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Ferguson Is Everywhere: Twenty-First-Century Debtors’ Prisons

In New Orleans’s Municipal Court, Section A, even when the judge was presiding, not a word was audible to anyone in the audience, and, with multiple negotiations happening simultaneously around the room, no one in the gallery could understand anything that was going on. In the center of the grim circus were the shackled men wearing orange jumpsuits—almost all African American—being held for arraignment, awaiting trial because they could not make bail, or doing time for criminal contempt because they had not appeared in response to a “judicial attachment” or bench warrant for nonpayment of debt owed to the court.

Most of the shackled men, many quite young, were embarking on (or well along in) a long or even endless voyage of debt and incarceration. Unlike other jurisdictions, New Orleans does not jail people at the time they are sentenced and unable to pay a fine. But this is a distinction without a difference: many of the accused are held for days before being arraigned, and more are in for longer times while awaiting trial because they can’t afford to post bail. More yet will serve multiple stints in jail for nonpayment of debts to the court, ad infinitum.¹

In too many cities and small towns across the country, scenes like the one in New Orleans occur every day. The details differ, but high fines and fees are the order of the day in juvenile as well as adult courts.² Even in jurisdictions and individual courtrooms where low-income arrestees are not jailed when initially sentenced, the dearth of public defenders, the almost ubiquitous use of money bail (in adult courts), and the ever-mounting payments owed mean repeated time in jail along with unmanageable debt. Ferguson is almost everywhere.

Constitutional violations on the part of the courts are rife, and they go uncorrected largely because of the shortage of public defenders. Police often violate the Fourth Amendment, making stops without reasonable suspicion, making arrests without probable cause, and using excessive force. First Amendment rights are violated when free expression is suppressed, including prohibition of the use of cellphone cameras to film police activity in a public setting. Fourteenth Amendment rights are curtailed when there is racial, economic, and other discrimination by police, judges, and other officials who disregard equal protection and due process.

The very act of jailing an indigent person for a fine-only, low-level offense is unconstitutional, and many of these jailings occur in states that actually have laws explicitly banning debtors’ prisons. In 1983 the Supreme Court heard the case of Danny Bearden, an illiterate ninth-grade dropout who was convicted of receiving stolen goods and placed on probation with a fine of $500 and a $250 order of restitution. His parents put up the first $200. Danny Bearden was going to pay the rest himself but was laid off from his factory job. He tried very hard to find work, but finally had to tell the probation people he had lost his job and could not make the payment then due. His probation was revoked and he was sent to jail. The Supreme Court decided in Bearden v. Georgia that “punishing a person for his poverty” violates the equal protection clause and that an indigent defendant cannot be jailed for inability to pay a fine unless he has “willfully refused to pay the fine or restitution when he has the means to pay.”³

Yes, Bearden and state law are flouted every day. The people who hear the low-level cases are often municipal judges or justices of the peace who are not lawyers or are lawyers but serve part-time and practice in completely different areas of the law. Some judges do not know the law, but other judges know it well and apply it harshly nonetheless.

The Supreme Court has not given clear guidance for what “willfully refused” means, and the literature abounds with instances where the judge said the defendant had expensive-looking shoes or the like and therefore must be able to pay. A judge in Illinois asked all defendants if they smoked, and when any said yes, the judge said they have the means to pay.⁴ A judge in Michigan found that because the defendant had cable television he was capable of paying.⁵

And the Bearden ruling that a defendant’s ability to pay must be taken into account does not apply when a person is arrested on a bench warrant for defaulting on a payment plan, because now the debtor has committed a crime that does carry a jail sentence. Failure to pay constitutes criminal contempt, which allows incarceration as well as further fines and fees. Because the contempt is a crime that allows jailing, there is no protection for indigence and Bearden becomes irrelevant. The right to an attorney that stemmed from Gideon v. Wainwright applies (which doesn’t mean one is available), but Bearden does not apply.

