Shackled to Debt, Harvard Kennedy School-National Institute of Justice, 2017
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New Thinking in Community Corrections VE RI TAS JANUARY 2017 • NO. 4 HARVARD Kennedy School Program in Criminal Justice Policy and Management Shackled to Debt: Criminal Justice Financial Obligations and the Barriers to Re-Entry They Create Karin D. Martin, Sandra Susan Smith and Wendy Still Introduction Executive Session on Community Corrections Formerly incarcerated people face a considerable This is one in a series of papers that will be published as a result of the Executive Session on Community Corrections. ability to graduate from community supervision The Executive Sessions at Harvard Kennedy School bring together individuals of independent standing who take joint responsibility for rethinking and improving society’s responses to an issue. Members are selected based on their experiences, their reputation for thoughtfulness and their potential for helping to disseminate the work of the Session. Members of the Executive Session on Community Corrections have come together with the aim of developing a new paradigm for correctional policy at a historic time for criminal justice reform. The Executive Session works to explore the role of community corrections and communities in the interest of justice and public safety. Learn more about the Executive Session on Community Corrections at: NIJ’s website: www.NIJ.gov, keywords “Executive Session Community Corrections” Harvard’s website: http://www.hks.harvard.edu/ criminaljustice/communitycorrections number of obstacles to successful re-entry. Their is complicated by their low and eroding levels of education and skills (Waldfogel, 1994; Western, Lopoo and McLanahan, 2004; Lopoo and Western, 2005), serious mental and physical health conditions that often go untreated (Travis, 2000; Mallik-Kane and Visher, 2008; Binswanger, Krueger and Steiner, 2009; Rich, Wakeman and Dickman, 2011), and alcohol and drug addictions (Bureau of Justice Statistics, n.d.; Karberg and James, 2005; Mumola and Karberg, 2006), which are issues nurtured in neighborhoods of concentrated disadvantage from which many justice-involved people come. State-sanctioned barriers, including government restrictions on access to public-sector employment and government-related private occupations (Dale, 1976; May, 1995; Olivares, Burton and Cullen, 1996; Petersilia, 2003; Bushway and Sweeten, 2007), restrictions on voting rights (Manza and Uggen, 2006), and limited access to public housing and social welfare programs also hinder 2 | New Thinking in Community Corrections reintegration efforts (Carey, 2004; Thompson, of fairness in the administration of justice in 2004). Despite recent successes1 in an effort to a democratic society and engendering deep “ban the box” — the “box” on employment and distrust of the criminal justice system among college applications that asks about criminal those overburdened by them. history — the social stigma that justice-involved people face further compounds problems with In what follows, we describe trends in the re-entry, including their attempts to find work assessment of CJFOs, discuss the historical (Pager, 2003, 2007). context within which these trends have unfolded, and reflect on their unintended (but perhaps To this lengthy list we add yet another significant easily foreseen) consequences. We then treat state-sanctioned barrier — criminal justice restitution separately, given the distinct function financial obligations (CJFOs), also known as (in theory at least) that restitution serves. We also monetary sanctions or legal financial obligations. raise serious concerns about how restitution There are at least five types of CJFOs (Ruback tends to be implemented and who benefits from and Bergstrom, 2006; Harris, Evans and Beckett, this particular obligation. We end by considering 2010): fines and forfeiture of property, which are alternative models for the effective and fair intended as punishment; costs and fees, including deployment of fines, fees and restitution in the but not limited to court costs and supervision criminal justice context. fees, which reimburse the state for costs associated with the administration of justice; Historical and Institutional Context and restitution, a financial payout to specific CJFOs are not new. According to Harris and victims or a general fund designated for them, colleagues (2010: 1758), “monetary sanctions intended to compensate victims for the losses were integral to systems of criminal justice, they have suffered. Although some have written debt bondage, and racial domination in the about the benefits of incorporating CJFOs as one American South for decades.” Although their option among many criminal justice sanctions use waned significantly in the first half of the (Morris and Tonry, 1990; Gordon and Glaser, 20th century, CJFOs have proliferated since 1991; Ruback and Bergstrom, 2006), this form of the 1980s. As a result of statutes and policies at sanction can, if left unchecked, have long-term every level — city/municipal, county, state and effects that significantly harm the efforts of federal — that mandate various forms of CJFOs, formerly incarcerated people to rehabilitate and the vast majority of people who come into contact reintegrate, thus compromising key principles with the criminal justice system and are found 2 guilty (and some who are not) pay for these Cite this paper as: Martin, Karin D., Sandra Susan Smith, and Wendy Still. Shackled to Debt: Criminal Justice Financial Obligations and the Barriers to Re-Entry They Create. New Thinking in Community Corrections Bulletin. Washington, D.C.: U.S. Department of Justice, National Institute of Justice, 2017. NCJ 249976. encounters or are punished for not doing so. Shackled to Debt: Criminal Justice Financial Obligations and the Barriers to Re-entry They Create | 3 The 1960s and 1970s marked an opening for With this shift in values came the implementation the resurgence of CJFOs. According to Garland of