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The Debt Penalty: Financial Barriers to Offender Reintegration, John Jay College, 2014

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The Debt Penalty
Exposing the Financial Barriers
to Offender Reintegration
Douglas N. Evans
Research & Evaluation Center
John Jay College of Criminal Justice
August 2014

ACKNOWLEDGMENTS |
Preparation of this report was supported by a grant from Justice Fellowship.
The author wishes to thank the members of Justice Fellowship, specifically Craig
DeRoche, Jesse Wiese, David Eber, and Karen Strong, for their guidance and
support during the development of this report. This report would not have been
possible without contributions from other staff in the Research & Evaluation
Center, including Hannah Adler, Marissa Mandala, Evan Misshula, Sheyla Delgado,
Kathy Tomberg, and Jeffrey Butts.

www.justicefellowship.org

Copyright by the Research & Evaluation Center, John Jay College of Criminal
Justice, City University of New York (CUNY).
John Jay College of Criminal Justice
524 59th Street
New York, NY 10019
www.johnjayrec.org
Published online August 2014
Any views expressed here are those of the author and do not necessarily reflect
the policies of John Jay College, the City University of New York, or its funders.
Recommended Citation
Evans, Douglas (2014). The Debt Penalty — Exposing the Financial Barriers to
Offender Reintegration. New York, NY: Research & Evaluation Center, John Jay
College of Criminal Justice, City University of New York.
Author
Douglas Evans is a project director with the Research and Evaluation Center at
John Jay College of Criminal Justice, City University of New York (CUNY). He
earned the Ph.D. from Indiana University, Bloomington.

JOHN JAY COLLEGE OF CRIMINAL JUSTICE / CITY UNIVERSITY OF NEW YORK

RESEARCH & EVALUATION CENTER

summary |
Financial debt associated with legal system involvement is a pressing issue that
affects the criminal justice system, offenders, and taxpayers. Mere contact with
the criminal justice system often results in fees and fines that increase with
progression through the system. Criminal justice fines and fees punish offenders
and are designed to generate revenue for legal systems that are operating on
limited budgets. However, fines and fees often fail to accomplish this second goal
because many offenders are too poor to pay them. To compound their financial
struggles, offenders may be subject to other financial obligations, such as child
support payments and restitution requirements. If they do not pay their financial
obligations, they may be subject to late fees and interest requirements, all of
which accumulate into massive debt over time. Even if they want to pay, offenders
have limited prospects for meaningful employment and face wage disparities
resulting from their criminal history, which makes it even more difficult to pay
off their debt. An inability to pay off financial debt increases the possibility that
offenders will commit new offenses and return to the criminal justice system.
Some courts re-incarcerate offenders simply because they are unable to settle
their financial obligations. Imposing financial obligations and monetary penalties
on offenders – a group that is overwhelmingly indigent – is not tenable. States
often expend more resources attempting to recoup outstanding debt from
offenders than they are able to collect from those who pay. This report explores
the causes and effects of perpetual criminal debt and offers solutions for
encouraging ex-offender payment.

JOHN JAY COLLEGE OF CRIMINAL JUSTICE / CITY UNIVERSITY OF NEW YORK

RESEARCH & EVALUATION CENTER

INTroduction |
The criminal justice system saddles offenders with financial obligations at
nearly every stage of the legal process. Two primary justifications underlie
these obligations: punishment and revenue generation. Legal systems impose
fines, fees, and restitution requirements as a punitive measure intended to
deter offenders from future crime. In addition to their punitive value, financial
obligations are intended to generate revenue for criminal justice systems. Few
would argue against funding at least a part of the criminal justice system by
charging offenders. However, the majority of offenders are indigent unable
to pay (Patel and Philip 2012). If they do not pay, they face perpetual late
fees, high interest penalties, bad credit, mounting debt and the possibility of
re-incarceration, all of which decrease the likelihood that offenders will ever be
able to settle their legal debts. Paradoxically, criminal justice systems sometimes
spend more on debt collection and punishing offenders who are behind on their
payments than they are likely to recoup from enforcing the financial obligations
of ex-offenders.
Offenders are subject to a number of criminal justice fees that multiply with
deeper involvement in the criminal justice system. If there are victims, offenders
may be responsible for restitution payments. If they have children, they will likely
be required to pay child support. Nonpayment of these obligations has become
a persistent problem despite aggressive attempts to collect outstanding debts.
Most ex-offenders are poor. Many are unable to find meaningful employment or
earn a steady and livable wage. Their financial struggles are compounded by laws
that limit their eligibility to receive public assistance funds. Financial obligations
overwhelmingly consign many ex-offenders to perpetual debt and poverty,
increasing their likelihood of returning to the criminal justice system.

Criminal justice fees
Depending on the jurisdiction, offenders are charged fees at nearly every phase
of the criminal justice process. In addition to fines, interest, and penalties for
late payments, offenders may be required to pay “user fees,” which differ from
court-imposed fines. The sole purpose of user fees is to raise revenue for criminal
justice systems, while court-imposed fines are intended to punish offenders or to
provide financial compensation to victims (Bannon, Nagrecha and Diller 2010).
Because many offenders are indigent and unable to afford payment, financial
burdens can accumulate quickly.
Legislators across the country have created numerous criminal fees and increased
existing fees to offset the high costs of the legal system and incarceration. A
Brennan Center study of the 15 states with the highest prison populations found
that nearly all charge “poverty penalties,” which are added costs (e.g., late fees,
interest, payment plan fees) imposed on individuals who cannot pay criminal
debt all at once. Several states (e.g., California, Florida, Ohio, Texas) charge
public defender fees, which could include a fee to apply for a public defender,
fees for the cost of legal defense, and various administrative court fees (Bannon,
Nagrecha and Diller 2010). Florida, for example, charges misdemeanor offenders
$50 and felony offenders $100 for the cost of a public defender (Diller 2010).