Even the right to an attorney comes with a price tag. The Supreme Court decided in Fuller v. Oregon that charging a fee for a public defender can be constitutional if people who would suffer a “manifest hardship” are relieved from paying it (a requirement ignored in some states).⁶ In fact, forty-three states charge for having a public defender.⁷ Florida does not waive its $50 public defender application fee for the indigent, instead instructing its courts to include it as part of sentencing or as a condition of probation.⁸ In North Carolina, defendants have to pay not only the $50 fee but also the full value of the defense services provided, and in Virginia a defendant must pay up to $1,235 for a public defender on each count for certain felonies.⁹ South Dakota charges $92 an hour; even a defendant found innocent nonetheless owes $920 for ten hours of representation. If he cannot pay, it is a crime.¹⁰

Coming into focus now is the highly questionable constitutionality of money bail—the practice of making a defendant put up a large sum of money to ensure that he will appear for trial, regardless of whether he poses a danger to the community or himself. Defendants who cannot come up with bail—in low-level matters as well as in more serious cases—are kept in jail pending trial. The unmistakably different impact of money bail on the rich and poor calls for litigation, which is now under way in a growing number of courts, both on equal protection and due process grounds and the Eighth Amendment’s explicit ban on “excessive bail.”

“PAY OR STAY”

The days of the $50 or $100 fine for a speeding ticket are long gone. The fine today is $250, $300, or more. Ferguson charged fines of up to $531 for “high grass and weeds” in someone’s yard.¹¹ Fees of one kind or another—for example, $500 toward the cost of running the courthouse gym in one county in Michigan—are then tacked on, with multiple fees totaling much more.¹²

Two interacting trends accelerated in the 1990s: sky-high fines and fees for minor infractions, and a dramatic increase in the number of cases. Justices of the peace and speed traps were facts of my childhood in the 1940s, but relatively speaking they were penny-ante. My father always announced when we went through Hill City, Minnesota, on our way to see my grandmother that he was driving with particular care to avoid being caught in the speed trap. Even so, the fine might be just $25 or $50; an overnight stay in jail would be rare. In the 1990s, though, the need for revenue caused public officials to increase the amounts of their fines and invent new and expensive fees. Police officers were then required to meet new arrest quotas.

“Broken windows” policing produced more fines and fees. And there is the malicious part, too. Jill Webb, a public defender in Tulsa, Oklahoma, told me the police there regularly place a squad car at a stop sign in an African American neighborhood and arrest people for rolling stops. Only in the African American neighborhood. That is neither about revenues nor about broken windows.

Tulsa is representative. At the age of fifty-three, Rosalind Hall of Tulsa, Oklahoma, owed $11,258 in fines and fees stemming from repeated shoplifting connected to three decades of drug addiction and mental health issues. She had served time for the crimes and was now struggling to be clean and sober, but every time she was unable to meet a deadline on a portion of her fines and fees she was slapped with more debt and a new stint in jail. Her mental health issues made steady employment unlikely and her future seemed to hold an unending cycle of periodic jailing and additional debt, until Nicholas Kristof wrote a column about her in the New York Times. The court in Tulsa was so embarrassed that it let her out of jail and forgave her debt. Hall wept when she heard the news.

Many others in Tulsa don’t fare as well. The Tulsa World reported that “about 28 percent of the nearly 23,000 people booked into the Tulsa Jail in 2014 were arrested on court debt-related complaints,” up from 8 percent in 2004.¹³ The reason? Follow the money. Raising taxes in Oklahoma requires a supermajority in the legislature. The rest unfolds as one might expect. In fiscal year 2015 alone, the court system took a $4 million cut in its state appropriation, and the courts now have to find 70 to 90 percent of their own funding.¹⁴ So it’s not surprising that yearly collections from defendants went from $1.6 million in 2008 to $4 million in 2014.¹⁵

The combined fines and fees for a first-offense misdemeanor DUI conviction have jumped from $498 (not cheap) to $715.50. The fine itself is $166.50 (which is the cheapest traffic ticket), and the fifteen types of possible fees include a law library fee, a charge for the court information system revolving fund, the forensic science improvement assessment, and the child abuse multidisciplinary account fee. This amount does not include other costs mandated by the judge, such as “supervision” fees and drug tests. If the defendant defaults, $80 is added for a bench warrant, and ultimately the debt is referred to a collection agency, an action that adds 30 percent to the total.

