Too Poor to Pay? Do not pass go, go directly to jail!

By Marjorie R. Esman
Guest Columnist

In the landmark 1983 case, Bearden v. Georgia, the United States Supreme Court ruled that a man’s Constitutional rights were violated when he was imprisoned for his inability to pay his court-ordered fines and fees. The Court held that before sentencing someone to jail time for failure to pay, a sentencing court must investigate the person’s ability to pay; to imprison someone merely because of poverty would be fundamentally unfair. Yet 30 years later, courts across the U.S. operate illegally by doing just that. Every day people go to jail because they didn’t pay a court imposed fee, fine or other form of restitution. And that list of fees seems to grow larger every day. This amounts to sentencing the poor simply because they are poor, and contributes to the over-representation of the poor in our jails and prisons.

Courts funded on backs of the poor

Exacerbating the problem is the practice of making criminal defendants pay for the costs of their prosecutions. To fund their operations, courts across the U.S. have created a list of fees that defendants must pay at practically every stage in the process: fees to public defenders; jail and prison fees; court fees; and fees for probation and parole; even fees that go to the prosecution. Currently 43 states charge for public defenders; 41 states charge room and board and 44 states charge the defendant for a parole officer. But what happens when a defendant can’t afford to pay? Depending on the judge, that person could end up behind bars. This new version of debtors’ prisons is illegal; and this two-tiered system of justice, where the affluent go home and the poor go to jail, has called the system’s integrity into question. According to a recent NPR report, Louisiana charges a $45 fee to defendants, but only if they plead guilty or are convicted. “Some people refer to it as the ‘bad person’ tax,” says Derwyn Bunton, New Orleans’ Chief District Defender. And, he says it puts him in a weird and uncomfortable position. “We have a system that has created a perverse incentive. We need crime, otherwise the system falls down.” He goes on to say, “I’m very sympathetic to clients who feel like, ‘you make money if I go down. You don’t make a thing if I’m innocent. Should I even believe that you care if I’m innocent?”

And judges often face pressure from their colleagues to collect more fines, which are a main revenue source for operating funds and for things like court improvements and equipment purchases. In the 2010 ACLU report, In for a Penny, retired Criminal District Court Judge Calvin Johnson said that during his time on the bench, “poor courts”—sections which collect little from defendants—did not have the same amenities as sections that assess fines and fees sufficient to satisfy their needs.

Incarceration costs more

In Louisiana, a homeless construction worker was assessed $498 in fines and costs when he was convicted of possession of marijuana in 2007. He was arrested two years later after failing to pay his legal debt and spent five months in jail at a cost of more than $3,000 to the City of New Orleans. In one two-week period in May, 2014, 16 men in New Orleans were sentenced to serve jail time when they could not pay their legal financial obligations (LFOs). If they served their complete sentences, their incarceration would cost the City of New Orleans over $1,000 more than their total unpaid legal debts. Often, it amounts to double sentencing, with people facing jail instead of paying fees after having already served their sentences. This creates a cycle of collateral consequences that work against a defendant who is already struggling. Someone in jail is likely to lose a job and may have trouble paying rent, leading to an escalating cycle of debt and crisis. Today’s aggressive push for fees rarely takes these realities into account, rendering the entire process counter-productive. Moreover, the practice of jailing people for their inability to pay fines increases recidivism among former inmates, who often have a difficult time obtaining employment. Up to 60 percent of former inmates are unemployed one year after release. Unable to secure a job, but facing a backlog of court-ordered fines, former inmates are likely to end up back in jail simply because they are poor.

Options to Incarceration

A major loophole in the 1983 Beardon decision gave judges the discretion to decide whether a person was unwilling to pay or couldn’t afford to. But the decision requires those who can afford their debts to pay them. Judges must look for alternatives to jail time for people who cannot afford to pay fines or fees. Ohio’s Supreme Court recently issued a “bench card” to all state courts outlining alternatives to incarceration, including the establishment of payment plans; forfeiture of drivers’ licenses and outlining procedures to determine someone’s ability to pay. Judges also have the right to waive fees if they choose. Court initiated efforts to help defendants find employment, job referrals, training programs and community service are also viable options.

Conventional debtors’ prisons were outlawed in the U.S. in the 1830s. Prison for failure to pay court ordered fees was outlawed a century and half later. Yet still, people go to jail because they are poor. At the end of the day, charging people who are unable to pay doesn’t raise revenues. In fact, it costs local and state governments much more and, ultimately, it increases the likelihood of recidivism. It’s a bad idea, it’s against the law, and it makes no sense. It’s time for this to stop.

This article originally published in the June 16, 2014 print edition of The Louisiana Weekly newspaper.