a set of rigid criminal justice policies — (2001), the rehabilitative approach to crime and determinate sentencing, truth in sentencing, punishment had been hegemonic since the 1890s. mandatory minimums and three strikes — that Under this approach, crime was understood in not only drove up rates of incarceration but also terms of relative deprivation. Specifically, when dramatically increased the numbers of those deprived of proper education, socialization, under supervision outside the nation’s jails and opportunities and treatment, individuals were prisons (Western, 2006; Wacquant, 2009; Raphael more likely to become involved with the justice and Stoll, 2013). Between 1925 and 1975, fewer system. But with individualized treatment, aid than 100 Americans per 100,000 were in prison. to and supervision of families, institutionalized By 2003, even though crime rates had remained supports for education, and job creation and relatively stable, this number had quadrupled training, people would likely abstain from further to more than 400 per 100,000. Further, between criminal behavior. Mass protests of the 1960s 1983 and 2001, incarceration (jail and prison) in and 1970s, however, inspired a marked shift in the United States increased from 275 inmates values and approaches to criminal justice. With per 100,000 to 686 inmates per 100,000, more unrest related to the Vietnam War, women’s than five times the rate in Western European liberation and various Civil Rights revolutions countries (Western, 2006). The numbers of people threatening to fundamentally disrupt the under community supervision also increased foundation on which well-established racial, dramatically. In 1980, Wacquant (2009) reports gendered and class-based hierarchies had been that 1.84 million were on probation or parole. By built, many people raised serious concerns about 1990, that figure had increased to 4.35 million and the rehabilitative approach, arguing that it was jumped again to 6.47 million by 2000 (Wacquant, ineffective (relative to alternative approaches) at 2009). addressing the emerging threats society faced. These critics favored the retributive approach The proliferation of CJFOs was likely a result, direct instead. In this approach, criminal behavior and indirect, of this cultural shift to retribution. was not considered a deviation from the norm First, in an era of “just deserts” punishment, the but rather a rational choice by self-serving actors increased use of fines and forfeiture, alone or in who were taking advantage of opportunities combination with other forms of nonmonetary in contexts where sufficient controls and sanctions, signaled to the public that people who disincentives for crime were weak or nonexistent. committed crimes were being made to account State efforts at retribution, incapacitation and the for their actions (Wacquant, 2009). Second, the management of risk would effectively curtail such 1970s cultural shift included increased concern self-serving, opportunistic behaviors.3 for victims who, it was argued, should be 4 | New Thinking in Community Corrections made whole — through reparations — after the type of offense, may now be assessed (Nieto, experiencing crime-related losses (Office for 2006). Texas has 15 categories of court costs Victims of Crime, 2013; Garland, 2001). that are “always assessed” and an additional 18 discretionary CJFOs that include fees for being Third — and perhaps most important — as committed or released from jail (Texas District the criminal justice apparatus swelled to Court, 2013). In Washington state, a defendant accommodate the oceans of people cycling in with a single conviction is subjected to 24 fines and out of the system’s courts, jails, prisons, and and fees (Beckett and Harris, 2011). probation and parole departments, so too have the costs to operate such a system. For instance, Jurisdictions have also shifted costs to justice- Wacquant (2009) shows that, between 1980 and involved people by increasing the amounts 1997, criminal justice budgets — those devoted and numbers of fines, fees and surcharges they to police, justice and corrections — increased assess. For instance, since 1996, Florida added from roughly $35 billion to $130 billion per more than 20 new categories of CJFOs and year. Growth in criminal justice personnel also recently increased amounts of existing fees and skyrocketed, from approximately 1.3 million surcharges in two consecutive years (Bannon, in 1980 to 2.1 million in 1997. Wacquant (2009) Nagrecha and Diller, 2010; Diller, 2010). In New notes that, based on the number of personnel York state — where the laws require 10 mandatory in 1997, American criminal justice was the third surcharges, 19 fees5 and six civil penalties ranging largest employer in the country, second only to from $5 to $750 — lawmakers have repeatedly Manpower, Inc., and Walmart. increased the amounts and numbers of fees and surcharges since the early 1990s (Rosenthal and However, legislators have been reluctant to pass Weissman, 2007). In 2008 alone, two “additional these dramatically rising costs on to taxpayers. surcharges” were assessed for driving offenses; Jurisdictions have instead shifted more of the fees for assistance to victims of misdemeanor costs to justice-involved people through CJFOs crimes and felony crimes were increased by $5 (Wacquant, 2009), implicating every stage of each; and surcharges for felonies, misdemeanors criminal case processing (Bannon, Nagrecha and violations were increased by $5 to $50 and Diller, 2010).4 They have done so in at least (Bannon, Nagrecha and Diller, 2010). In 2009, three ways — by imposing numerous new fines, North Carolina initiated two new fees — a $25 fees and surcharges; by increasing the amounts late fee for debtors making tardy payments and associated with CJFOs; and by adopting more a $20 surcharge for those wishing to establish a proactive strategies to collect debt. In California, payment plan for their CJFOs. North Carolina also for instance, 16 different statutes codify 269 increased