Nor is the state letting up. In 2016, the legislature doubled nearly all criminal and many civil fees in the state. Senator Greg Treat, vice chairman of the Senate Appropriations Committee, said tersely, “The courts could not have functioned without raising some of those fees.” Trent Baggett, assistant executive coordinator for the District Attorneys Council, added that “offenders should help pay a fee for the prosecution of their cases.”¹⁶

On paper, it looks like Oklahoma complies with Bearden. Rule 8 of the regulations that govern the courts requires a judicial inquiry into whether the defendant can pay. No doubt some defendants do avoid incarceration, but when almost 6,900 people in Tulsa County alone are jailed in a single year for not paying court-imposed debts, one has to wonder what is going on. Jill Webb told me that in practice “the judges don’t make an inquiry before finding that the defendants are able to pay. The only thing the judges know about our defendants’ ability to pay is that they are so poor they can’t bond out.” The Tulsa World reported that “one woman explained [to the presiding judge] she had to choose between having her electricity cut off and paying her court cost.” The judge explained that the court’s remedies are the same as those of the electric company, only the court’s version is sending people to jail. “Nobody wins, I promise you that,” the judge concluded.¹⁷

There are a variety of scenarios around the country, but they all add up to the same thing: prosecuting people for low-level offenses, squeezing them for money, and jailing them if they miss payments, in a cruel game of “pay or stay.” In one version, the judge tells the defendant he has a choice—pay now or go to jail and get daily credit against what is owed for as long as it takes. The judge may make the “generous” offer that the defendant can minimize jail time if family or friends help out. Of course, these are low-income people, too, who typically can scrape up money, if at all, only by not paying the rent or a utility bill, or even by selling blood plasma. Some judges allow community service, but community service is not an option for people who have a job. And depending on the jurisdiction, community service is a euphemism for work that more closely resembles the re-enslavement of the post-Reconstruction era than the kind of time spent helping young people or the elderly that most people envision when they hear the words “community service.”¹⁸

Natasha Edet, whom I met in New Orleans, was employed as a security guard and had never been arrested before. She was nonetheless jailed on a misdemeanor charge of simple battery after a fight with a former girlfriend. She spent fifteen days in jail because she could not afford $500 for bail. Jack Muse, the public defender assigned to represent her, finally succeeded in getting her released on her own recognizance. She ultimately agreed to plead guilty to disturbing the peace, but one still wonders why Edet had to be incarcerated for even a minute. Sandra Bland came to the world’s attention after committing suicide while jailed in Houston, Texas, for a traffic infraction. She should not have been arrested in the first place, but once arrested, she should have been released on her own recognizance. Natasha Edet must have been just as terrified.

Money bail is key to the whole system of gouging defendants in New Orleans (and elsewhere). Arrestees are held pending trial unless they can pay for bail. If they cannot make bail, they are under pressure to plead guilty so they can get out of jail, while also being sentenced to expensive fines and fees. Public defenders told me that fees in district court routinely include $200 for a transcript fee, $500 for a judicial expense fund, $244 for the usual felony court fee, and at minimum $300 for drug tests and other “services” ordered by the court. Fees in excess of $1,000 are routine.

Jonathan Smith, who served with distinction as head of the Special Litigation Section of the Civil Rights Division of the U.S. Department of Justice, told me, “In New Orleans the bail system is what makes the whole corrupt system work. The bondsmen went to the state legislature and got them to add 3 percent to the regular 10 percent bail fee which is then divvied up among the court, prosecutor, defender, and jailer. Now everyone has skin in the game.”

