We Have Criminalized Poverty
People all across the country are regularly incarcerated because they owe court debt stemming from a conviction, a traffic ticket, or some municipal infraction that they simply cannot afford to pay. In Hardin County, Kentucky, local news reports showed that in a single week in November 2022, six people were processed into the county jail for “non-payment of court costs, fees, or fines.” That’s equivalent to nearly one every day, which is particularly shocking considering this is a rural county of just over 100,000 people.
In Mississippi, courts sentence hundreds of people each year to what they euphemistically call “restitution centers.” In reality, these are modern-day debtors’ prisons. Those sentenced to these centers are kept behind razor-wire fences, subjected to strip searches, may only leave to go to work, and even then are transported by corrections officials. Stays in these facilities averaged nearly four months, but some people can be there for years. That’s not surprising when someone is working a minimum wage job to pay off thousands of dollars in court debt while the state’s Department of Corrections continues to add new fees to their bill, including a $10 daily room and board charge.
Beyond being an unfairly coercive and counterproductive response to the inability to pay, debt collection through incarceration often plays out with serious racial disparities. The U.S. Department of Justice investigation into Ferguson, Missouri, found the local court used arrest warrants almost exclusively “to compel payment through the threat of incarceration” and that 96 percent of those jailed on warrants were Black. A study in Nevada found that while Black people made up approximately 13 percent of the population of Las Vegas, nearly 45 percent of all arrest warrants issued for failure to pay a traffic ticket were issued against Black people.
How Is This Still Happening?
Congress abolished debtors’ prisons in 1833. Despite that, state judges continued to send people to jail for failing to pay court debts. The issue reached the U.S. Supreme Court in the 1970s, with two cases in which the Court found it unconstitutional to incarcerate people solely because they could not pay a public debt (Williams v. Illinois, 399 U.S. 235 (1970); Tate v. Short, 401 U.S. 395 (1971)). A decade later, the Court prohibited probation revocation for nonpayment without finding that the person had the means to pay and refused to do so (Bearden v. Georgia, 461 U.S. 660 (1983)). In legal terms, a court must first determine that the failure was willful. The Bearden Court acknowledged the state has multiple options at its disposal to punish and to deter criminal behavior short of incarcerating someone who cannot pay a fine or fee and held that the Constitution requires the courts to exhaust those options. Yet, today, people are still going to jail for being too poor to pay court debt.
One way some courts try to justify debtors’ prisons is by claiming the incarceration is for “contempt” or for not complying with a court order, rather than for nonpayment. Many courts also make paying a requirement of probation or community supervision so that revocation can be justified as failing to comply with a condition of supervision, not a financial lapse. This “contempt of court” justification, however common it may be in practice, is still unlawful bootstrapping. The Bearden Court expressly rejected this approach, saying that contempt without a willfulness finding “is no more than imprisoning a person solely because he lacks funds to pay the fine, a practice we condemned” (Bearden, 461 U.S. at 674).
Because the ability to pay is the crux of the legal issue, courts are theoretically supposed to look at an individual’s financial circumstances and assess the level of hardship making payments would cause. But there is no set formula for doing this. In practice, many courts simply assume an ability to pay without any further analysis.
Severe financial hardship is commonplace in the United States. According to the Federal Reserve, nearly one in four adults is either unable to stay current on their bills or is one unexpected $400 expense away. Another study by the lending industry found that over 60 percent of Americans are living paycheck to paycheck. Yet, all too often, there is a real disconnect between those making sentencing decisions and the financial realities in this country.
We Can Do Better
The story of Roxana Beck can teach us something about how we as a community can start to live up to the constitutional prohibitions regarding incarceration for nonpayment. Her court-appointed attorney took the case to the Idaho Supreme Court, claiming the lower court’s unlawful practices left her in perpetual threat of arrest and imprisonment for being poor. And the Idaho Supreme Court agreed. In a sweeping ruling, it held that the practice of issuing warrants for nonpayment (or “contempt” predicated on nonpayment) violated the Fourth Amendment prohibition against unlawful seizure. Beck v. Elmore County, 489 P.3d 820 (Idaho 2021). Failure to pay (or failure to follow a court order) is not enough to justify arrest and detention, even for a short period of time; under Bearden, there has to be independent probable cause that the person has the ability to pay and is simply choosing not to.
But litigation is lengthy, costly, and doesn’t undo the harm when people have already been incarcerated for court debts. That’s why legislative and policy changes are vital. From a policy perspective, it is critical to understand the difference between fines and fees because the ways of addressing their impact can differ. A fine is a financial punishment for an offense. It is a penalty sometimes imposed as an alternative to jail time, but not always. There is arguably some penological justification for fines, so reform efforts should focus on ensuring they are imposed justly, proportionally, and in a way that does not financially cripple the individual.
Fees, on the other hand, are costs imposed by courts and legislatures to raise revenue. They are used to pay for everything from keeping the courthouse running to paying sheriff’s pensions to funding research on autism. These revenue-generating fees are a substitute for taxes; they fund government operations but are only imposed on those in the criminal, traffic, and municipal court systems.
Aside from being a regressive form of taxation that overburdens lower-income people and people of color, fees are a wholly unreliable way to fund government. Balancing budgets by relying on future income from fees is literally banking on crime. Aside from the moral problem this raises, it’s bad fiscal policy. Conservative estimates place the amount of unpaid court debt in the United States at over $26 billion, though the actual amount is likely much higher. Moreover, courts and local governments are also spending money—in some cases more than they eventually collect—to enforce court debt obligations. For example, a report by the Brennan Center for Justice found that in 2016, one New Mexico Court spent $316,000 more on collection efforts than it ultimately received from fines and fees.
It doesn’t have to be this way. In 2022, Delaware passed a law prohibiting courts from issuing an arrest warrant for unpaid court debt. California’s legislature began repealing fees across the entire justice system in 2020. To date, they have repealed more than 40 fees and forgiven billions of dollars in uncollected court debt. States, cities, and counties from New Hampshire to Texas and from Louisiana to Washington have also started eliminating fees in their systems, which will inevitably reduce the financial burden on individuals in the court system.
Finally, while courts continue to impose fines and fees, we need to be sure that they aren’t trapping people in a cycle of debt, punishment, and incarceration that is difficult to escape. Effective ability-to-pay policies must include a presumption that some individuals will not be able to pay court-imposed costs. Having a court-appointed attorney, being on government assistance, qualifying for public housing, or being unable to work should be recognized as the markers of poverty that they are, and courts must stop jailing those unable to pay.
This article originally appeared in the American Bar Association magazine here.