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Every state has a unique set of criminal fees, which could include fees for pre-trial
detention, security in the courtroom, medical expenses during incarceration,
community supervision, drug screens, treatment classes, transfer of community
supervision to a different state, registration (for convicted sex offenders) and
electronic monitoring (Levingston 2008; Bannon, Nagrecha and Diller 2010).
Texas assesses a fee for “judicial fund court costs” ($15) as well as requiring
offenders to pay a string of charges – an arrest fee ($5), a warrant fee ($50), and
a time payment fee ($25) (Sunset Advisory Commission 2007). Washington State
assesses an “insurance policy” fee of $15 per week for individuals sentenced
to community service (Rosenthal and Weissman 2007). Since 1996, Florida has
raised many of its existing fees by $10 to $50 and enacted 20 different fees for
individuals ensnared in the criminal justice system (Diller 2010). These added fees
include requirements that defendants pay for the costs of prosecution (minimum
$50 charge), various surcharges that vary by offense type (a low of $15 for
criminal traffic violations and a high of $151 for assault and battery convictions),
and charges to inmates for subsistence costs while incarcerated (Diller 2010).

Inmate Wages
In 1934, Congress authorized the development of the Federal Prison Industries (FPI), a
government corporation that uses inmate labor. Currently, approximately 20,000 physically-able
inmates work for FPI to produce goods and services that are sold exclusively to government
agencies and never reach commercial markets. FPI work programs generate revenue to fund
the costs of incarceration and to enable inmates to pay restitution and child support obligations
(Solomon, Johnson, Travis and McBride 2004). Inmate workers with financial obligations are
required to pay at least 50 percent of their wages towards their debt (James 2008). FPI pays
inmate workers between $0.23 and $1.15 per hour of work (James 2008). Currently, about 16
percent of eligible inmates in federal prisons work in FPI factories (Federal Bureau of Prisons
2013).
Common prison work assignments include institutional maintenance (janitorial work, laundry),
industry jobs (furniture making, clothing and textile, printing, metal fabrication), and farm work
(Solomon, Johnson, Travis and McBride 2004). Inmates who work while they are incarcerated
earn approximately 90 percent less than minimum wage, making it difficult for them to save
money and provide for their families. However, prison work does have benefits: it reduces idle
time, enhances the development of vocational skills, and allows inmates to contribute some
money to their legal debt and to their families at home (Atkinson and Rostad 2003).
Inmate wages vary by state:
• Massachusetts inmates earn approximately $1 per day of work
• Colorado pays inmates between $0.25 and $2.50 per work day
• California inmates receive between $0.30 and $0.95 per hour prior to deductions
• Kentucky compensates inmates between $0.25 to $0.95 per hour
• South Dakota inmates earn $0.25 per hour although some work assignments are unpaid
• Arkansas, Georgia and Texas do not pay inmates
Sources: Pearson (2004); California Prison Industry Authority (2011); Upton and Harp (2009); South Dakota
Department of Corrections (2013).

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Some jurisdictions may have increased fees in response to citizen complaints
regarding the amount of taxpayer money spent on incarcerating offenders. An
Arizona sheriff proposed charging inmates $1 for every meal (Sign 2013). Officials
in Anderson County, Tennessee proposed a plan to charge jail inmates for the
cost of amenities while they are incarcerated. Inmates would have to pay for
jail-issued pants ($9.15), blankets ($6.26) and toilet paper ($0.29) to defray these
expenses (Rawlings 2013). Riverside County, California already requires financially
solvent inmates to pay the full cost of their incarceration – $142 per day (St. John
2011). A majority of these fees will likely become outstanding debt because they
are imposed on indigent individuals who cannot afford payment (Shookhoff,
Constantino and Elkin 2011).

Examples of User Fees and Penalties for Non-Payment of Criminal Justice
Debt by State
State

Penalties

Florida

Requires offenders to pay for the costs of prosecution irrespective of their ability
to pay.
[§ 938.27(2)(a)]

Michigan

Courts can revoke probation or impose incarceration for those who fail to pay
their debt.
[Act 87 of 1985, 780.826]

Pennsylvania

Denies parole to offenders who are unable to pay a $60 fee.
[18 Pa. Stat. Ann. § 11.1101]

Virginia

Many jurisdictions suspend the driver’s licenses of individuals who miss debt
payments.
[Va. Stat Ann. § 46.2-395(B)]

Alabama

Disenfranchises ex-offenders until they pay all of their criminal justice debt.
[Ala. Code § 15-22-36.1(a)(3)]

California

Charges ex-offenders $300 if they are unable to pay their fines.
[Cal. Penal Code § 1214.1(A)]

Missouri

Individuals can spend time in jail to settle their criminal justice debts. Debtors
are credited $10 for each day imprisoned.
[Mo. Rev. Stat. § 543.270(1)]

North Carolina

Charges at least $95 in general court fees, a $25 late payment fee, and a $20
charge for paying in installments.
[North Carolina Administrative Office of the Courts, Court Costs and Fees Chart]

Source: Bannon, Nagrecha and Diller (2010)

