How Our User-Pay Justice System Drives Mass Incarceration
by Jon Wool (Director, Vera Institute of Justice New Orleans Office)
A few years ago, when the district attorney in New Orleans proposed shifting misdemeanor marijuana cases from the state court to the municipal court, the state court judges objected. To the casual observer their response may have been confusing; why would anyone object to less work?
More recently, when New Orleans community leaders, the mayor, and city council called for releasing people who pose little risk and are held in jail only because they can’t post bail, the judges resisted that too, despite the fact that New Orleans until recently jailed more people per capita than any other American city.
Logical? In fact, yes, once you understand that a large part of our local justice system is funded by fines and fees extracted from so-called “users” of the system, even though 80 percent of these users are too poor to hire their own lawyer. This method of funding the system is common across the country.
Under Louisiana law, to be released pretrial, anyone who has a financial bail set—or his or her family—must pay a premium of 10 percent to a commercial bail bondsmen (unless they can afford to pay 100 percent in cash). But, they also must pay fees to the court, the prosecutor, the public defender, and the sheriff totaling three percent of the bail amount set by the judge. The premium and fees are non-refundable even if the person makes every court appearance and is never prosecuted or convicted. At the back end of the criminal case, additional fees—some mandatory, some discretionary—are levied on people who are convicted of crimes. Paid principally to the court, but also to other agencies including the public defender representing the indigent defendant, one person’s fees may total $2,000 or more.
Judges may feel they have only one tool at their disposal to try to extract this needed revenue from poor people: the threat of jail. Jail is used pretrial for those who can’t pay their bail and associated fees, and after sentencing, for those who can’t pay conviction fees. So when the judges try to hold on to misdemeanor marijuana cases or resist releasing low-risk defendants without a financial bail, they may be seeking to hold defendants accountable, but the difficult truth is that they’re preserving a steady stream of revenue. Writ large, this system represents an extraordinarily regressive tax—a transfer of scarce assets from poor communities to government institutions and commercial interests.
Sound familiar? It should. It is well known that economic incentives drive growth in many aspects of the justice system. Private corrections companies, correctional unions, and officials seeking to support local economies help drive the building and use of prisons and jails. But too few know that justice systems throughout the country have become bloated on over-arrest and over-detention, in part because they have been starved of other revenue streams and have mutated into money-hungry industries. These systems fuel mass incarceration by tapping the greatest possible revenues, with terrible consequences for those tapped: poor people, particularly in communities of color. Many blame the people who keep cycling through the system door, arrest after arrest. Few are aware of the cyclical behavior of legislators and criminal justice system actors who have created and become dependent on the revenues that are generated, arrest after arrest. The economics of criminalization and incarceration is an insufficiently understood driver of mass incarceration which we must begin to unpack and roll back.
The US Department of Justice (DOJ) is trying to stimulate a new approach by spotlighting these unjust practices and their consequences. In March, DOJ wrote a letter to every state chief judge addressing “illegal enforcement of fines and fees,” noting that they are among “the most common practices that run afoul of the United States Constitution. Although DOJ’s letter focuses on fines and fees levied after conviction, it calls out a front-end practice prevalent in almost every court in the country, despite, as DOJ says, being illegal: “Courts must not use bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.” State legislators and local officials should use DOJ’s spotlight to build urgency about undoing the harms of user-pay justice systems, including the financial harms cities and counties suffer.
But how? An answer may lie in the fact that not only the poor and powerless must pay by going to jail; cities and counties also pay for operating that jail. Jails eat up an enormous portion of the municipal or county budget, much of it due to the $100 or more per person, per day it costs to jail those too poor to pay for their release. Communities that rely heavily on user-generated revenues may be able to save money by ending that reliance and by directly funding their courts and other user-dependent justice system functions. Full direct funding would also allow the community to hold its justice system accountable for good performance and desirable outcomes, including less unnecessary detention, stimulating a positive criminal justice cycle.
The first step—which we are taking in New Orleans—is to unravel these perverse incentives, hidden costs, and financial beneficiaries—and compare them to how the system would operate if we set clear public safety priorities and funded them directly. In a new initiative announced today, we are testing the hypothesis that direct funding would save our city money at the same time as it would keep thousands of residents from being jailed for being poor. Seeking to fund the criminal justice system through fees imposed on the people the system arrests and detains—the great majority of whom are poor—is a shameful, counterproductive, and ultimately doomed enterprise. We can fund criminal justice in a way that produces more justice at less human and financial cost.