fees for defendants who fail to appear separate court fines, fees, forfeitures, surcharges in court and increased the costs associated with and penalty assessments that, depending on lab tests (Bannon, Nagrecha and Diller, 2010). Shackled to Debt: Criminal Justice Financial Obligations and the Barriers to Re-entry They Create | 5 Since 2010, 48 states have increased civil and For persons who a re i nca rcerated, t he criminal fees (Shapiro, 2014), a likely response overwhelming majority now accumulate mounds to government coffers emptied by the effects of of debt due to numerous fees while behind bars. the Great Recession (Burch, 2011; Government A 1997 survey of the nation’s largest jails revealed Accountability Office, 2015). It is no wonder, then, that more than three-quarters of people in jail that CJFOs have become ubiquitous.6 were charged fees for a host of programs and services, most notably medical care, per diem With ubiquity, the odds of justice-involved payments, work release programs and telephone persons receiv ing one or more monetar y use; the latter three produced the greatest revenue sanctions and the median amounts assessed by far. By 2005, that figure had risen to 90 percent. have increased substantially.7 For instance, In addition, more than 85 percent of people on Harris and colleag ues (2010) report t hat probation and parole are now required to pay 25 percent of federal prison inmates were supervision fees, fines, court costs or restitution assessed fines, but that figure rose to 66 percent to victims to remain free from further sanctions by 2004 — only 13 years later. 8 Although the (Travis and Petersilia, 2001; Rainville and Reaves, prevalence of fines and restitution payments 2003; Siegel and Senna, 2007). subsided to 32 percent of federal nonimmigration cases in 2015, it is important to note that the The result of this expansion in the numbers and overwhelming majority of cases for some federal amounts of CJFOs, deployed at every stage of offenses — robbery, fraud, larceny, arson and criminal case processing, is that some 10 million burglary, for instance — received a fine or were people owe more than $50 billion from contact required to pay restitution (U.S. Sentencing with the criminal justice system (National Center Commission, 2015). for Victims of Crime, 2011; Evans, 2014; Eisen, 2015). 9 To be clear, jurisdictions collect only On the state level, 4 percent of persons convicted a fraction of this debt each year; for instance, of felonies who were sentenced to prison in 1986 people owe the federal government more were also fined; by 2004, that figure was seven than $100 billion in criminal debt, and federal times higher (28 percent) (Harris, Evans and judges assessed nearly $14 billion in monetary Beckett, 2010). On the local level, 12 percent penalties in fiscal year 2014, but the federal of persons charged with felonies who were government collects only $4 billion each year (U.S. sentenced to jail in 1985 (awaiting trial or serving Department of Justice, 2015). Nevertheless, CJFOs time for less serious felonies) were also fined; by still produce significant revenue for federal, state 2004, that figure tripled to 37 percent. In addition, and municipal coffers. According to the Criminal 17 percent of people on probation for felonies in Court of the City of New York (2014), in the New 1986 were also fined; by 2004, that figure more York metropolitan area, fines generate 47 percent than doubled to 36 percent. of criminal court revenue, which is then split 6 | New Thinking in Community Corrections between New York City and the state. Another been ignored in order to recover the costs of a report finds that “administrative assessments behemoth penal apparatus by increasing the on citations fund nearly all of the Administrative amounts and numbers of CJFOs. As a result, on Office of the Court’s budget in Nevada [and] ... all levels of government, policymakers’ actions [i]n Texas, probation fees made up 46 percent of have produced a set of unintended and negative the Travis County Probation Department’s $18.3 consequences — especially for poor people and million budget in 2006” (McLean and Thompson, people of color — a point we turn to next. 2007: 3). In Ferguson, Missouri — the site of major protests against police brutality inspired Law Enforcement or Debt Collection? by the death of 18-year-old Michael Brown at the Du r i ng per iods of econom ic dow nt u r n, hands of a Ferguson police officer — fines, fees government revenues from various forms of and surcharges, which are generously assessed taxes inevitably fall; the temptation is to fund and aggressively collected (particularly during government by adding new fees and surcharges, periods of projected general revenue shortfalls) increasing the size of CJFOs, and deploying covered slightly more than 20 percent of the law enforcement in ever more aggressive debt general revenue fund. In nearby towns, this collection strategies. This will be too much for figure was much higher. some jurisdictions to ignore, especially if the failure to engage in these practices would lead to Unintended Consequences budget deficits otherwise resolved with job cuts Four principles have informed an ideal of how in the system. Indeed, since 2010, several states justice in the United States should be meted (including but not limited to Arizona, Louisiana, out — (1) the punishment should fit the crime Ohio and Texas) have implemented new fees and (proportionality); (2) the punishment should increased already existing surcharges and fees not exceed the minimum needed to achieve to address 2010 budget shortfalls (Burch, 2011). its legitimate purpose (parsimony); (3) the Given this, we must consider what perverse punishment should not compromise a formerly incentives we create by tying the solvency of major incarcerated person’s chance to lead a fulfilling institutions to criminal justice enforcement. and successful life (citizenship); and (4) penal Essentially, the basic conflict that emerges when systems should avoid