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Restitution
Restitution is one of the few mechanisms by which the criminal justice system
seeks to acknowledge and address the direct impact of crime on victims.
Courts require offenders subject to restitution obligations to provide financial
compensation to victims for loss or damage to their property, lost income due to
missing work, direct medical expenses, and psychological services, among other
things (Reiss 2011).
While restitution payments are an attempt to repair the harm inflicted upon
victims, advocates assert they may also benefit offenders (Dickman 2009).
Requiring offenders to pay restitution compels them to take responsibility
for their offense and to participate actively in compensating their victim(s).
Restitution may have rehabilitative effects as well, particularly for those who
make consistent payments. There is an inverse correlation between paying
restitution and recidivism, such that offenders who pay a high percentage of
their restitution obligations have a lower likelihood of committing a new crime
(Kempinen 2002). The same correlation was not found for payment of criminal
fines, which suggests that paying restitution to victims has a more positive
impact on offender rehabilitation than paying criminal fees to the state (Fetsco
2012).
Nevertheless, restitution debt is massive both at the individual and aggregate
levels. This is particularly concerning because the majority of offenders lack
the financial resources to pay their debts (Dickman 2009). Restitution usually
comprises the largest proportion of criminal debt for individual offenders (Diller
2010). In total, offenders in the United States owe more than $50 billion in
criminal justice debt (National Center for Victims of Crime 2011), and in 2007,
total restitution debt was nearly $40 billion (Dickman 2009). This suggests that
a majority of uncollected criminal debt could be existing restitution obligations.
Uncollected restitution debt means that victims may be left without financial
compensation unless states provide other victim assistance funds.
Nonpayment of restitution obligations is inherently problematic. The Mandatory
Victims Restitution Act requires federal courts to order restitution without
consideration of an offender’s capacity to pay (Dickman 2009). Despite
the inability of most offenders to pay their restitution obligations, criminal
justice officials must attempt to collect this debt. Most collection methods
have not been effective (Ruback and Bergstrom 2006) and result in extensive
administrative costs. Administrative costs increase substantially when offenders
do not pay because officials must spend considerable time (and labor) to
collect unpaid restitution (Dickman 2009). Additional problems with collecting
restitution arise when an offender has multiple victims because there is no
simple method for prioritizing restitution payments to each victim (Ruback and
Bergstrom 2006). Despite the efforts of many jurisdictions to collect unpaid
restitution, the majority of restitution payments remain uncollected (National
Center for Victims of Crime 2011).

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child support
Many offenders are non-custodial parents subject to child support obligations
during and after their release from custody. In some states, child support
debt continues to accumulate while the obligor (person who owes money) is
incarcerated. Approximately 70 percent of incarcerated males between the ages
of 33 and 40 are fathers (Western 2006), and the majority owe child support
arrearages (debt) that they are unable to pay. The current amount of unpaid
child support in the United States is around $100 billion (Patterson 2008). Laws
regarding child support have become more punitive during the past few decades
in response to rampant non-payment. However, many parents who owe child
support are indigent and/or incarcerated and simply have no means to pay. When
states do not have methods for modifying, suspending or forgiving arrearages
for incarcerated parents, inmates accrue immense child support debt during and
following their release from prison (Pearson and Griswold 2005).
Noncustodial parents enter prison owing an average of more than $10,000 in
child support debt (Pearson 2004). By the time they return to society from prison,
noncustodial parents on parole owe thousands more in child support debt
(Harris, Evans and Beckett 2010). If they serve their full sentences, they stand to
accumulate approximately $20,000 in additional child support debt, between
$4,000 and $5,000 in interest, and around $2,000 in penalty charges (Thoennes
2002). The majority of these individuals are indigent and unable to pay their debt,
which subjects them to further late penalties, interest charges, and continually
increasing debt. Research indicates that fathers making less than $10,000 per year
are responsible for 70 percent of all child support debt (Sorensen and Zibman
2001).
While some federal laws address child support payment, each state has its own
guidelines for setting, collecting and modifying child support orders. Federal
law forbids retroactive absolution of child support debt (Pearson 2004), which
means that such debt will remain until it is paid. Also, federal guidelines (42 U.S.C.
§ 659) allow jurisdictions to take up to 65 percent of a non-custodial parent’s
salary to apply towards this debt (Public Counsel 2011). Some jurisdictions
grant modifications in child support orders when changes in a parent’s situation
damage their ability to pay. At least 21 states do not accept incarceration as a
justification to reduce or eliminate child support debt because it is considered
a foreseeable consequence of criminal action (Pearson 2004). Many states
incarcerate parents for failure to pay child support orders (Brito 2012). Currently,
national data on legal outcomes associated with nonpayment of child support
debt do not exist because most jurisdictions do not track the number of arrests
and incarcerations related to nonpayment (Solomon-Fears, Smith and Berry
2012).
Parents who do not pay child support are subject to a range of sanctions, none of
which benefit their children. Child support agencies can garnish wages, withhold
tax returns and social security benefits, suspend drivers licenses, deny passports,
and encumber bank accounts to recover this debt (Anthony and Mellgren 2009).
If obligors are financially solvent, these sanctions may not be problematic, but for
individuals with limited income, such penalties may affect their ability to also pay
rent and other obligations. If parents are unable to pay, child support obligations
do not benefit children, the intended beneficiaries. Additionally, this failure to

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provide financial support may strain the parent-child relationship. The possibility
of incarceration for failure to pay child support may force indigent parents to
flee, which not only negates the parent’s financial resources but removes parental
support from the child’s life completely (Patterson 2008).
There is no denying the importance of child support obligations. If parents refuse
to provide financial support for their children, courts should have the authority to
require them to make such payments. However, forcing an incarcerated or indigent
parent to pay money that they do not have only worsens the situation and may
saddle indigent individuals with perpetual debt. Child support debt is becoming
unmanageable for many ex-offenders (Pearson and Griswold 2005). A survey of
released offenders found that child support assistance is the most common form
of aid requested, higher than help finding a job or a place to live (Pearson and
Griswold 2005).

debt priorities
States have some discretion to prioritize offender debt payments. Federal law (42
U.S.C. § 666), however, requires that child support obligations be given preference
over all other debt (e.g., restitution, legal fees) (McLean and Thompson 2007).
After child support, some states (e.g., Colorado, Georgia) prioritize legal fines
and fees while other states (e.g., Florida, Michigan) prioritize the collection of
restitution (McLean and Thompson 2007). On the federal level, the Code of Federal
Regulations (28 CFR 545.11) outlines how payments should be prioritized (Legal
Information Institute). The Code prioritizes Special Assessments imposed under
18 U.S.C. 3013, which consist of fines that increase with the severity of the offense
(Legal Information Institute). Court-ordered restitution receives next priority,
followed by fines and court costs, state or local court obligations, and any other
federal government obligations (Legal Information Center).

