The New York Times Magazine’s Matthew Shaer consulted FFJC Co-Director Joanna Weiss about America’s damaging fines and fees practices and the status of reform movements nationwide. “Cities use the justice system to wring revenue out of the poorest Americans,” she said. “Criminal justice debt is now a de facto way of funding a lot of American cities.”
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How Cities Make Money by Fining the Poor
In many parts of America, like Corinth, Miss., judges are locking up defendants who can’t pay — sometimes for months at a time.
No government agency comprehensively tracks the extent of criminal-justice debt owed by poor defendants, but experts estimate that those fines and fees total tens of billions of dollars. That number is likely to grow in coming years, and significantly: National Public Radio, in a survey conducted with the Brennan Center for Justice and the National Center for State Courts, found that 48 states increased their civil and criminal court fees from 2010 to 2014. And because wealthy and middle-class Americans can typically afford either the initial fee or the services of an attorney, it will be the poor who shoulder the bulk of the burden.
“You think about what we want to define us as Americans: equal opportunity, equal protection under the law,” Mitali Nagrecha, the director of Harvard’s National Criminal Justice Debt Initiative, told me. “But what we’re seeing in these situations is that not only are the poor in the United States treated differently than people with means, but that the courts are actually aggravating and perpetuating poverty.”
Why they do so is in part a matter of economic reality: In areas hit by recession or falling tax revenue, fines and fees help pay the bills. (The costs of housing and feeding inmates can be subsidized by the state.) As the Fines and Fees Justice Center, an advocacy organization based in New York, has documented, financial penalties on the poor are now a leading source of revenue for municipalities around the country. In Alabama, for example, the Southern Poverty Law Center took up the case of a woman who was jailed for missing a court date related to an unpaid utility bill. In Oregon, courts have issued hefty fines to the parents of truant schoolchildren. Many counties around the country engage in civil forfeiture, the seizure of vehicles and cash from people suspected (but not necessarily proven in court) of having broken the law. In Louisiana, pretrial diversion laws empower the police to offer traffic offenders a choice: Pay up quickly, and the ticket won’t go on your record; fight the ticket in court, and you’ll face additional fees.
“What we’ve seen in our research is that the mechanisms vary, depending on the region,” says Joanna Weiss, co-director of the Fines and Fees Justice Center. “But they have one thing in common: They use the justice system to wring revenue out of the poorest Americans — the people who can afford it the least.” Aside from taxes, she says, “criminal-justice debt is now a de facto way of funding a lot of American cities.”
The jailing of poor defendants who cannot pay fines — a particularly insidious version of this revenue machine — has been ruled unconstitutional since a trio of Supreme Court cases spanning the 1970s and early 1980s. The first, Williams v. Illinois, involved a petty thief who was forced to remain in prison to pay off a fine, even after he had served his term. The second, Tate v. Short, hinged on a man in Texas named Preston Tate, who was assessed $425 in fines for several traffic violations. Because Tate couldn’t make the payments, a judge sentenced him to 85 days in jail — the amount of time it would take him, at a rate of $5 a day, to pay his entire fine. Tate took his case to the Supreme Court, which found that the punishment violated the Equal Protection Clause of the 14th Amendment to the Constitution, which requires that the government not discriminate on criteria like race or background. The court found that Tate was imprisoned “solely because of his indigency.”
In a majority opinion for an analogous case from 1983, Bearden v. Georgia, in which a man received probation and a fine when he pleaded guilty to burglary and theft, Justice Sandra Day O’Connor called it “fundamentally unfair” to send him to prison for nonpayment without “considering whether adequate alternative methods of punish[ment]” — like community service or a payment plan — were available. To do otherwise was to deprive a person of his freedom simply because he happened to be poor.
Still, decades after those cases were decided, the practice of jailing people who cannot pay persists, not least because Supreme Court decisions do not always make their way to local courts. “Precedent is one thing,” says Alec Karakatsanis, executive director of Civil Rights Corps, a Washington-based nonprofit. “The way a law is written is one thing. The way a law is actually experienced by poor people and people of color is another.”