PROBATION AND PAYMENT PLANS

Instead of jailing a defendant at the time of conviction when he cannot pay the fine, a judge—who in all likelihood effectively coerced the defendant to plead guilty in order to get out of jail—may place him on “probation” and release him, but only if he signs a payment plan that adds another $40 a month or more, plus interest on the debt. This is not real probation. It is called “offender-funded probation” or “pay-only probation.”¹⁹ The only “service” provided by the “probation” agency is to collect the “supervision” fee that is appended to the already burdensome payment plan.²⁰ This story is ubiquitous.

Probation can be a racket all in itself. This can be true regardless of whether the agency is public or one of the for-profit companies that exist in thirteen states. Adel Edwards, who lives in Georgia, has a significant intellectual disability and cannot read or write. His infraction was burning leaves without a permit. He was fined $500 and another $528 in probation fees in the Municipal Court of Pelham. He did not have the money on the day he was in court, so he was put on probation for one year. No one asked about his ability to pay. The for-profit probation company, Red Hills, demanded an instant payment of $250, which he could not raise, so he went to jail for several days until a friend came up with the money. He made an additional four installment payments over a year that added up to $138. Even when his probation had expired, the Red Hills people nonetheless threatened him regularly with more jail time if he did not pay what he owed them.

The number of people on probation has skyrocketed, rising from roughly 800,000 adults in 1977 to more than four million in 2010.²¹ In forty-four states offenders are charged for the costs of their own probation or parole (up from twenty-six in 1990), and forty-nine (except Hawaii and the District of Columbia) have a fee for electronic bracelets in lieu of detention while waiting for trial.²² Defendants are also charged for drug testing, vehicle interlocking for those with a DUI, and any court-ordered treatment they receive, as well as interest, late fees, payment plan fees, and collection fees. The charges can be stiff. Home supervision and alcohol monitoring cost between $180 and $360 a month,²³ and drug testing can be $25 per week, or $1,300 a year.²⁴

In Boulder, Colorado, probation can cost up to $1,200 a year. A misdemeanor first DUI is about $600. Urine analysis is $ 8 multiple times a week for a year or two. There are domestic violence classes, driving classes, rehab classes, and more—alcohol classes are $23 each and offenders have to attend fifteen to twenty of them. Electronic home monitoring for a sentence or pretrial release costs $14 a day. For people who fall behind on their payments, the court is quick to “revoke and reinstate,” adding to what probationers owe and often suspending their driver’s licenses as well. The authorities are mostly uninterested in throwing people in jail, because they want to make money, not spend it. For the same reason, they do not use unsupervised probation; “supervised probation” brings in the money.

The thought may cross one’s mind that Boulder is a rich suburb, so no harm, no foul. But a Boulder public defender mentioned to me that she knew of someone who had been arrested for riding a bike without two hands on the handlebars, and she added that it was not a white college student. She said it is the transient population that is getting arrested disproportionately. “It’s a pretend liberal community where everyone votes Democrat, then they get on a jury and don’t want any crime on the streets of their perfect utopia. The juries are terrible.”

Observers in Florida call its surcharges “cash register justice.” In 1996, Florida added more than twenty new sets of fees, and it has added even more since.²⁵ The state repealed most of the exemptions for people unable to pay, and added a mandate that defendants be charged for the costs of their prosecution and public defense regardless of their ability to pay.²⁶

Florida allows private debt collection firms to add a surcharge of up to 40 percent on unpaid court debt.²⁷ Fees are authorized for room and board, medical care, probation supervision, substance abuse treatment, electronic monitoring, and urinalysis. And then there are the fees the state imposes to subsidize other government functions: mandatory fees go to crime prevention programs, the Crime Compensation Trust Fund, the Crime Stoppers Trust fund, and on and on. Minimum fees of $100 for conviction on a felony and $50 on a misdemeanor are charged across the state.