State Prioritization of Offender Obligations

Federal Prioritization of Offender Obligations

1. Child Support
Top priority in all states

1. Child Support
2. Special Assessments
(18 U.S.C. 3013)

2. Restitution

2. Legal Fees/Fines

Prioritized in:

Prioritized in:

Arizona

Alaska

Florida

Colorado

Hawaii

Connecticut

Idaho

Georgia

Iowa
Michigan
Wisconsin

3. Court-Ordered Restitution
4. Fines and Court Costs
5. State or Local Court
Obligations
6. Other Federal
Government Obligations

Sources: McLean and Thompson (2007); Legal Information Institute

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Debt collection
An estimated 10 million people owe more than $50 billion in debt resulting
from their involvement in the criminal justice system (Harris, Evans and Beckett
2010; National Center for Victims of Crime 2011). Many offenders cannot afford
payment and court-ordered financial obligations become detrimental to their
reintegration. Criminal debt competes with other essential life expenses, such as
food, rent, and child support (Shookhoff, Constantino and Elkin 2011).
The reasons offenders do not pay criminal fees, restitution obligations, and child
support arrearages include financial inability, lack of awareness of debt, and
unwillingness to pay. The majority of offenders may never be able to pay off their
criminal debt because they are poor both before and after their incarceration.
Most offenders remain unemployed for at least a year following their release
from prison (Patel and Philip 2012). Others may not pay their debts because they
do not understand the sanctions, they disagree with the reasons behind their
financial obligations, or they believe that the financial penalties were unfairly
applied to them (Ruback, Hoskins, Cares and Feldmeyer 2006).
The high prevalence of nonpayment creates problems for jurisdictions
attempting to collect criminal fees and other financial obligations from offenders.
Several jurisdictions have pursued aggressive methods of debt collection and
punishments for nonpayment, which prolong existing financial burdens on
offenders long after they are convicted or released from incarceration. Ironically,
due to the amount of personnel hours and resources they require, the cost of
debt collection efforts is usually higher than the money they generate.

Hidden Costs to the Legal System and Ex-Offenders Associated with Debt
Collection Practices
Common Collection Practices

Hidden Costs

Probation or parole officers monitor
payments.

Possible overtime costs and less time to devote to
offender risks/needs.

Debtor must attend regular meetings with
a judge, clerk, or collection official.

Possible overtime costs and burdened court dockets.

Incarceration for failure to pay.

Possible overtime for legal system personnel and
incarceration costs.

Debt referred to private collection
agencies.

Debtor faces considerable collection fees and damage
to credit.

Driver’s license suspended for failure to
pay.

Debtor has more obstacles to finding and maintaining
employment.

Wage garnishment and tax rebate
interception.

Debtor is deterred from seeking legitimate
employment.

Debt converted to a civil judgment.

Damage to debtor’s credit.

Source: Bannon, Nagrecha and Diller (2010)

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Many states persistently pursue debtors because court operations budgets
depend on this source of revenue (American Civil Liberties Union 2010). Officials
in Washington State take a portion of wages from debtors or their spouses, and
they also can confiscate bank assets, home equity, and tax refunds from debtors
(Harris, Evans and Beckett 2010). County officials or collection agencies have the
authority to charge late fees and interest to those who do not or cannot pay
(Harris, Evans and Beckett 2010). Alabama imposes a 30 percent collection fee
on debtors. Florida charges an additional 40 percent on top of debt owed for
the cost of debt collection (Bannon, Nagrecha and Diller 2010). Interest rates
on criminal fees are often as high as 12 percent. California can levy a 15 percent
interest charge on debtors who are more than a month late on payments (Harris,
Evans and Beckett 2010). When debt collection is not possible, jail time may
become the only recourse for nonpayment.
Debt collection also places additional burdens on criminal justice employees.
Probation and parole officers are often tasked with debt monitoring, collection
and issuing punishments for failure to pay. These duties divert time from their
essential functions of supervising ex-offenders and ensuring public safety (Patel
and Philip 2012).
The collection of restitution debt suffers from inefficiencies. Public and private
collection agencies do not coordinate well, courts do not have a system to
enforce the legal requirement to collect restitution payments, and many
jurisdictions do not prioritize restitution collection (National Center for Victims
of Crime 2011). Also, the majority of jurisdictions do not track the amount of
restitution ordered or collected (National Center for Victims of Crime 2011), which
makes it difficult to evaluate the effectiveness of different collection methods.
Some jurisdictions do not prioritize restitution payments and instead require
that other financial obligations, such as fines and fees, be paid first, which leaves
victims uncompensated for lengthy periods of time (Ruback and Bergstrom 2006).
Child support debt collection is also problematic. After child support orders
are established, it is difficult to keep track of obligors and ensure that they are
making payments. This is of particular concern when obligors are incarcerated,
as states do not have a method for identifying inmates with child support
obligations and thus have no way to communicate with them (Pearson 2004).
Even after their release from incarceration, the majority of child support arrears
are uncollectable. Arrears that are more than a few years old are especially
unlikely to be collected (Bartfeld 2003). Despite the low success rate of child
support debt collection, many jurisdictions continue to pursue debtors and spend
more on debt collection than they are able to collect (Pearson and Griswold
2005).
While criminal debt collection is costly, it is impossible to determine exactly how
much is spent to collect these debts because most states do not have procedures
for monitoring the costs of debt collection (Bannon, Nagrecha and Diller 2010).
Ultimately, states are often able to collect only a small portion of the criminal
debt that offenders owe. In Florida, for example, court officials routinely expect to
collect only nine percent of fees associated with felony cases (Diller 2010). A study
in North Carolina found that the costs of collection – law enforcement, courts,
and jails – outweighed the amount collected from debtors (Bannon, Nagrecha
and Diller 2010). Officials in Alabama collected $4 million in 2012, which was only
a small percentage of the financial obligations owed by offenders (Lockette 2013).