Moreover, Karakatsanis argues, jailing poor defendants has proved to be an effective way of raising money. By threatening a defendant with incarceration, a judge is often able to extract cash from a person’s family that might otherwise be difficult to touch. “A typical creditor,” he says, “can’t put you in a steel cage if you can’t come up with the money.”
In 2010, the American Civil Liberties Union detailed evidence of what it calls “modern-day ‘debtors’ prisons’ ” — essentially, courts operating in the same way as Judge Ross’s in Corinth — in Georgia, Michigan, Louisiana, Ohio and Washington State. “If you spent a few weeks driving from coast to coast, you might not find similar policies in place in every single county,” Sam Brooke, the deputy legal director of the Southern Poverty Law Center’s economic-justice program, told me. “But every other county? Probably. This is a massive problem, and it’s not confined to the South. It’s national.”
In 2014, in the wake of the fatal shooting of an unarmed black teenager named Michael Brown in Ferguson, Mo., President Barack Obama’s Justice Department opened two investigations into policing in the city. Among the findings, released the following spring, was evidence that the city had been routinely jailing residents for failure to pay criminal-justice-related debt and that “the court’s practices impose unnecessary harm, overwhelmingly on African-American individuals.” In 2016, the Justice Department issued what is known as a “dear colleague” letter, reminding courts that they are obligated to take into consideration a defendant’s financial standing before levying fines. Although not legally binding, the letter was met with approval from many civil rights activists, as was the willingness of states including New Hampshire and Illinois to proactively train judges and clerks on the pertinent legal precedents.
The “dear colleague” letter, along with two dozen others, has since been rescinded by former Attorney General Jeff Sessions, who argued that his predecessors overstepped their bounds and that it should be left to Congress to arrive at solutions through legislation. “Last month, I ended the longstanding abuse of issuing rules by simply publishing a letter or posting a web page,” Sessions said in a statement in December 2017. Any guidance, he went on, that “improperly goes beyond what is provided for in statutes or regulation should not be given effect.”
But Congress has been slow to act — no current major bill addresses the jailing of poor defendants. “At this point, I’m convinced that sunlight — a lot of it — is going to have to be the solution,” Brooke told me.
In recent years, the Southern Poverty Law Center and other organizations, including the A.C.L.U. and Karakatsanis’s Civil Rights Corps, have been filing class-action lawsuits against dozens of courts across the South and Midwest and West, arguing that local courts, in jailing indigent defendants, are violating the Supreme Court rulings laid down in Williams, Tate and Bearden. The lawsuits work: As a settlement is negotiated, a judge typically agrees to stop jailing new inmates for unpaid fines or fees. “No one wants to admit they’ve knowingly acted in this manner,” says Brooke, who partnered with Karakatsanis on lawsuits in Alabama and filed several elsewhere in the South. “So they tend to settle quickly.” The trouble is locating the offending courts.
In January 2017, two S.P.L.C. staff members, Micah West, a senior staff attorney, and Sara Wood, a senior paralegal, drove from the organization’s headquarters in Montgomery, Ala., to Southern Mississippi, to look into claims that the state was suspending — without due process — the licenses of thousands of residents for failure to pay overdue traffic tickets. For a couple of days, West and Wood made visits to various D.M.V.s and court offices. But even when they could get someone to talk to them, the clerk was sometimes unable or unwilling to share any details of individual suspensions. “Eventually, I was like, ‘All right, let’s save ourselves some time,’ ” West recalled. “So we got out a map, and we started calling every place on it.” One morning, his finger landed on the city of Corinth.
A Municipal Court staff member picked up on the third ring. “Could you answer a question for me?” West asked the woman. “I’m wondering what would happen if I was unable to pay a speeding ticket. Would I lose my driving license?”
“What do you mean?” she responded. And then: “You’d go to jail.”