reproducing social a public institution is both the originator and inequalities, especially given that formerly the beneficiary of financial obligations is that incarcerated people disproportionately come resources are directed away from other critical, from disadvantaged families and communities but less lucrative, law-enforcing or adjudicating (National Research Council, 2014). These tasks (e.g., clearing backlogs of DNA analysis or principles must be a part of any deliberation to testing rape kits).10 establish fair and just penal policies and practices. However, it seems these principles have largely Shackled to Debt: Criminal Justice Financial Obligations and the Barriers to Re-entry They Create | 7 Perhaps more egregious is that such pressures incentives can encourage more aggressive can foster collusion bet ween government policing and punitive punishments targeted at agencies to generate revenue via law enforcement. the poorest and most powerless among us. Indeed, Ferguson provides stark evidence that court officials’ use of law enforcement The same pressures to produce revenue affect to generate revenue to fund government can probation and parole officers, who end up lead to corruption and injustice, especially for facing mutually incompatible demands. As vulnerable populations. There, the city finance social workers, they are expected to assess the director explicitly urged both the police chief needs of people under supervision and facilitate and the city manager to write more tickets in treatment. As law enforcement agents, they order to fill municipal coffers. In other words, are expected to monitor and surveil formerly the system in Ferguson sought to extract incarcerated persons (Rothman, 1980; Travis income for the county and state from some and Petersilia, 2001; Wodahl and Garland, 2009). of its most disenfranchised citizens, often As debt collectors, they are expected to monitor through unconstitutional stops and arrests. Also, payments, set up payment plans, aggressively according to the Department of Justice report on press people under supervision to pay court- Ferguson, law enforcement practices — driven in ordered and community corrections-related part by racial bias — produced and exacerbated CJFOs, and penalize them (including revoking racial disparities throughout local policing, court probation or parole) for missed payments and jail systems.11 The overwhelming majority (Bannon, Nagrecha and Diller, 2010). The first of those arrested only because of an outstanding two responsibilities relate to public safety municipal (civil) warrant (96 percent) were concerns but pit the “officer as advocate” who African-American (U.S. Department of Justice, offers individualized treatment against the 2015). As a result, they bore a disproportionate “officer as law enforcement agent” who manages burden as the primary population targeted to risk.12 The third responsibility, however, does make up for government revenue shortfalls. not ensure public safety at all; perhaps with the Adjacent cities and towns were no better, nor is it exception of restitution to victims, it is solely clear that such practices are specific to Missouri. about generating revenue, which is disbursed to Evidence from California reveals similar patterns a general fund or to criminal justice agencies. But of disproportionate harm of CJFO enforcement on this third responsibility is the one that is likely to minority communities (e.g., Lawyers’ Committee be prioritized in a system whose financial health for Civil Rights of the San Francisco Bay Area, and well-being — indeed, the stability of officers’ 2015). Moreover, because contact with police is very own positions — hinge on it. Such efforts, the common entry point to the criminal justice however, distract from officers’ responsibilities to system, any role of CJFOs in increasing exposure ensure public safety and facilitate rehabilitation. to police merits careful scrutiny because such Given the incentives inherent in prioritizing 8 | New Thinking in Community Corrections officers’ roles as debt collectors, we might near poor (Western, 2006), these figures are not have anticipated some of the unfair and unjust inconsequential. In the short or long term, most practices that have emerged. of them simply could not afford to fulfill these unreasonably high debt burdens. Punishing the Poor CJFOs can be quite daunting. In some states, however, it is difficult to say with any precision exactly how much those who have had contact with the criminal justice system have been assessed because, according to Bannon and colleagues (2010), information about fees, fines, surcharges and restitution cannot be found in any one statutory code, and different types of monetary sanctions are collected at different stages of criminal case processing. Case studies of different jurisdictions have been revealing. Amounts vary by state but, for example, court records from 2005 to 2011 reveal that persons convicted of felonies in Alabama accrued a median of about $5,000 in CJFOs (Meredith and Morse, 2015). The Texas Office of Court Administration reports that individuals released on parole owe between $500 and $2,000 in offense-related debt, a figure that does not include restitution. A recent study examining the hidden costs of incarceration finds that families of the formerly incarcerated incur, on average, $13,607 for court-related fines and fees (deVuono powell et al., 2015). An analysis of data from Washington state revealed court assessments ranging from a minimum of $500 (mandatory for all felony convictions) to a maximum of $256,257; the median amount assessed per person was $5,254 and the mean was $11,471 (Harris, Evans and Beckett, 2010). Because the vast majority of formerly incarcerated people are poor or Further, being indigent rarely exempts a person from CJFOs.13 Focusing on the 15 states with the largest prison populations, Bannon and colleagues (2010) identified four mechanisms through which the courts’ administration of CJFOs have created barriers to