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States Still Using Unconstitutional Debtors Prisons to Jail the Poor

The landmark 1983 U.S. Supreme Court decision Bearden v. Georgia reaffirmed the outlaw of so-called "debtors prisons"—the practice of incarcerating indigent people for being unable to pay off their debts—and requires that judges consider whether defendants are too broke to pay their court fines or if they are "willfully" refusing to pay before locking them up.

Constitutionally speaking, debtor’s prisons have been illegal for nearly 200 years.

And yet, according to a National Public Radio (NPR) news investigation published online in May 2014, people go to jail everyday across the country for failing to pay their court fines. According to reports, up to 90% of people convicted of crimes are too poor to pay such costs.

The problem, NPR reports, is two-fold. First, politicians—empowered by taxpaying voters who believe they are overburdened by government spending— have increasingly transferred the costs of the criminal justice system ($67 billion in 2010, according to the Bureau of Justice Statistics) directly onto defendants and offenders, causing "the poor to face harsher treatment than others who commit identical crimes and can afford to pay," NPR's investigation found.

Second, there are "wide discrepancies" nationwide, according to NPR, in how judges decide what it means to "willfully" avoid paying one's fines and fees. Many judges won't even grant a defendant a hearing to determine his or her indigent status—as is their right—because they don’t want to bog down the court's schedule.

Instead, judges blindly follow recommendations from parole or probation officers, or they substitute fact-finding with broad generalizations when deciding whether or not to incarcerate someone.

"It's not that it's wrong to charge people money as a way to punish them," says Miriam Aukerman, an attorney with the Michigan chapter of the American Civil Liberties Union (ACLU). "But there have to be alternatives for people who can't pay. And that alternative cannot be: incarceration if you're poor, payment if you're rich."

A state-by-state survey by NPR of this "user-pay system" found that defendants are now charged for a laundry list of government services—many of which are constitutionally guaranteed—that were once billed entirely to the taxpayers who decided they should be placed in the criminal justice system in the first place.

For example, in at least 41 states, prisoners can be charged room and board while serving their sentences in jails and prisons. In at least 44 states, offenders can be billed for their own post-incarceration supervision. Forty-three states, astoundingly, bill the accused for using a public defender. And in every state except Hawaii, and the District of Columbia, defendants and offenders ordered to wear electronic monitoring devices are forced to pay for them themselves.

Some states make defendants pay for their own arrest warrants, their court-ordered drug and alcohol-abuse treatment, and for the collection of their own DNA.

In the state of Washington, criminal defendants have to pay to have their day in court: $250 for a 12-person jury trial, and half that amount for a six- person jury. If a defendant tells the court he or she is too poor to pay, the state then charges the defendant to evaluate their indigence. And then, if the defendant qualifies for legal aid—because they are impoverished—they still have to pay a sliding scale fee to a public defender, based on the severity of the crime with which they are charged. (The statewide minimum is $600.)

According to a January 2014 report by the ACLU and Columbia Legal Services (CLS), the average fees—called Legal Financial Obligations (LFOs) in Washington state—imposed in felony cases is more than $2,500. Missed payments incur 12% interest. And not paying usually results in jail time.

James Nason, a 33-year-old homeless man living out of his car, was found by a Washington court to be willfully delinquent in paying his court debts because, a judge told him, he  could have          collected              and sold aluminum cans to settle his debts. The court sentenced him to 120  days in jail, plus another 60 days if he still did not pay. The ACLU filed an amicus brief appealing the ruling on Nason's behalf and presented evidence that showed Nason would have to collect 320,000 cans to pay off the debt. Nason was also convicted in 1999 of stealing a couple of paper bags from a storage shed. He was actually sentenced to 30 days in jail for that "crime" and ordered to pay a whopping $735 in court costs. When Nason couldn't pay, he was sent back to jail and served another 300 days.

"(Defendants) are brought before the court oftentimes without any meaningful investigation into their ability to pay and the court will throw them in jail for up to a year for what are low-level underlying offenses," said Nick Allen, a CLS lawyer in Seattle.

In Benton County, Washington—which collected $13 million in fines and fees in 2012—Superior Court Judge Robert Swisher sends poor people to jail based on how they look.

"They come in wearing expensive jackets," Swisher says of defendants who wear NFL football gear. "Or maybe a thousand dollars' worth of tattoos on their arms. And they say, 'I'm just living on handouts.'"

Of course, Bearden requires that Swisher and other judges base their decisions to jail or not to jail for failing to pay court fines on something more formal than a defendant's appearance. But that takes time and compassion, commodities that are increasingly spare in courthouses nationwide.

In Michigan, defendants find themselves paying hundreds or sometimes thousands of dollars in vaguely-worded "court costs."

After pleading guilty to forging a prescription for pain medication, Frederick Cunningham was ordered by an Allegan County, Mich., judge to pay $1,000 in those so-called court costs. Cunningham, who challenged those fees, found out that $500 of that amount was used to help pay salaries for court employees, for courthouse heat, telephones, copy machines and even the costs of the gym for county employees. The other $500 was used to reimburse the program that paid for Cunningham's court-appointed attorney.

"The only reason that the court is in operation and doing business at that point in time is because that defendant has come in and is a user of those services," said Allegan County Circuit Court administrator Michael Day, in defense of the fees. "They don't necessarily see themselves as a customer because, obviously, they're not choosing to be there. But in reality they are."

In Augusta, Georgia, Tom Barrett pleaded no contest to stealing a can of beer from a gas station convenience store in 2012. He had recently been homeless, but was then living in a subsidized apartment that cost him $25 a month. He paid that by selling his plasma at a local blood bank.

At one time, Barrett was a pharmacist, living a middle-class life with a beautiful family. But after he became addicted to the same drugs he kept behind the counter, Barrett lost it all.

A judge sentenced Barrett to 12 months of probation for stealing the can of beer and allowed him to avoid jail if he agreed to wear an ankle bracelet. Problem was, he'd have to pay for it himself.

The bracelet cost $12 a day. There was a $50 set-up fee, a monthly fee of $39 to be paid to the private probation company contracted to supervise Barrett, and an installment fee for a land-line phone in his apartment. The total cost of Barrett's freedom for stealing a can of beer: more than $400 a month.

When he couldn't afford to pay it, he was arrested and locked up for a year.

The jail time "didn't seem like justice," Barrett said. "I should not have taken that beer. I was dead wrong (to do it). But to spend 12 months in jail for stealing one can of beer? It just didn't seem right."

Allen, the CLS lawyer, says the user-pay criminal justice system simply doesn't work. And record-keeping is too inconsistent to calculate the cost benefit.

"We believe that the cost outweighs what counties are pulling in,"

Allen says. "If you look at court time, law-enforcement time, cost to the individuals who are being jailed for non-payment, you are talking about amounts that outweigh whatever is coming in to the jurisdictions."


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