Florida’s chief justice, Jorge Labarga, strongly disapproves of what the legislature and governor have done to the judicial system in his state. Labarga participated in a panel of state chief justices on fines and fees at the White House in April 2016 and voiced his displeasure. He observed that filing fees in civil cases are so high—around $400—that people who want to get a divorce simply cannot get one. And he said the fees and fines in the courts are adding more than $1 billion to the state’s coffers, most of which is used for purposes unrelated to the courts, while in a recent session the legislature actually cut the budget of the state’s trial courts by $2.7 million.

In some courts around the country, the court clerk sets up the payment plan and there is no “probation” at all. It doesn’t matter—it’s just about money. That is what they do in New Orleans. People who are convicted and are unable to pay the fines and fees get a payment plan, with monthly installments that are backbreaking for the indigent and near indigent. The main purpose is to make money to run the court system, especially traffic court, where the penalties have been jacked up the most, and the state district court, where people likewise are slapped with steep fees.

Nor do the debts stop escalating.²⁸ When people default on their payments, the court issues a bench warrant (called a judicial attachment in Louisiana). Some of the men in the orange jumpsuits were in court because they were arrested on such a warrant. They were on their way to being held in criminal contempt for failure to pay, and to doing more time and owing more money.

Alana Cain’s story is typical: She was convicted of felony theft in the district court and was assessed both a fine and court costs that included $600 in fees for the judges’ “judicial expense fund.” Even though Cain was destitute, the collections department told her to pay $100 a month. She borrowed from family and friends and paid regularly, but she was late on one payment, an anomaly that triggered an arrest warrant, an eventual arrest, and jail. Jail staff said she would have to call a family member to get a court date, but there was no free phone in the jail that she could use. She finally found an inmate with a phone account and was able to reach her sister, who scheduled a court date for her. By that time she had already been in jail for one week. The judge told her she would do ninety days the next time she missed a payment.²⁹

DRIVER’S LICENSE SUSPENSIONS

Very frequently, with or without incarceration, a judge will order the suspension of a debtor’s driver’s license, a loss that all too often means that the defendant simply drives without a license, because he has to get to work, or take his child to see a doctor, or buy groceries. At least 75 percent of those who have their licenses suspended keep driving.³⁰ So the debtor may be arrested again for driving without a license, this time to be incarcerated and certainly to be hit with another set of fines and fees.

Damian Stinnie is one of the nearly million people in Virginia who have had their driver’s licenses suspended. Despite spending much of his childhood in foster care, Stinnie graduated from high school with a 3.9 grade point average—a great story so far. Entering the world of work, he found a job and lost it and then, seeking work, received four traffic violations and racked up $1,000 in fines and costs. He was unable to pay the full amount within thirty days on his new $300-a-week job, so his driver’s license was automatically suspended, meaning that Stinnie was among the 75 percent of those suspended who were sanctioned for not paying, not for the infractions themselves. As is routine in Virginia, no one asked Stinnie if he could afford to pay. At that point he joined the millions who face the dilemma of choosing between getting to work and taking the risk of being penalized for driving without a license. With the expansions of the state’s fines and fees in 1998, assessments ballooned from $281.5 million to $618.8 million in 2014, with collections going from $192.2 million to $258.6 million.³¹

California is the leader and all-time champion in taking away driver’s licenses. As of 2015, more than four million Californians had lost their driver’s licenses for some kind of fine that they did not pay on time, often for an infraction that had nothing to do with driving. That is more than one out of six adult Californians.³²

Florida suspends driver’s licenses with abandon.³³ It does that without any inquiry as to whether the person is able to pay the underlying debt, and it sends people to prison for five years when they have been arrested three times for driving on a suspended license.³⁴ Needless to say, many people take the risk because they have no choice. Florida’s Chief Justice Labarga said at a conference I attended at the White House, “Florida loves to suspend driver’s licenses. If you spit on the street you lose your license.”