re-entry. First, even when courts had the discretion to waive or modify monetary sanctions, few considered whether people had the financial resources to meet these obligations, and few had institutionalized mechanisms to reduce CJFOs contingent on people’s financial resources (Bannon, Nagrecha and Diller, 2010). Second, few states provided adequate payment plans to allow formerly incarcerated people who are indigent to pay down their debts over time; among states that did, some required that people pay a fee to apply.14 Third, for indigent individuals, jurisdictions could replace CJFOs with community service. Some of the 15 states studied, however, did not offer community service as an alternative, and those that did offered limited options that the courts rarely chose. Nor do these states offer exemptions from the consequences associated with inability to pay because of indigence. Unpaid CJFOs are subject not only to unreasonably high interest on court-imposed sanctions but are also routinely subject to late fees, fees for payment plans, and debt collection fees (Bannon, Nagrecha and Diller, 2010).15 Consequently, formerly incarcerated people and their family Shackled to Debt: Criminal Justice Financial Obligations and the Barriers to Re-entry They Create | 9 members, who often shoulder the bulk of the poorer credit scores, individuals with legal debt legal debt burden (Wacquant, 2009; deVuono also risk being denied employment, and they powell et al., 2015; Nagrecha and Katzenstein, may be unable to secure credit cards, mortgages, 2015), can be saddled with these obligations for leases or loans. Thus, employment, housing and decades. Therein lies one of the major problems transportation are all jeopardized. And, to be with CJFOs, as applied in the U.S. For many, there clear, in each of these areas the impacts are far is no end to the resulting debt (Beckett, Harris greater for racial minorities than for whites, not and Evans, 2008; American Civil Liberties solely because the former are disproportionately Union, 2010; Harris, Evans and Beckett, 2010; represented in the criminal justice system. Bannon, Nagrecha and Diller, 2010; Katzenstein Not only are they more likely to be targets of and Nagrecha, 2011). The common, significant aggressive law enforcement practices, once time lag between assessment and final payment caught in the criminal justice net they are also undermines the goal of finality in punishment penalized more harshly (Rosich, 2007; Spohn, and poses significant obstacles to achieving 2000; Mitchell and MacKenzie, 2004; Jannetta et stability because even small monthly payments al., 2014; Starr and Rehavi, 2012). on debt could reduce take-home pay substantially among disadvantaged families and thus make For some formerly incarcerated individuals, it extremely difficult to meet other needs and these liabilities may also have the unintended obligations (deVuono-powell et al., 2015). consequence of reducing commitment to work, increasing reliance on available forms of public For many, criminal justice debt can also assistance (in some cases, CJFOs can make a trigger a cascade of debilitating consequences, person ineligible for receiving public assistance), many of which undermine post-incarceration or motivating further criminal involvement. re-entry goals such as finding stable housing, According to Harris and colleagues (2010), 80 transportation and employment (Bannon, percent of the respondents found their legal debt Nagrecha and Diller, 2010; Beckett and Harris, obligations to be “unduly burdensome.” Despite 2011). For instance, Bannon and colleagues the possibility that they might be sanctioned (2010) find that legal debt can be a hindrance with jail time for nonpayment, some chose not to obtaining a driver’s license, can restrict to work, instead engaging in criminal activity voting rights,17 and can interfere with obtaining or relying on state benefits (where these had not credit and making child support payments. been revoked because of CJFOs) to make ends Criminal justice debt can also prompt additional meet (also see Martin, 2015). 16 warrants, liens, wage garnishment and tax rebate interception. In addition, it can lead to a civil Perhaps the most intolerable penalty that formerly judgment, which is available to credit agencies incarcerated people who are indigent face for because this information is made public. With inability to pay CJFOs is to be re-incarcerated. A 10 | New Thinking in Community Corrections lawsuit18 against the City of Ferguson, Missouri that inability to pay cannot be the reason to describes the experience of Ms. Fant, which revoke probation or to re-incarcerate,19 there is illustrates this concern: ample evidence that inability to pay is indeed associated with expanded custody (American Ms. Fant was a 37-year-old single mother who Civil Liberties Union, 2010). Incarceration can worked as a certified nurse’s assistant. Over the follow CJFOs in at least four ways. First, probation course of 20 years, she was arrested more than a and parole can be revoked or not granted for dozen times. On the way to taking her children nonpayment of CJFOs. According to Bannon and to school one day in 2013, she was arrested and colleagues (2010), regardless of the fact that none taken to jail because of old traffic tickets. She of the 15 states they studied adequately sought to was initially told that she would only be released determine individuals’ ability to pay, at least 13 of after paying $300, but she was then “released” these states allowed for revocation of probation for free. Being released, however, just meant and parole in cases where formerly incarcerated that the arresting jurisdiction had dropped its persons missed payments. Second, criminal demand for money. Because she had unpaid and civil offenses can result in incarceration tickets in other nearby places (that paid for a via willful failure to pay CJFOs, an action that central city to house their jail inmates), “release” is interpreted as civil contempt. Third, in some meant she was