OPINION
02/01/2018 12:48 pm ET Updated Feb 12, 2018

Jailed For Being Too Poor

Gautham Vijayakumar / EyeEm via Getty Images

Struggling to feed his family, Rozzie Scott was arrested for stealing $5 worth of food and ordered by the court to pay a $450 fine plus court costs. When he told the judge he didn’t have the money, he was sent to jail.

While reminiscent of a Dickens novel, this incident sadly recounts real-life treatment by the Louisiana court system. And it formed the basis of a Southern Poverty Law Center lawsuit two years ago against the judge and city court for operating a “modern day debtor’s prison.”

Scott’s story isn’t an anomaly. The Louisiana litigation revealed that as much as $1 out of every $5 of court revenue came from fines and fees — much of it from people whose alleged offenses stemmed from their poverty. The lawsuit resulted in a settlement last year, mandating that the court provide new protections to ensure poor defendants are not jailed simply because they cannot afford to pay court assessments.

Though “debtors’ prisons” — the practice of jailing people for being too poor to pay civil debts — are illegal, criminal justice system debt that leads to jailing the poor remains widespread. Research has found that 20 percent of individuals in local jails are incarcerated because of failure to pay a fee or fine.

The impact of these penalties can perpetuate cycles of poverty and incarceration. In many states, drivers’ licenses are suspended indiscriminately based on nonpayment of justice-related debts, whether or not the violation or conduct at issue had anything to do with unsafe or illegal driving. Individuals are then forced to choose between driving without a license — to hold down jobs so they can reduce their debt, support their family and pay taxes — or forgoing work and family obligations. Driving without a license can then become a recipe for incarceration and a further pathway into the criminal justice system.

Wealth should not determine who gets a second chance.

Though some fines are ostensibly intended to deter future criminal behavior, in practice they often detract from public safety. Research from the Brennan Center for Justice found that debt is a barrier to reentry, making finding legal employment and self-sufficiency even more difficult. Not surprisingly, debt has been found to increase the likelihood of recidivism among juveniles who have had contact with the justice system.

Some justify the imposition of fines and fees as necessary for generating revenue to support court operations, but the reality is far murkier. Few jurisdictions know whether costs outweigh benefits. From collections costs — which can include tracking, pursuing and even prosecuting non-payment — to the long-term economic costs, fines and fees are not a viable solution to shrinking government budgets. 

Even worse, with fines set based on the offense ― not on the defendant’s income ― and falling most heavily on people of color, they violate central tenets of fairness and equal protection. We saw this play out tragically in Ferguson, Missouri, around the shooting of Michael Brown. In its investigation of that 2014 shooting, the Department of Justice found that the Ferguson Municipal Court emphasized revenue over public safety in levying fees and fines, and in doing so, disproportionately created a hardship on the city’s most vulnerable residents ― those living in or near poverty.

And on a basic level, the use of fines and fees to raise funds implicates conflict of interest concerns. If court decisions are based on revenue generation, not the advancement of justice, the right to due process is imperiled.

If court decisions are based on revenue generation, not the advancement of justice, the right to due process is imperiled.

A new and bipartisan wave of elected prosecutors are seeking to address these concerns. Fair and Just Prosecution, where I serve as executive director, recently brought together a group of prosecutors from jurisdictions large, small and geographically diverse to consider how to reform current practices.

Some, like State Attorney Andrew Warren in Tampa, Florida, have decided to forgo pursuing incarceration for people driving on licenses suspended for failing to pay fines. The California legislature similarly outlawed driver’s license suspension for non-payment of fines. And Jacksonville State Attorney Melissa Nelson is looking at ways to reinstate suspended drivers’ licenses.

In other parts of the country, alternatives to fines and fees are being pursued as well. In San Francisco, indigent defendants charged with “quality of life” citations are given meaningful alternatives to fines and jail stays. Depending on their unique needs, the district attorney may waive citations if defendants receive substance use treatment, counseling or medical help.

While many fines and fees are set by courts and state legislatures, prosecutors have control over the costs of some diversion programs. Diversion is a powerful tool to hold individuals accountable while helping them avoid the harmful impacts that flow from arrest, prosecution and incarceration. Such options should not be available only to those who can afford to pay. The state attorney in Chicago, for example, operates some fee-free diversion programs, recognizing that wealth should not determine who gets a second chance.

Part of the SPLC settlement requires the Louisiana court to determine whether individuals are indigent before incarcerating them for non-payment. Prosecutors should routinely advocate for an assessment of an individual’s ability to pay before fines and fees are levied, refuse to prosecute non-payment except in cases of clearly willful refusal, and ensure that defendants have representation whenever decisions could result in incarceration. 

To date, prosecutors have played only a small role in the fines and fees debate. More must be done to reverse these disturbing practices.

Prosecutors hold immense authority as justice system leaders. They should use their positions to bring together legislators, law enforcement officials, judges and defense counsel, among others, to work to ensure the justice system advances justice, not cycles of poverty. 

Miriam Aroni Krinsky spent 15 years as a federal prosecutor and is the executive director of Fair and Just Prosecution, a national network of elected prosecutors committed to innovation.   

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