In the past few weeks, the New York Times, Washington Post, and Seattle Times have published articles documenting the cruelty of debt-related incarceration. In New Orleans, there is litigation alleging that court officials are unconstitutionally jailing people who fall behind on payment of court fees and fines. That allegation is believable considering the city’s unabashed reliance on fines and fees to pay operating costs. There is similar litigation in Tennessee, where Providence Community Corrections, a private probation company, is accused of refusing to waive fees for the indigent and imprisoning people for failure to pay for traffic violations. One probationer allegedly sold blood plasma to pay off fines. The American Civil Liberties Union of Washington filed a similar lawsuit this month, alleging that more than a quarter of the people on Benton County’s jail roster were housed for nonpayment of fines and fees. Of course, there is also the federal government’s recent revelation that fees and fines helped bankroll Ferguson, Missouri’s municipal government.
But this is hardly new. Debt-related imprisonment, and its cousin, convict leasing, helped buoy the Southern economy after the Civil War. The practice continued into the 20th century. African-American activist Mary Church Terell put it plainly in 1907: “the relationship between debt peonage and disfranchisement is intimate and close.” In her 2015 study on convict labor by black women, historian Talitha LeFlouria echoes Terrell. She argues that, after the discontinuance of formal slavery, debt peonage shifted power back to white planters, “giving them the legal power to purchase black farm labor from county courthouses.”
While the Supreme Court hemmed and hawed on the boundaries of debt-related imprisonment in the early 1900s, cases from the latter part of the 20th century have established the rights of debtor-convicts. In Williams v. Illinois, for instance, a 1970 case involving a Chicago man convicted of petty theft, a unanimous Court held that indigence or inability to pay does not justify incarcerating an individual beyond the maximum period fixed by statute. A year later, in 1971, the Court unanimously held that the state can’t impose a fine as a sentence and subsequently convert it to a jail term because the defendant can’t pay. Finally, in a 1983 case, the Court ruled that the state could not revoke a defendant’s probation because of failure to pay a fine without showing that he was responsible for that failure. Although these cases were decided during the nascent stages of the conservative law-and-order movement, Justices of all ideological stripes agreed on the inappropriateness of imprisoning people because of indigence.
Oh well. That seems to not matter these days. Alexes Harris is one of the leading scholars on criminal justice debt. In an important article in the American Journal of Sociology, Harris and her colleagues found that, nationally, two-thirds of felons are subject to monetary sanctions. She has also noted, in the Los Angeles Times, that, across the country, defendants are required to pay for costs related to “their public defender, DNA collection, jury, court paperwork, room and board in prison, electronic monitoring, probation, even for collection of the debt itself.” The Brennan Center for Justice has detailed how probation and parole are often revoked or not granted because of debt. It has also detailed how debt jeopardizes access to public benefits, housing, and employment. You do not need a creative imagination to guess which racial and ethnic groups are most impacted by this kind of debt (or to predict what kind of consequences it might have for their already-precarious credit histories).
With the 2016 election approaching, Democratic candidates would benefit from considering this problem more thoroughly. For example, a recent study found that eleven states condition restoration of some ex-felons’ voting rights on payments of criminal justice debt. That study, which focused on Alabama, showed that blacks are 10 percent more likely to owe a balance on their debts. In fact, scholars Jeff Manza and Christopher Uggen have hypothesized that felon disenfranchisement might be the reason Al Gore lost Florida in 2000.
If conservatives are sincere about penal reform, this issue is pertinent for them too. Their criminal justice policies emphasize the importance of efficiency and cost-cutting. The cost-effectiveness of incarcerating poor people should at least be an object of inquiry for them.
It’s clear that police killings of citizens and racial profiling are urgent issues that demand attention. But they are only two issues in a larger assortment of problems with our legal system. Criminal justice debt, which touches a large percentage of our citizenry, and which impacts people beyond the offender, also deserves our scrutiny.
Virginia Law Review, Vol. 2, No. 5 (1915), pp. 385-390
Virginia Law Review
Columbia Law Review, Vol. 4, No. 4 (1904), pp. 279-286
Columbia Law Review Association, Inc.
American Journal of Sociology, Vol. 115, No. 6, (2010), pp. 1753-1799)
The University of Chicago Press