kept in the same jail under the states (such as Missouri), criminal justice auspices of other jurisdictions. As a result, she debtors can “pay off” their debt by “choosing” was held in a single jail, but transferred to the jail — requesting to participate in programs that custody of one jurisdiction to another, totaling allow them to pay down court-imposed debt by five different jurisdictions — each holding her spending time in jail. Finally, individuals can be for three to four days and each insisting on arrested and jailed in some states (e.g., Texas) for hundreds or thousands of dollars to secure her missing a debt payment or for failing to appear at liberty. Eventually, she was told that her release a court hearing relating to a missed debt payment amount was $1,400, but after it was clear she (e.g., Georgia). In February 2016, for instance, would not be able to come up with the money, seven armed U.S. Marshals arrested and jailed she was released without paying anything. This Paul Aker, a Texas resident, for failure to appear freedom was temporary. The following year, she in court to address a 29-year-old delinquent was arrested again and told that she would have federal student loan; the original loan was to pay $1,400 or be held indefinitely. This time, her $1,500 (Lobosco, 2016). Roughly one-quarter of family and friends came up with $1,000 and she the respondents in Harris and colleagues’ 2010 was released. She was told to make future cash study served time in jail for nonpayment of fees payments directly to the Police Department. and fines; another study found that 12 percent Despite the Supreme Court ruling in Bearden v. Georgia (461 U.S. 660-661, 1983), which found had been re-incarcerated for missing payments (deVuono-powell et al., 2015). Thus, as assessed Shackled to Debt: Criminal Justice Financial Obligations and the Barriers to Re-entry They Create | 11 and administered in the U.S., CJFOs can be quite When signing on for service, most of them punitive and insufficiently parsimonious. In likely imagined that they would help make their those instances, their administration challenges communities safer and would positively impact even basic notions of citizenship rights and social the lives of those at high risk for future criminal justice. involvement. Few, if any, signed up to become debt collectors. But, in many jurisdictions, Distrust and Demoralization systemic pressure to produce revenue puts When people perceive that law enforcement officers in this position, whether or not they like officials have treated them unfairly, they come it. In Ferguson, for instance, where community to distrust the motives of legal authorities and policing efforts had never been more than modest, to negatively assess the procedures by which their efforts had recently declined further to legal authorities engage them. They also come focus more police time and energy on revenue to question the very legitimacy on which law generation. According to the DOJ report (U.S. enforcement’s authorit y rests, feeding an Department of Justice, 2015: 87): unwillingness to consent or to cooperate with law enforcement in general (Tyler and Huo, 2002). Thus, to the extent that CJFOs are administered in unfair and unjust ways, it should come as no surprise that the U.S. system of CJFOs breeds deep distrust of the criminal justice system, especially among the poor and people of color. To illustrate, the Department of Justice (DOJ) report on Ferguson highlighted how the unfair, unlawful, disrespectful and harmful practices of the police and the courts, both in Ferguson and in nearby towns and cities, led Ferguson’s black residents to both fear and distrust them, further deteriorating already strained relations between law enforcement and the communities they are tasked to serve as well as contributing to less effective, more difficult, less safe and more discriminatory policing (U.S. Department of Justice, 2015). Officers we spoke with were fairly consistent in their acknowledgment of this, and of the fact that this move away from community policing has been due, at least in part, to an increased focus on code enforcement and revenue generation in recent years. [O]ur investigation found that FPD redeployed officers to 12-hour shifts, in part for revenue reasons ... . While many officers in Ferguson support 12-hour shifts, several told us that the 12-hour shift has undermined community policing. One officer said that “FPD used to have a strong community policing ethic — then we went to a 12-hour day.” ... Another officer told us that FPD officers should put less energy into writing tickets and instead “get out of their cars” and get to know community members. One officer told us that officers could spend more time engaging with community members CJFOs may also be demoralizing for officers, and undertaking problem-solving projects if especially police, probation and parole officers. FPD officers were not so focused on activities 12 | New Thinking in Community Corrections that generate revenue. This officer told us, general restitution fund. The first case preserves “everything’s about the courts ... the court’s the notion of “restoration” inherent in restitution, enforcement priorities are money.” but the second case is far less clear. Surely, a victim who cannot collect from the person who It is difficult to say how widespread the perception actually committed the offense still benefits is among officers that debt collection has directed from compensation from a state restitution fund. attention away from arguably more important Indeed, Vermont (where the average individual roles that law enforcement officers can play in the restitution order is $1,100) has a system that communities they serve, but the comments that allows for victims to be paid immediately officers in Ferguson shared suggest that officers’ upon court order, using capital funded by a morale might be a part of the collateral damage 15-percent surcharge on all criminal and civil from the expansion of a monetary sanctions fines (Vermont Center for Crime Victim Services, system that relies heavily on officers’ efforts to 2012). But the flip side of this arrangement is that collect debts. people convicted of offenses must contribute to Victims and Restitution compensating victims of crimes in which they played no role (and even when they have inflicted Restitution stands somewhat apart from the no harm to an identifiable victim or property). other types of CJFOs. It is meant to be assessed How this ultimately weighs in the balance in when there is both an identifiable victim and terms of ethics is beyond the scope of this report; quantifiable (i.e., “monetizable”) harm to person however, the situation merits careful attention or property. The underlying notion is to directly when considering the universe of CJFOs and their compensate a crime victim for a specific loss consequences. stemming from the offense. Therefore, on the federal level at least, restitution is mandatory for The second problem with restitution is the several categories of offenses, as stipulated in enormous, int ractable and g row ing gap the Mandatory Victims Restitution Act of 1996.20 between the restitution amounts assessed and Problems arise, however, when we examine the amounts actually collected and disbursed. both the practice and the consequences of By one estimate, total state restitution debt was restitution as it is actually implemented. First, nearly $40 billion in 2007 (Dickman, 2009). At the the system of payment and disbursement very federal level, there is more than $100 billion in often severs the direct link between the person uncollected criminal debt, of which restitution who committed the crime and the victim. A judge is a large portion. Collection rates across the may issue either a direct order for restitution, country reveal the extent of the problem. In which is related to a victim’s loss, or the person Florida, people convicted of felonies owe $709 who committed the offense may have to pay to a million of restitution debt, of which the state Shackled to Debt: Criminal Justice Financial Obligations and the Barriers to Re-entry They Create | 13 collects 4.5 percent (Burnett, 2012). In Iowa, Finally, it is essential to remember that — from judges ordered $159 million in restitution over the perspective of the debtor — restitution is a five-year period but collected only $19 million simply part of a formidable amount of criminal during the same period (12 percent of the amount justice debt. Importantly, this debt incurs owed) (Eckhoff, 2012). In Texas, the parole disproportionate harm. An analysis of 80,000 division collected 5.3 percent of the $43 million Florida correctional cases found that unpaid that discharged parolees owed between 2003 restitution rendered almost 40 percent of the and 2008; fewer than 10 percent of parolees paid debtors ineligible to have their rights restored their restitution in full (Vogel, 2008). Vermont’s (Diller, 2010). In sum, although restitution serves restitution collection rate of 31.8 percent for a particularly distinct function compared to the 2005 to 2010 is, by comparison, relatively high other CJFOs, it suffers from pitfalls that render it (National Center for Victims of Crime, 2011). just as problematic. Not only are collection rates generally poor,21 but the amount of outstanding restitution debt Recommendations is growing. For instance, the amount of unpaid As administered in the U.S. system, CJFOs can restitution in Florida grew 51 percent between be punitive and insufficiently parsimonious. 2007 and 2012 (Burnett, 2012). As others have written (Bannon, Nagrecha and Of course, these low collection rates mean low disbursement rates — very few victims are paid or are paid in full. Pennsylvania, for example, disbursed less than 12 percent of the $435 million it assessed in restitution for the three years ending in 2012 (Pennsylvania Office of the Victim Advocate and the Center for Schools and Communities, 2013). Minnesota assesses $25 million in restitution, with an individual average of $2,100. Of this, only 25 percent is paid, Diller, 2010; deVuono-powell et al., 2015), we can and must do better. In what follows, we offer recommendations for reform. Although these recommendations will not reverse the damage done to individuals, their families and the communities they come from, if these or similar reforms are implemented moving forward, millions of people who are enmeshed in the criminal justice system might avoid the same troubling fate. but taking into account restitution that is reduced, We propose two sets of reforms. The first regards adjusted or credited, the amount of restitution the use of CJFOs for low-income or poor people that is “satisfied” reaches 49 percent. There is also and includes six recommendations. First, when significant variation by county: outstanding debt setting out to use CJFOs to punish and deter ranges from as low as 6 percent of the assessed or repair and reimburse victims, we must amount to as high as 83 percent (Minnesota consider people’s ability to pay. In the U.S., Restitution Working Group, 2015). statutorily mandated fines, fees, surcharges and restitution are not adjusted to ability to 14 | New Thinking in Community Corrections pay (Justice Management Institute and Vera to accrue on the CJFOs that are assessed; the Institute of Justice, 1996). However, tailoring poor, as objectively determined, should not the sanction to the individual, as is often done have to pay fees to apply for payment plans, as in parts of Europe (Kantorowicz, 2014), would penalties for late payments, or as part of an avoid many of the deleterious effects found in aggressive campaign of debt collection; and the American CJFO system. In Europe, “day under no circumstances should individuals fines” (as they are called) are calculated on the be incarcerated for delinquency on financial basis of a person’s financial situation — typically obligations related to criminal or civil judgments. by calculating a percentage of income — and the Importantly, by taking an