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effects of criminal debt
Former offenders with debt encounter a number of problems that interfere with
successful reintegration. Debt reduces household income and limits their ability
to attain housing, employment, and access to credit. It also hobbles existing
credit, which makes it even more difficult to get a job, to receive approval
to rent an apartment, and to apply for loans. Criminal debt also impedes an
ex-offender’s prospects of attaining public health benefits, can result in a driver’s
license suspension, and negates their ability to apply for a pardon or criminal
record expungement in some states (Vallas and Patel 2012). It also increases the
likelihood of continued involvement with the criminal justice system through
extended probation or parole, re-arrest, or re-incarceration (Harris, Evans and
Beckett 2010). Some states disenfranchise ex-offenders until they have paid off
their debt entirely. For example, ex-offenders in Florida are required to fulfill their
restitution obligations before they can restore their right to vote, serve jury duty,
and obtain certain occupational licenses (Diller 2010). An important consequence
of financial burdens is that they increase the likelihood of recidivism, particularly
when offenders are unable to pay (Dickman 2009).
A job can help ex-offenders generate income to pay their debts, but even
with employment, they stand to lose much of their income to debt collectors.
Based on their annual average, ex-offenders owe as much as 60 percent of their
income to criminal debts (Harris, Evans and Beckett 2010). A study of ex-felons
on probation in Texas found that they owed between $4,000 and $5,000 in
obligations related to their offense (Reynolds et al. 2009). For ex-offenders who
are unemployed or indigent, fines and interest that accrue over time gradually
make this debt unmanageable.
Debt financially and emotionally strains ex-offenders, which can negatively
affect their psychological well-being (Shookhoff, Constantino and Elkin 2011).
Some offenders saddled with debt have expressed feelings of anxiety, anger and
hopelessness (Martire, Sunjic, Topp and Indig 2011). Those who experience these
psychological symptoms are more likely to abscond in order to avoid payment
(Harris, Evans and Beckett 2010).
The worst-case scenario for offenders who cannot pay their debt is
re-incarceration. Some jurisdictions (e.g., California, Missouri) allow individuals
who have outstanding criminal debt to spend time in jail in lieu of paying off
their debt (Bannon, Nagrecha and Diller 2010). This practice creates what critics
call the new “debtors’ prisons” (American Civil Liberties Union 2010). Despite
its occurrence, however, incarcerating an individual for being too poor to pay
criminal debt is not constitutionally permissible. The Supreme Court ruled in
Bearden v. Georgia (1983) that failure to pay criminal debt is not grounds for
incarceration if an individual lives in poverty (American Civil Liberties Union 2010).
The Supreme Court determined in its ruling that only “willful” nonpayment may
result in incarceration (Harris, Evans and Beckett 2010).
Jurisdictions in several states continue to incarcerate individuals if they do not
pay their debt, regardless of their financial insolvency. In Rhode Island, failure to
pay court debt was the most common reason that individuals were incarcerated
between 2005 and 2007. The average amount owed was $826 and the average
cost of three days of incarceration was $505 (Rhode Island Family Life Center
2008).

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Sources of Offender Debt, Consequences of Non-Payment, and How to Reduce Debt

Court Fees/Fines
Fees charged to
offenders by the court,
levied with a punitive
purpose.

Restitution
A court ordered penalty
fee that provides
financial compensation
to victim(s).

Child Support
Non-custodial parent
to provide financial
compensation to
biological child.

Other Fees
Levied with a public cost
recovery purpose (e.g.,
arrest fee, incarceration
charges)

ACCUMULATED
DEBT

Ways to Reduce the Debt
Late Fees

Employment

Interest
Charges

Consequences
of
Non-Payment

Education

Re-incarceration
Barrier

Criminal records
impair finding
gainful and
meaningful
employment.
Wage growth for
ex-offenders is
30% lower than
equally qualified
non-offenders.

Barrier

Ex-offenders
have limited to no
access to financial
aid for higher
education (varies
by state).

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employment wages
While employment barriers are a concern for ex-offenders, the quality of
jobs available to them is equally problematic. Incarceration makes it difficult
for ex-offenders to attain quality jobs for several reasons. First, incarceration
stigmatizes ex-offenders and reduces the likelihood that an employer will hire
them. Second, the lack of access to job training in prison and time out of the
job market with its changing technologies erode offenders’ job skills. Finally,
incarceration erodes inmates’ existing social networks that could have helped
them attain quality jobs. Together, the stigma of a criminal conviction, lack of
training and experience, and loss of social networks during incarceration can have
negative impacts on an ex-offender’s employment opportunities upon release
(Pettit and Lyons 2009). The jobs that ex-offenders can attain often lack security
and do not provide much capacity for higher earnings over time.
Wage inequality is a near certain consequence of incarceration. Because those
who have served time in prison have less access to steady jobs that provide
sufficient income, incarceration reduces the wages that ex-offenders earn by
10 to 20 percent (Western 2002). Incarceration also negatively impacts wage
mobility, which is the change in earned income over time. Offenders who have
been incarcerated experience a slower growth in their wages over time than
individuals without a history of incarceration; serving time in prison reduces the
rate of wage growth by 30 percent (Western 2002).
This problem is compounded for minority offenders. Studies have shown that
Black and Latino offenders usually earn lower wages than White offenders
(Johnson and Johnson 2012). Additionally, an examination of the quarterly
earnings of ex-offenders who were recently released from prison in Washington
State found that the wages of Black offenders increased at a considerably slower
rate than the wages of White offenders (Lyons and Pettit 2011). Even after
controlling for additional factors, such as education, age, and work history, Black
offenders still earned 10 percent less than White offenders (Lyons and Pettit
2011).

