Criminalizing Poverty Practices

By DR. JOYNICOLE MARTINEZ, Staff Writer

In 2015, the U.S. Justice Department concluded that Ferguson, Missouri was using its police department largely as a collection agency for the city.

The court practices exacerbated the harm of Ferguson’s unconstitutional and abusive police practices and placed, “particular hardship upon Ferguson’s most vulnerable residents…Minor offenses can generate crippling debts, result in jail time because of an inability to pay and result in the loss of a driver’s license, employment, or housing.”

Similar practices were found in Brookside, Alabama, where a scheme involving the police chief and court system arrested people, often for no reason, for the purpose of generating revenue from fines and fees was revealed.

Failing to pay court fees, fines, and other costs can land a person in jail just because they are too poor to pay. When people can’t pay a court fee or a fine immediately, they may face late fees or interest. In many states, courts suspend driver’s licenses for failure to pay, forcing people to choose between going to work or risking driving with a suspended license. Not driving can mean not working, and that means no income, which means no ability to pay the fee that got the license suspended in the first place.

In April of 2016, a 30-year-old woman from St. Louis was accused of stealing a tube of mascara from a Walmart and was arrested for shoplifting. She said that she threw away the package and forgot to pay the $8.74 for the mascara. She served jail time, received a fine and was put on probation. When she did not appear at a probation hearing, she was sent back to jail. She fell behind on payments and was sent to jail again. Her board jail bill reported by the American Bar Association in 2019 was more than $10,000.

A chart of criminal court charges in North Carolina lists 62 separate fees that defendants may need to pay. Those fees range from a $0.95 contribution to the Legal Aid Fund to $600 for various lab fees. In the U.S., 48 states can require people on probation and parole to pay for their supervision. This can cost anywhere from $10 to $150 each month. People on supervised release will also encounter other fees to cover court-ordered provisions like electronic monitoring, drug testing and counseling services.

States track and report very little data about fines and fees, making it hard to assess the national scope of the problem. A recent study estimated that Americans collectively owe more than $27 billion in criminal fines and fees – but that number only covers complete information for 14 states, partial information for 11 of the fifty and excludes 25 states and the District of Columbia.

As with policing and mass incarceration, low-income families and Black and Brown communities shoulder most of the burden. Our nation has only 5 percent of the world’s population but houses 25 percent of the world’s prisoners. As the incarcerated population grows, so do the costs of administering and managing that population; the need for more courtrooms, judges, prosecutors, public defenders and probation officers. Increases in criminal justice spending have strained budgets and led to an amplified and misguided reliance on fines and fees in order to defray costs. This places a disproportionate burden on poor offenders and racial minority populations, resulting in incarceration for minor offenses.

In April, the Justice Department issued a letter to state and local courts and juvenile justice agencies regarding these fines and fees and the principles rooted in the US Constitution that should guide decision-making. Among others, the letter highlights the Eighth Amendment which prohibits the imposition of fines and fees that are grossly disproportionate to the severity of the offense. The Fourteenth Amendment prohibiting incarceration for nonpayment of fines and fees without first conducting an ability-to-pay determination and establishing that the failure to pay is willful is covered in the letter. According to the Justice Department, the key question is whether a person has made “sufficient bona fide efforts legally to acquire the resources to pay.” The Amendment also requires the consideration of alternatives before incarcerating those who are unable to pay, and that the fines or fees are not creating conflicts of interest.

But Constitutional Amendments are not applied equally or interpreted similarly across state lines or by justices. In the last 20 years, criminal and court fees have increased by 400 percent in North Carolina. Judges waive costs in only eight percent of cases statewide. 1.2 million drivers in North Carolina have had their driver’s licenses suspended for nonpayment of court debt. Although the Supreme Court has held defendants cannot be incarcerated for nonpayment unless a judge has found it to be willful, judges have incarcerated defendants for probation violations, contempt of court, and failure to appear at a hearing.

In a recent report from the Wilson Center for Science and the Fines & Fees Justice Center, 17 million households with children likely experienced shortfalls in food, housing, healthcare, or other essentials because a parent was saddled with court debt. Mass incarceration and criminal justice debt have increased dramatically in the last 30 years, but the problem has reached a tipping point. Former Durham County chief district judge Marcia Morey said, “Think of it, the great percentage of criminal defendants are poor, but every step of the judicial process involves money. For many a $500 bond might as well be $5 million. They are held, not because they are a danger to the community, or because they won’t show up, but because they’re poor. Jail effectively becomes a debtor’s prison.”

But debtor’s prisons are outlawed. And as Justice Hugo Black put it 75 years ago, “there can be no equal justice where the kind of trial a person gets depends on the amount of money he has.”