THE PROBLEM OF USING THE CRIMINAL SYSTEM TO COLLECT DEBTS: THE RETURN OF DEBTOR’S PRISON
The term "debtors' prison" causes one to conjure up images of Charles Dicken’s London but imprisonment for debt has flourished in America as well as Britain well into the nineteenth century. Richard Ford, Imprisonment for Debt, 25 Mich L Rev 24, 29 (1926) (quoting an estimate by an anti-debtors'-prison association in 1830 that three to five times as many persons in Northern states were incarcerated for debt as for criminal offenses; the practice was less common in the South). However recently, Americans have witnessed the mass incarceration of debtors for failure to pay monetary obligations owed to the state, usually municipalities and usually stemming from low-level criminal behavior, such as traffic violations, shoplifting, prostitution, and domestic disputes. See, See, e.g., “Civil Rights Attorneys Sue Ferguson Over “Debtors Prisons” (NPR radio broadcast 2015) (“[W]e’ve seen the rise of modern American debtors’ prisons and nowhere is that phenomenon more stark than in the Ferguson and Jennings municipal courts and municipal jails.”), available at http://www.npr.org/blogs/codeswitch/2015/02/08/384332798/civil-rights-attorneys-sueferguson over-debtors-prisons; Alec Karakatsanis, Policing, Mass Imprisonment, and the Failure of American Lawyers, 128 HARV. L. REV. F. 253, 262–63 (2015) (“The rise of modern debtors’ prisons is a phenomenon affecting hundreds of thousands of people all over the country, and it is happening almost entirely outside of the public consciousness.”). Recent research indicates that, if not for the rise in incarceration, the number of people in poverty would fall by as much as 20 percent. DeFina, R. & Hannon, L. The Impact of Mass Incarceration on Poverty, Crime & Delinquency, 59, 562-586 (2013), http://cad.sagepub.com/content/59/4/562.abstract. Incarceration contributes to poverty by creating employment barriers; reducing earnings and decreasing economic security through criminal debt, fees and fines; making access to public benefits difficult or impossible; and disrupting communities where formerly incarcerated people reside.
In 2015, Attorney General Loretta E. Lynch tried to address the problem of using debt collection in the criminal justice system when she said
What is the price of justice? What is the price of justice? When bail is set unreasonably high, people are behind bars only because they are poor. Not because they’re a danger or a flight risk – only because they are poor. They don’t have money to get out of jail and they certainly don’t have money to flee anywhere. Other people who do have the means can avoid the system setting inequality in place from the beginning. And when fines and fees are imposed on top of the jail sentences even after offenders have paid their debt to society – and that’s what we have said. We have determined as a society, as a country, as a people, that the incarceration and the supervision and the specific fines for a particular crime are that person’s debt to society. “Attorney General Loretta E. Lynch Delivers Remarks at White House Convening on Incarceration and Poverty,” https://www.justice.gov/opa/speech/attorney-general-loretta-e-lynch-delivers-remarks-white-house-convening-incarceration-and
Nevertheless judges “themselves dun residents who have fallen behind in their payments [in criminal cases], but unlike other creditors, they can throw debtors in jail — and they do, by the thousands.” John Schwartz, “Pinched Courts Push to Collect Fees and Fines,” NY Times (April 6, 2009), http://www.nytimes.com/2009/04/07/us/07collection.html?_r=0&pagewanted=all. “In some jurisdictions, approximately 20 percent of all jail inmates were incarcerated for failure to pay criminal justice debts. Estimates indicate that a third of felony defendants are detained before trial for failure to make bail; and in one city, approximately 20 percent of defendants made bail at amounts less than $500. High debt burdens for poor offenders in turn increase barriers to successful re-entry after an offense.” White House Council of Economic Advisors, “Fines, Fees, and Bail Payments in the criminal justice system that disproportionately impact the poor,” (Issue Brief December 2015) https://www.whitehouse.gov/sites/default/files/page/files/1215_cea_fine_fee_bail_issue_brief.pdf. Such views, by whatever branch of government, is incredibly short sighted and self-defeating. Using the criminal system to collect debts leads to “a host of negative and unintended consequences.” Massachusetts Executive Office of Public Safety and Security, “Inmate Fees as a Source of Revenue: Review of Challenges” (July 2011), http://www.mass.gov/eopss/docs/eops/inmate-fee-final-7-1-11.pdf at 4. For instance, imposing additional fees and debts actually increases costs to taxpayers by creating a cost associated with implementing the fees and would likely increase recidivism rates. Id. “Poor to begin with, and often lacking even a high school diploma, it is difficult for people going through the criminal justice system to find the sort of employment that would enable them to re-pay their financial debt. Sociological studies have indicated that criminal justice fees and fines incentivize criminal behaviors as people try to meet payments amounts, and discourage people from contact with authorities, including obtaining necessary medical assistance and reporting to the police when they themselves are victimized.” Patel and Philip, “Criminal Justice Debt: A toolkit for action (Brennan Center for Justice 2012) p. 2. https://www.brennancenter.org/sites/default/files/legacy/publications/Criminal%20Justice%20Debt%20Background%20for%20web.pdf At least in Wisconsin, Wis. Stat. section 973.07 expressly limits incarceration as a means of collecting a fine to a period in the county jail not to exceed six months. Therefore, a circuit court errs as a matter of law in making the payment of an old unpaid fine a condition of probation for the new conviction, because a violation of that condition would expose the defendant to incarceration in the county jail for more than six months. State v. Oakley, 2000 WI 37 (2000).