financial assistance for ex-offenders
Despite living on minimal income and facing substantial financial obligations,
offenders often face barriers to obtaining state and federal financial assistance.
Currently, between 13 and 18 million individuals in the United States are unable
to receive public benefits because of their criminal history (Lucken and Ponte
2008). For instance, convicted sex offenders are prohibited from receiving
government housing subsidies (Oyama 2009). Convicted drug offenders may
be denied Temporary Assistance for Needy Families (TANF), food stamps,
and postsecondary education aid, including Pell Grants, Stafford loans, and
work-study assistance (United States Government Accountability Office 2005).
While food stamps are intended to provide individuals and families living in
poverty with financial assistance to purchase food, federal legislation has limited
the ability of convicted offenders to receive food stamps (Pearson 2004). The
Personal Responsibility and Work Opportunity Act of 1996 banned individuals
with a felony drug conviction from receiving TANF and food stamps from the
federal Supplemental Nutrition Assistance Program (SNAP) (The Sentencing

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Project 2013). States may modify or opt out of this ban, and many have done
so, but the ban is estimated to have stripped more than 180,000 people of food
stamp eligibility (The Sentencing Project 2013). Food stamps represent valuable
financial aid that can ease part of an ex-offender’s living costs and permit
them to allot their financial resources towards other obligations and debts.
Removing food stamp benefits from convicted offenders strains their existing
financial resources, increases their risk of malnutrition, and increases their risk
of recidivism. The health and re-incarceration costs of denying food stamps to
convicted drug offenders may be higher than providing them with food stamps in
the first place.
Individuals with a criminal conviction may lose their eligibility for financial aid to
attain higher education. A conviction for a drug offense results in an outright ban
on financial aid for those who were convicted of the drug offense while they were
receiving financial aid (Legal Action Center 2012). Students are disqualified from
receiving educational benefits for varying periods of time if they are convicted
of certain drug offenses (United States Government Accountability Office 2005).
The first conviction for possession of a controlled substance can result in an
individual losing his or her financial aid for one year, and the first conviction for
sale of a controlled substance can result in two years of ineligibility. Subsequent
convictions can lead to indefinite ineligibility (Mukamal and Samuels 2002).
Convicted drug offenders can restore their postsecondary education benefits if
they successfully complete a drug treatment program and pass unannounced
drug tests (United States Government Accountability Office 2005).

State Responses to the Ban on Federal Welfare Benefits for Convicted Drug
Offenders (2011)

States that have eliminated the ban
States that have modified (eased) the ban
States fully enforcing the ban

Source: The Sentencing Project (2013)

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Government subsidized housing is sometimes denied to convicted offenders.
Local Public Housing Authority (PHA) offices can deny public housing assistance to
applicants who were previously evicted from a federally funded housing project due
to drug use or sale (Prison Law Office 2011). PHA’s have the discretion to consider
the arrest records of applicants when determining eligibility for public housing,
even if the arrest did not result in a conviction. One study found that more than
half the housing authority decisions regarding public housing eligibility are based
on arrests that never led to a conviction (Legal Action Center 2004). Individuals
convicted of sexual and drug offenses encounter the greatest housing restrictions
(Morani, Wikoff, Linhorst and Bratton 2011). Convicted sex offenders are prohibited
from receiving government housing subsidies completely (Oyama 2009), while
convicted drug offenders subject to federal housing restrictions could lose housing
benefits from three years to life (United States Government Accountability Office
2005).
Some states provide offenders with a small sum of money upon their release from
prison. Called “release funds” or “gate money,” these are intended for ex-offenders
to buy food, clothes or a bus ticket (Prison Law Office 2011). In Illinois, for example,
ex-offenders receive $50 in addition to a new outfit and a bus ticket when they
are released (Visher and Travis 2003). According to California Penal Code § 2713.1,
the state is to provide ex-offenders with $200 when they are released from an
incarceration facility. Some ex-offenders receive only half of this money initially,
but they must receive the entire payment within 60 days of their release (Prison
Law Office 2011). However, across all states, average release funds amount to only
$53, which does not cover a full day of living expenses if the ex-offender needs
temporary lodging (Rukus and Lane 2013).
Financial obligations resulting from criminal involvement are intended to generate
money for criminal justice systems and to punish offenders. However, because
the majority of ex-offenders responsible for these obligations are indigent
and unable to pay (Patel and Philip 2012), financial requirements become a
perpetual punishment, exacerbating poverty and economic inequality (Harris,
Evans and Beckett 2010). Offenders who owe money become ensnared in debt
without means for resolving it. If they cannot pay, they face mounting fees and
possible incarceration for nonpayment. The threat of re-incarceration leads some
ex-offenders to abscond. The system of financial obligations for offenders will never
be profitable for the state. Rather, it will only serve to expand and prolong criminal
punishment for ex-offenders already facing multiple barriers to reintegration,
including possible unemployment, lesser income and job stability, and ineligibility
for many forms of public financial assistance.

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Release Funds in Selected States
State

Gate
Money

Notes

Alabama

$10

Arizona

$50

Arkansas

$100

California

$200

Colorado

$100

Connecticut

$50

Delaware

$0

Florida

$100

Georgia

$25

Idaho

$0

No gate money. Funds provided for housing/treatment directly to
provider.

Kansas

$100

Offenders with multiple offenses receive $40. Average distribution
to inmates is $50 or less.

State supplements account for up to $50 of gate money.

State supplements account for up to $50 of gate money.

Kentucky

$50

$50 at warden’s discretion if inmate is indigent.

Louisiana

$10

Distributions to inmates range between $10 and $100.

Maine

$50

Receipt of gate money is contingent on good behavior.

Maryland

$50

$50 gate money comes from a reserve account set up for
inmates.

Massachusetts

$50

$50 paid to indigent inmates.

Mississippi

$25

Gate money is based on time served.

Missouri

$0

Montana

$100

Additional funds are available for those serving longer than three
years.

Nebraska

$100

State supplements account for up to $100 of gate money.

Nevada

$25

New Hampshire

$0

New Jersey

$0

New Mexico

$50

State supplements account for up to $50 of gate money, but there
are deductions from inmates placed into a release program.

North Carolina

$45

Inmates only receive funds if they were incarcerated for 24
months or more.

