal justice system supplies agencies with free labor, they have every incentive to use it instead of hiring regular employees. New York's experiment with large-scale “workfare” in the 1990s — unpaid labor to maintain welfare benefits — is instructive. Not only did that effort subject workers to unsafe conditions and harassment, but it also allowed Rudolph Giuliani's administration to cut thousands of unionized public sector jobs by subbing in workfare workers.

Debt peonage may indeed be the lesser evil relative to debtors' prison. But why accept those choices? At issue are government-manufactured debts born in part of racial profiling and “broken windows” policing. Why not change the criminal justice practices that produce these debts? Moreover, debtors' inability to pay is born of unemployment and the degradation of jobs. Only by ignoring a failing labor market can we celebrate coerced, unpaid, unprotected work just because human caging is even worse.

To read more CLICK HERE

ACLU files suit challenging debtor's prison

 According to a press release dated January 29, 2015 issued by the American Civil Liberties Union, the ACLU filed a federal lawsuit challenging debt collection practices that have resulted in the jailing of people simply because they are poor. The case was brought on behalf of Kevin Thompson, a black teenager in DeKalb County, Georgia, who was jailed because he could not afford to pay court fines and probation company fees stemming from a traffic ticket.
"Being poor is not a crime. Yet across the county, the freedom of too many people unfairly rests on their ability to pay traffic fines and fees they cannot afford," said Nusrat Choudhury, an attorney with the ACLU's Racial Justice Program. "We seek to dismantle this two-tiered system of justice that punishes the poorest among us, disproportionately people of color, more harshly than those with means."
The U.S. Supreme Court ruled more than 30 years ago that locking people up merely because they cannot afford to pay court fines is contrary to American values of fairness and equality embedded in the 14th Amendment to the U.S. Constitution. The court made clear that judges cannot jail someone for failure to pay without first considering their ability to pay, efforts to acquire money, and alternatives to incarceration.
No such consideration was given to Thompson, who was locked up for five days because he could not afford to pay $838 in fines and fees to the county and JCS – despite the fact that he tried his best to make payments. The lawsuit charges that Thompson's constitutional rights to an indigency hearing and to counsel were violated by DeKalb County, JCS, and the chief judge of the local court that sentenced him to jail.
The case, Thompson v. DeKalb County, was filed in U.S. District Court in Atlanta.
The complaint is at: https://www.aclu.org/criminal-law-reform-racial-justice/thompson-v-dekalb-county-aclu-complaint
The press statement is at: https://www.aclu.org/criminal-law-reform-racial-justice/aclu-challenges-debt-collection-practices-target-poor

The Cautionary Instruction: America’s ‘punishment tax’

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
June 13, 2014
Fifty-five-year-old Eileen DiNino died in a Berks County jail last weekend. DiNino’s crime -- failure to pay fines racked up by her son’s truancy. She was in jail because her son didn’t go to school.
The guy that threw her in jail, District Judge Dean R. Patton, told the Reading Eagle, “This woman should not have died alone in prison … Our ultimate goal is not to fine people or put them in jail, but that is the only tool the Legislature has given us when people can’t afford to pay.”
Hundreds of parents, some impoverished and overwhelmed, have been jailed in Pennsylvania for failing to pay court fines that arise from truancy hearings after their children skip school, creating what some call a “debtor’s prison.”
Nationwide, indigent offenders are being jailed if they don’t pay fines and what amount to revenue-producing 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 became known as “cash register justice.”
In fact, 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.
According to a 2013 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 “debtors’ prison.”
All of this, in spite of a 30-year-old U.S. Supreme Court ruling 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.
Like Eileen DeNino, men and women, across the country are being sent to jail simply because they don’t have money. The ever-increasing court fees and costs are not about deterrence, retribution or rehabilitation -- they’re about creating revenue. America has created the “punishment tax” -- and jail cells are routinely being used to collect it.

---

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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Chief Justice O’Connor slams door on debtors’ prisons

Matthew T. Mangino

The Vindicator

April 6, 2014

Roughly a year ago, I wrote about a number of Ohio counties that were locking away indigent defendants who were too poor to pay off their fines and costs. The action continued in spite of state and federal laws to the contrary.
Recently, the Ohio Supreme Court addressed the issue. The Supreme Court’s action is in direct response to a report released last year by the ACLU, “The Outskirts of Hope.” The report suggested 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 the wake of the report, Ohio Supreme Court Chief Justice Maureen O’Connor held a meeting with the ACLU and created a plan to draft and distribute new instructions to courts across Ohio. The Supreme Court issued new “bench cards” to all the state’s judges with different alternatives to jail for offenders unable to pay fines and court costs.
Unconstitutional
“Debtors’ prisons are not only unconstitutional, they are a cruel albatross that traps low-income people in a never-ending cycle of poverty, debt, and incarceration,” said ACLU of Ohio spokesman Mike Brickner. “We expect our courts to protect the vulnerable and seek justice. It is our hope that the Supreme Court of Ohio’s actions … have moved our courts closer to fulfilling that vision.”
Nearly 30 years ago, the U.S. 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 a crime, the court could not later imprison a person solely because he lacked the resources to pay the fine.

What were some Ohio judges doing?
A number of Ohio counties were jailing offenders because they were too poor to pay fines. That type of court action, besides being illegal, was also perpetuating an antiquated and draconian process — debtors’ prison.
Jail is not an option in Ohio for failure to pay court costs and restitution. The Ohio Supreme Court had ruled that fines are criminal sanctions, and costs and restitution are civil. Yet, according to the ACLU’s report, some Ohio counties regularly incarcerated people who failed to pay court costs.
Case law
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. 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.
Despite those clear directives, Ohioans were regularly jailed for their inability to pay, and the Supreme Court had to intervene.
The new two-page bench card will change the way judges do business in Ohio. The law is clear; only a willful refusal to pay a fine that an offender has the ability to pay can result in jail time in Ohio.
Anything short of a willful refusal will be handled in accordance with the directives of the bench card. Methods authorized to collect a fine include payment plans, community service and attachment of personal funds among other options. Methods explicitly prohibited include contempt of court, forfeiture of confiscated money, and the extension of probation.
With regard to court costs, jail time is never an option but payment plans and community service, as with fines, are also available.
The Ohio Supreme Court’s fast action is an important step in shedding the state’s dubious distinction of imprisoning debtors.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” is due out this summer. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino
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