Finally, regarding the cost of representing indigent people being based on to the indigent themselves, “it is defense organizations themselves that often initiate the idea of application fees, generally during a time of budgetary stress for a defender program. The high level administrators who deal with budgets and negotiate with legislators tend to favor the fees from an institutional perspective. The application fees not only hold the promise of increasing revenue, they also purchase good will in the legislature by showing a willingness to contain costs and impose a measure of self-responsibility among the client base. As for the effects of fees on prospective clients, the high-level defense administrators downplay—without any direct empirical support—the burden on indigents. Resistance to fees inevitably comes from lower in the defense ranks, from attorneys who represent indigents and view matters from an individual client perspective rather than an institutional vantage point. … These objections from the field operators of the defense organizations, however, usually give way to budgetary and political imperatives. The defense establishment, like other bureaucracies, takes its policy direction from the top. Faced with the right combination of budgetary and political woes, a defense organization will bow to necessity (as seen by its leaders) and adopt a policy to collect application fees.” Ronald F. Wright and Wayne A. Logan, The Political Economy of Application Fees for Indigent Criminal Defense, 47 Wm. & Mary L. Rev. 2045 (2006), http://scholarship.law.wm.edu/wmlr/vol47/iss6/5
In 2015, Attorney General Loretta E. Lynch tried to address the problem of using debt collection in the criminal justice system when she said
What is the price of justice? What is the price of justice? When bail is set unreasonably high, people are behind bars only because they are poor. Not because they’re a danger or a flight risk – only because they are poor. They don’t have money to get out of jail and they certainly don’t have money to flee anywhere. Other people who do have the means can avoid the system setting inequality in place from the beginning. And when fines and fees are imposed on top of the jail sentences even after offenders have paid their debt to society – and that’s what we have said. We have determined as a society, as a country, as a people, that the incarceration and the supervision and the specific fines for a particular crime are that person’s debt to society. “Attorney General Loretta E. Lynch Delivers Remarks at White House Convening on Incarceration and Poverty,” https://www.justice.gov/opa/speech/attorney-general-loretta-e-lynch-delivers-remarks-white-house-convening-incarceration-and
Nevertheless judges “themselves dun residents who have fallen behind in their payments [in criminal cases], but unlike other creditors, they can throw debtors in jail — and they do, by the thousands.” John Schwartz, “Pinched Courts Push to Collect Fees and Fines,” NY Times (April 6, 2009), http://www.nytimes.com/2009/04/07/us/07collection.html?_r=0&pagewanted=all. “In some jurisdictions, approximately 20 percent of all jail inmates were incarcerated for failure to pay criminal justice debts. Estimates indicate that a third of felony defendants are detained before trial for failure to make bail; and in one city, approximately 20 percent of defendants made bail at amounts less than $500. High debt burdens for poor offenders in turn increase barriers to successful re-entry after an offense.” White House Council of Economic Advisors, “Fines, Fees, and Bail Payments in the criminal justice system that disproportionately impact the poor,” (Issue Brief December 2015) https://www.whitehouse.gov/sites/default/files/page/files/1215_cea_fine_fee_bail_issue_brief.pdf. Such views, by whatever branch of government, is incredibly short sighted and self-defeating. Using the criminal system to collect debts leads to “a host of negative and unintended consequences.” Massachusetts Executive Office of Public Safety and Security, “Inmate Fees as a Source of Revenue: Review of Challenges” (July 2011), http://www.mass.gov/eopss/docs/eops/inmate-fee-final-7-1-11.pdf at 4. For instance, imposing additional fees and debts actually increases costs to taxpayers by creating a cost associated with implementing the fees and would likely increase recidivism rates. Id. “Poor to begin with, and often lacking even a high school diploma, it is difficult for people going through the criminal justice system to find the sort of employment that would enable them to re-pay their financial debt. Sociological studies have indicated that criminal justice fees and fines incentivize criminal behaviors as people try to meet payments amounts, and discourage people from contact with authorities, including obtaining necessary medical assistance and reporting to the police when they themselves are victimized.” Patel and Philip, “Criminal Justice Debt: A toolkit for action (Brennan Center for Justice 2012) p. 2. https://www.brennancenter.org/sites/default/files/legacy/publications/Criminal%20Justice%20Debt%20Background%20for%20web.pdf At least in Wisconsin, Wis. Stat. section 973.07 expressly limits incarceration as a means of collecting a fine to a period in the county jail not to exceed six months. Therefore, a circuit court errs as a matter of law in making the payment of an old unpaid fine a condition of probation for the new conviction, because a violation of that condition would expose the defendant to incarceration in the county jail for more than six months. State v. Oakley, 2000 WI 37 (2000).
Finally, regarding the cost of representing indigent people being based on to the indigent themselves, “it is defense organizations themselves that often initiate the idea of application fees, generally during a time of budgetary stress for a defender program. The high level administrators who deal with budgets and negotiate with legislators tend to favor the fees from an institutional perspective. The application fees not only hold the promise of increasing revenue, they also purchase good will in the legislature by showing a willingness to contain costs and impose a measure of self-responsibility among the client base. As for the effects of fees on prospective clients, the high-level defense administrators downplay—without any direct empirical support—the burden on indigents. Resistance to fees inevitably comes from lower in the defense ranks, from attorneys who represent indigents and view matters from an individual client perspective rather than an institutional vantage point. … These objections from the field operators of the defense organizations, however, usually give way to budgetary and political imperatives. The defense establishment, like other bureaucracies, takes its policy direction from the top. Faced with the right combination of budgetary and political woes, a defense organization will bow to necessity (as seen by its leaders) and adopt a policy to collect application fees.” Ronald F. Wright and Wayne A. Logan, The Political Economy of Application Fees for Indigent Criminal Defense, 47 Wm. & Mary L. Rev. 2045 (2006), http://scholarship.law.wm.edu/wmlr/vol47/iss6/5
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