Ohio

$75

Rhode Island

$20

South Carolina

$0

Vermont

$200

Virginia

$25

Washington

$40

Wisconsin

$0

State supplements account for up to $20 of gate money.
Distribution of gate money is based on inmate financial need.

Deductions from inmate pay provide funds for inmates on work
release. Funds are contingent on employment, so assumed gate
money is $0.

Source: Rukus and Lane (2013)

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proposed solutions |
Although most offenders have debt resulting from their criminal justice
involvement and many will never be able to pay it off in full, by addressing
some inherent problems, criminal justice systems can increase the likelihood of
payment while lessening the financial burden on offenders.

Bankruptcy reform
Individuals who are unable to repay their debts to creditors may have to file
for bankruptcy. Bankruptcy is a stigmatized condition that allows the debtor to
abrogate their rightful obligations of payment (Stiglitz 2001). There is no optimal
bankruptcy code that benefits all debtors. While a legal declaration of bankruptcy
may be necessary for some debtors, it has negative consequences for many of
their creditors, which can include the state (criminal fees), the victims (restitution),
and the debtor’s dependents (child support). Today’s legal methods for handling
the debts of indigent ex-offenders creates problems for both debtors and
creditors.
Bankruptcy is beneficial when it results in a quick discharge of a debtor’s
legal debts, although they do have to surrender their non-exempt property.
However, this could leave a large group of debtors, particularly those with
minimal financial resources, unable to ever have positive net worth, to plan for
retirement or sickness, or to own property. Criminal debt makes it difficult for
many ex-offenders to attend school and obtain housing. Regional and racial
variation in debt discharge imposes a disproportionate burden on communities
as a result of criminal justice system involvement (Lawless 2010). Bankruptcy laws
should be changed to reduce perpetual criminal debts, which act as a barrier to
reintegration.

Fee amounts
Many courts set fee amounts without taking into account an offender’s financial
viability, income, or employment status. Although courts should consider the
nature and impact of an offense when establishing fee amounts, it may be more
important for them to ascertain an offender’s financial status. In Florida, state
law requires payment plans to be tailored to an offender’s income and ability to
pay, though courts do not always follow this law (Diller 2010). Tailoring payment
schedules to offenders’ finances could lessen the rate of debt accumulation
and increase payment consistency. Even if offenders are only able to pay a few
dollars a month on a payment schedule, prioritizing consistency over amount will
likely generate more payment than the current system. In order to accomplish
this, courts need access to offenders’ financial records and must receive
regular notifications about any changes in employment status so that financial
obligations and payment schedules can be adjusted accordingly.
Financial obligations in the criminal justice system are further complicated
because they primarily affect those who are least able to afford payment. The
majority of people who enter the criminal justice system are poor, and fines and
fees at nearly every phase of the criminal justice process severely strain their
meager finances. Some of these fees should be removed. It is unreasonable for
courts to hold indigent defendants liable for public defender fees. In Gideon

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v. Wainwright (1963), the Supreme Court affirmed that individuals who cannot
afford legal representation are entitled to a court-appointed legal defense.
This ruling should preclude any attempt to charge poor defendants for legal
representation. These charges dissuade some offenders from exercising their
right to legal counsel, which could result in wrongful convictions (Bannon,
Nagrecha and Diller 2010). Georgia has a law that requires courts to waive public
defender fees if a defendant cannot afford payment, but many defendants have
no opportunity to demonstrate indigence and ultimately waive their right to legal
representation (American Civil Liberties Union 2010). A federal court recently
found two cities in Washington State liable for failing to provide adequate
representation for indigent defendants (American Civil Liberties Union 2013).
This ruling has implications for jurisdictions with underfunded indigent defense
systems. In addition to removing public defender fees, states should reduce or
waive other financial penalties for individuals living in poverty, including late fees,
collection fees, payment plan fees and high interest charges (Bannon, Nagrecha
and Diller 2010).

prioritization of fees
Although federal law prioritizes child support payments, states should follow
the model of Arizona, Florida, Michigan and others that also prioritize restitution
payment over legal fees and court-ordered fines. Restitution payment not
only benefits victims but enables offenders to know where and to whom their
payments are going. The payment of criminal fees and fines only benefits criminal
justice systems, which may discourage offenders from paying them. Restitution
and child support directly benefits victims and children. If offenders are aware
of how much of their payment benefits the victim(s) of their crime, there may
be psychological benefits that increase their likelihood of continued payment
(Ruback and Bergstrom 2006).

Tracking debt
States often lack systems for tracking aggregate criminal debt and expenditures
on debt collection, so it is impossible to calculate the amount of outstanding
criminal debt and the costs of enforcing debt collection. It takes considerable
time for probation and parole officers, clerks, judges, attorneys, and law
enforcement to collect debt, so a portion of their salary should be included in
the debt collection. It appears that states spend more to collect debt than they
recoup from debtors (Bannon, Nagrecha and Diller 2010), but it is impossible to
know the exact amount of this deficit. States officials should create a system for
tracking debt collection expenditures to assess their cost-benefit.

improving restitution collection
The system of restitution collection should be reformed. Victims should be able
to play an active role in their pursuit of restitution. To this end, the legal system
should educate and empower victims and provide them with the resources and
legal support necessary to seek restitution payments from their offenders (Fetsco
2012). In Arizona, law enforcement informs victims of their rights and allows
victims the opportunity to exercise or waive those rights (National Center for
Victims of Crime 2011). If a court finds that a defendant willfully defaulted from
restitution payment, state constitutional provisions allow the court to garnish the

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defendant’s wages or to incarcerate him or her (National Center for Victims of
Crime 2011). State officials should target and enforce the collection of restitution
debt when individuals are financially able to pay (Dickman 2009). States also
should create uniform policies for collecting restitution and informing debtors
about the status of their restitution debt through letters and notices (National
Center for Victims of Crime 2011).