Texas has about 1.2 million residents who have lost their licenses, and Florida has about 700,000.³⁵ When people in those states have unmanageable debts due to repeated arrests for driving on a suspended license, the next step is jail, whether they are indigent or not. Eight of the fifteen states studied in a landmark 2010 Brennan Center report suspend driver’s licenses to punish missed criminal court debt payments.³⁶

Nor are suspensions confined to traffic infractions. Montana suspends licenses for unpaid student loans. Iowa suspends for public drunkenness, with no car involved. Other states suspend for writing bad checks, graffiti, and littering.³⁷ In 2012, Tennessee added a category of suspensions for non-traffic-related offenses and now has 90,000 suspensions in that category to go with its 170,000 suspensions for traffic-related offenses.³⁸ A study by Robert Eger III of the Naval Post-Graduate School in Monterey, California, reported that at least eighteen states suspend for not paying the fines on non-driving traffic violations, adding up to 40 percent of all license suspensions nationally.³⁹

People with means can often forestall suspensions by paying fines and fees, steep as they are, while those without means will be trapped in the vicious circle of repeated suspensions and ever deepening debt. Of course, some who drive under the influence deserve to lose their license, regardless of their income. On the other hand, some suspensions for unrelated behavior are unfair for everyone and should be repealed. So long as those are operative, though, the people with means will be finished with the courts after one suspension, while those without means will most likely join the treadmill of repeated suspensions and further fines and fees.

“PAY TO STAY”

The size of a convicted person’s criminal debt continues to mount while she is in prison and on parole—a further criminalization of poverty originating in the omnivorous search for revenue. Outrageous as the destruction wrought by the dark farce of “pay or stay” is, charging the poor for their incarceration—“pay to stay”—sinks to even lower depths.

National Public Radio reports that forty-one states charge for room and board in prisons and jails.⁴⁰ Riverside County in California charges $142 a day to stay in its jail.⁴¹ Nor is it only room and board. A convicted person is charged for such things as criminal lab fees, administrative fees, fees associated with the emergency response to the crime, funds for prison construction, and even prosecution reimbursement. Inmates are typically charged for medical expenses.⁴² This is as true in juvenile courts as it is in adult courts.⁴³ In Dallas an inmate was found unresponsive in solitary confinement and taken to the hospital, where he was pronounced dead. The City of Dallas sent his father an invoice for more than $1,000 for the ambulance ride.⁴⁴

The charges begin with diversion, the otherwise salutary policy of avoiding a criminal record for a minor offense. Too often, though, diversion is available only at a price and therefore is inaccessible to people with low incomes. In a national New York Times survey of two hundred defense lawyers, two-thirds said their clients were effectively barred from diversion programs by the fees. And the price can be steep—up to $5,000 for drunken driving in Dothan, Alabama, for example.⁴⁵

The squeeze goes on through parole. Texas inmates on parole owe $500 to $2,000 in offense-related debt. County clerks have at least thirty-nine categories of court costs in misdemeanors and thirty-five types in felony cases.⁴⁶ If you think the state does not actually try to collect, think again. The Illinois Department of Corrections sued Johnny Melton and won a judgment for almost $20,000 to cover the fifteen months he was in prison for a drug conviction. He had received part of a settlement of a lawsuit over his late mother’s will that was supposed to help him upon his release, but instead he was homeless after he was paroled, his money seized by the courts to pay for his imprisonment. Shortly thereafter he died, destitute.⁴⁷ Melvin Moore inherited close to $14,000 from his grandmother, which stimulated a lawsuit suing him for $338,650 for his twenty years in prison and a verdict for all but $4,000 of his inheritance, which was protected by law.

It is easy to see how people end up never being able to pay off everything. The oft-heard phrases “school-to-prison pipeline” and “cradle-to-prison pipeline” are in fact too narrow. Along with the many collateral consequences following incarceration and even arrests, we have developed a criminal justice system in America that ensures a “cradle-to-coffin pipeline.”