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Report Finds Charging Criminal Justice Fees Perpetuates Mass Incarceration

The Brennan Center for Justice at New York University’s School of Law released a report in May 2015 titled, “Charging Inmates Perpetuates Mass Incarceration.”

Mass incarceration refers to the fact that the United States, which has around 5% of the world’s population, holds almost 25% of the world’s prisoners – currently about 2.2 million in state and federal prisons and jails. “Since the 1970s, incarceration in the U.S. has risen steeply, dwarfing the incarceration rate of any other nation on Earth,” the Brennan Center stated.

The report also noted that mass incarceration is expensive, as our nation’s corrections system costs an estimated $80 billion per year. Prison is the third-largest spending category in most states, after education and health care; a 2015 report by the American Academy of Arts & Sciences found that 11 states spent more on corrections than higher education in FY 2013. Those states were Michigan, Oregon, Arizona, Vermont, Colorado, Pennsylvania, New Hampshire, Delaware, Rhode Island, Massachusetts and Connecticut.

Reluctant to raise taxes, lawmakers have sought another source of revenue to pay for criminal justice costs, and courts and corrections officials are increasingly charging defendants, prisoners, probationers and parolees for various “services” such as booking, transportation, electronic monitoring, drug tests, medical care and sex offender registration. [See: PLN, May 2011, p.40]. Some jails even charge daily pay-to-stay fees, as if incarceration was the equivalent of staying in a hotel – albeit one in which the guests are not allowed to leave. [See: PLN, Feb. 2013, p.30].

According to the Brennan Center report, “an estimated 10 million people owe more than $50 billion in debt resulting from their involvement in the criminal justice system.”

Unlike traditional fines, which are intended to punish, or restitution, which is intended to compensate crime victims, “user fees” in the criminal justice system have the sole purpose of generating revenue. Unsurprisingly, this has led to abuses.

In a March 2015 report, the U.S. Department of Justice described how Ferguson, Missouri and several other municipalities in St. Louis County had developed a revenue-based justice system that used citations, fines and court costs as a primary source of revenue. This resulted in city officials pushing police officers to issue more tickets to collect more fees, driving a wedge between the police and the community. [See: PLN, Dec. 2016, p.54].

Likewise, relying on criminal justice user fees to finance courts and corrections systems causes defendants to go into debt, and they are thus more likely to return to prison or jail after they’re released.

For example, probationers and parolees can be incarcerated for failing to pay their supervision fees, including fees for electronic monitoring. Tacked onto those costs can be expenses resulting from periods of incarceration – such as booking fees, medical co-pays and pay-to-stay jail charges. According to the Brennan Center, 35 states have enacted laws that allow prisons and jails to charge prisoners for medical care.

Other costs are imposed on prisoners’ families, including high telephone rates, fees for sending money to prisoners and charges for video visits – the only visitation option in some jails. Aside from these costs, some jurisdictions have found other ways to impose fees on prisoners’ family members and friends. In Arizona, for example, state prisons charge a one-time $25 fee for people who want in-person visits with their incarcerated loved ones.

The Brennan Center report noted that 43 states have enacted laws that allow for some form of jail user fees. And for those on community supervision, probation and parole fees range up to $100 per month, while electronic monitoring can be higher than $300 monthly.

Mandatory substance abuse or sex offender counseling, drug testing, polygraph exams and sex offender registration fees can add hundreds more to monthly costs.

People who fail to pay criminal justice user fees may be subject to harsh collection methods and have their driver’s licenses or professional licenses suspended, making it more difficult for them to find jobs. If they are caught driving on a suspended license, they may face jail time and additional fees stemming from the new charges. Further, in some jurisdictions the failure to pay user fees may itself result in incarceration through the practice of debtors’ prisons, which are increasingly facing legal challenges. [See: PLN, July 2016, p.52; Feb. 2016, p.61].

“It’s not that it’s wrong to charge people money as a way to punish them,” said Miriam Aukerman, an attorney with the Michigan 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.”

As one example of the effects of criminal justice user fees, consider the case of Tom Barrett, who pleaded no contest to stealing a can of beer from a convenience store in Augusta, Georgia in 2012.

He had recently been homeless, but was living in a subsidized apartment that cost him $25 a month. He sold his plasma at a local blood bank.

At one time Barrett was a pharmacist, living a middle-class life with his family. But after he became addicted to the same drugs he kept behind the counter, he lost everything. A judge sentenced Barrett to 12 months of probation for stealing the beer and allowed him to avoid jail time if he agreed to wear an electronic monitor ankle bracelet.

But the monitor cost $12 a day – $360 per month. There was a $50 set-up fee, a $39 monthly fee to be paid to the private probation company contracted to supervise Barrett and an installment fee for a landline phone in his apartment. The total cost of Barrett’s freedom for stealing a can of beer was more than $400 a month.

When he couldn’t afford to pay, he was arrested and locked up to serve his year-long sentence. The jail time “didn’t seem like justice,” Barrett said. “I should not have taken that beer. I was dead wrong. But to spend 12 months in jail for stealing one can of beer? It just didn’t seem right.”

Additionally, in one of the most egregious practices of revenue-based criminal justice systems, some states allow defendants to be charged for the cost of their public defenders. The Brennan Center noted that 13 of the 15 states with the highest prison populations in the nation have laws that let them charge all – not just indigent – defendants for the services of public defenders. In one Michigan county, that had the effect of causing 95% of defendants charged with misdemeanors to waive their Constitutionally-guaranteed right to counsel.

Perhaps the most telling aspect of criminal justice user fees is that they often operate at a loss. Most prisoners are indigent and cannot pay while incarcerated, and the cost of collecting arrearages after they are released often exceeds the revenue raised by the fees. However, the human costs, in terms of the impact on people’s lives, can be significant.

Sources: “Charging Inmates Perpetuates Mass Incarceration,” Brennan Center for Justice (May 2015);;;

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