improving child support collection
It makes little sense to require offenders who are non-custodial parents to pay
money that they do not have, so courts should adjust unrealistic child support
debts accordingly. Maryland has created the Child Support Payment Incentive
Program, which offers incentives for those who comply with child support
obligations. Non-custodial and low income parents who make consistent child
support payments for one year can reduce their child support debt by 50 percent;
those who make consistent payments for two years can have their debt absolved
completely (Klempin and Mincy 2009). Maryland also suspends child support
orders for indigent parents who are incarcerated for more than 18 months
(Warnock Foundation 2013).
Several states have adopted mechanisms to ease the burden on indigent
or incarcerated parents. These policies are effective because they require
accountability but offer incentives for compliance. Courts in Minnesota can
retroactively modify child support orders if a parent lacks financial means and
is incarcerated for any reason other than nonpayment (Pearson 2004). Arizona
passed legislation to allow non-custodial parents to petition the court to suspend
interest on child support arrears while they are incarcerated (Pearson 2004). Only
the debtor can make requests for child support modifications, however, which
is difficult if he or she is incarcerated. Caseworkers should be available to assist
incarcerated people with the process of requesting reviews and modifications of
child support orders, as some states currently do (Anthony and Mellgren 2009).
Iowa operates a program that forgives a percentage of arrearages following
several months of consistent payment; the longer they are able to make
payments on time, the greater the proportion of their debt that can be legally
forgiven (Bartfeld 2003). Counties in Wisconsin forgive interest requirements for
debtors that make consistent payments (Bartfeld 2003).
Information and resources could encourage offenders both during and following
their incarceration to pay their child support debt. Four states – Oregon,
Massachusetts, Minnesota, and Washington – offer information sessions to newly
processed inmates to inform them how to request a review and modification
of child support orders (Pearson 2004). Video sessions save on these costs
because they preclude a state employee from having to be present. Agencies
in Washington State, including Child Support Enforcement, the Department
of Corrections, and Corrections Clearinghouse, a reentry program, work with
ex-offenders to develop payment plans and modify arrears to match their ability
to pay (Pearson 2004). Educating and providing reentry assistance to those
with child support debt can improve the collection of child support payments
and reduce the burden on obligors to a manageable, payable level. Also, courts
should have more discretion to set and modify child support orders, which would
enable them to consider changes in the financial circumstances of debtors.

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public assistance
Prohibitions on public assistance for certain categories of convicted offenders
make sense when public safety is at stake. However, ex-offenders should be
able to earn back their eligibility for food stamps, educational aid, and housing
subsidies if they demonstrate reform and do not commit additional offenses for
some duration of time that varies in proportion to the severity of their offense.
Denying otherwise eligible ex-offenders access to public assistance keeps them
in poverty (Eadler 2011), while enabling ex-offenders’ access to social services
enhances their reintegration and reduces their likelihood of recidivism (Visher
and Travis 2003). For example, cost-benefit analyses indicate that removing the
food stamp ban for certain drug offenders would decrease recidivism and yield
considerable savings for individuals who are not re-incarcerated (Eadler 2011).

Alternatives to incarceration
Instead of incarceration for nonpayment, work assistance programs should
provide opportunities for ex-offenders to work on community service projects at
a real wage and pay off their debt through a portion of the income they generate.
Incarceration should not be an option for offenders who are without financial
means to settle their financial obligations. States should only allow incarceration
or extend parole or probation sentences for individuals who are financially solvent
but refuse to pay their debts (Patel and Philip 2012).
Although some ex-offenders are able to pay their criminal debt, many lack
the income and the social support necessary to achieve financial stability.
Ex-offenders are often uneducated (Guerrero 2010). It is difficult to find a steady
job without a GED or high school diploma and with incarceration-related gaps
in one’s work history. More attention to employment needs and social support
would increase the ability of ex-offenders to pay their debt. Ex-offenders who are
employed, have ties to their community, are allowed to make payments over time,
and are informed about the importance of restitution are most likely to make
payments (Ruback and Bergstrom 2006). Policies should address these issues.

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Conclusion |
Contact with the criminal justice system may lead to severe financial
consequences for offenders. Even after completing court-imposed punishments,
they may have difficulty finding employment, and if they do manage to get a job,
their criminal history negatively affects the quality of the job, their job security,
and their wage growth. Offenders are also subject to a number of criminal fees,
fines, and restitution. If they have children, the legal system can require offenders
to pay child support, which compounds during incarceration. Because many
ex-offenders lose their eligibility to receive public assistance funds, financial
obligations resulting from criminal justice system involvement exacerbate every
financial expense in their lives, from food and rent to medical and educational
costs.
There are hidden costs to saddling offenders with large amounts of debt. The
majority of offenders who enter the criminal justice system are indigent and
unable to pay their financial obligations, so many rack up endless debt (Patel and
Philip 2012). When ex-offenders are unable to pay, interest can accumulate and
create a debt so large that it is meaningless because they will never be able to
pay it off. Offenders in some jurisdictions are subject to re-incarceration for failure
to pay their financial obligations. The creation of these new “debtors’ prisons”
are antithetical to the U.S. Supreme Court’s ruling that individuals cannot be
incarcerated for indigence.
The purpose of criminal fees and fines is to generate funds for the criminal justice
system and to restore the harms caused by crime. In most cases, these goals
are not being met. Some states allocate more resources to collect debt than
they garner from debtors (Bannon, Nagrecha and Diller 2010). To improve this
system, criminal justice personnel should collect information on debt burdens to
determine appropriate fees for ex-offenders based on their ability to pay.
Former offenders living in poverty may never be able to fully settle their financial
obligations. Debt reduction incentives for even minimal payments would help
generate some funds and alleviate the constant accrual of debt. Policies should
also prioritize restitution obligations that benefit victims over those that benefit
the criminal justice system (criminal fines). Unreasonable financial obligations
perpetually punish many ex-offenders and consign them to a life of permanent
debt and poverty – the ultimate debt penalty. While obligations like child support
and restitution are legitimate, it makes better sense to enable and incentivize
achievable payments than to compound crushing debts beyond any hope of
payment.

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