individual’s financial severity of the offense (Hillsman and Mahoney, resources into consideration and eliminating 1988; Vera Institute of Justice, 1988).22 In addition, poverty penalties, we also end indeterminate because the financial burden on the individual punishment and related debt; individuals will is considered seriously as part of the assessment be relieved of criminal justice debt and related rationale, European countries that have adopted incarceration that can extend for decades, if not this approach have been able to generate income a lifetime. without undermining the basic tenets of effective criminal justice policy (Frase, 2001).23 Third, alternatives to monetary sanctions should also be considered more seriously than they are, Second, additional safeguards need to be especially where indigent persons are concerned. implemented so as not to penalize the poor for Financial transactions are not the sole means by being poor. The short- and long-term prospects which people can be made to account for their for people who are formerly incarcerated or under actions and make victims whole. As indicated supervision are also negatively affected by the earlier in the report, community service is an interest that accrues on criminal justice debt available option in most states, although it is used as well as the fees and penalties for delinquent infrequently. When implemented judiciously, payments, payment plans and debt collector however, this would seem to be a reasonable services. These contribute to poverty entrapment substitute for monetary sanctions. by further increasing the debt burden for these individuals, making it difficult to make ends Fourth, jurisdictions should consider amnesty meet and blocking opportunities for social and for those who already hold debt. The evidence economic stability and mobility. As a penalty provided here shows the questionable value of for tardy or missed payments, or missed court pursuing debt from people unable to pay. Indeed, hearings because of delinquent payments, when the cost and social harm of enforcing CJFO (re)incarceration also penalizes the poor. Very collections is greater than the benefit of (typically simply, these poverty penalties need to be partial) payment, there is a strong argument for eliminated — interest should not be allowed amnesty. Accounting for and excusing CJFO debt Shackled to Debt: Criminal Justice Financial Obligations and the Barriers to Re-entry They Create | 15 not only allows people to exit the destructive cycle enforcing toward those activities that, while of debt, warrants, arrests, court judgments and doing little to promote public safety, would incarceration, it also helps clear the prodigious generate significant revenue for government administrative backlog that typifies U.S. court coffers, thus putting revenue, not safety, first. systems. To rectif y t his, we f irst propose t hat an Fifth, if any fees are collected, they should be independent commission should be established deposited into a trust account to be invested solely in each jurisdiction to determine the causes and in direct rehabilitation services for the supervised consequences of proposed increases to criminal population. This approach is similar to the inmate justice fees, fines, surcharges and the like. CJFOs welfare funds that are mandatory for jails and should not be allowed to increase in size and/or prisons for fees collected from inmates, which can number unless studies determine that changes only be expended on direct programs or services would not unduly burden those subject to that benefit the inmate’s welfare. In a similar vein, them. The institutional health and well-being of we offer a sixth recommendation that connects criminal justice institutions should not hinge on criminal justice debt to the improved well-being the amount and number of CJFOs assessed; this of those who are involved in the justice system. To is the purpose of general tax revenue. the extent that they invest in their own education and vocational training, their fees might be Our second proposal is that the roles criminal significantly reduced or erased. In this way, the justice officers — probation, parole and police government incentivizes behaviors it wishes to officers — play should be limited to efforts that see, with the prospect of reduced victimization increase public safety. Law enforcement officers and improved public safety. should not be tasked with the responsibility to collect debts. Their roles are already complicated The second set of reforms addresses the criminal by what some consider to be mut ua l ly justice system’s growing reliance on CJFOs for incompatible demands — being advocate their own operations and maintenance. The and counselor as well as law enforcement and criminal justice system is meant to serve the disciplinarian. To add a debt collection function general public. As such, it is logical and just to to their roles forces officers to pit their own insist that each of us bears this burden. Instead, jobs and that of the institution that employs however, we increasingly require that people who them against the efforts of individuals in their have had contact with the criminal justice system charge at rehabilitation and successful re-entry. pay a disproportionate share for its operation; Not only would this conflict further complicate in so doing, we link the financial solvency of what is already a difficult balancing act but, in the institution to law enforcement practices. essence, it would also direct attention away from This incentivizes law enforcement to redirect the more important task of facilitating increased efforts away from critical, but less lucrative, law public safety. 16 | New Thinking in Community Corrections Endnotes 1. Boston, San Francisco and Minneapolis were early adopters (Henry and Jacobs, 2007). Currently, more than 100 cities and counties nationwide have implemented “ban the box” policies (Rodriguez and Avery, 2016). participation in work release programs, per diem payments and telephone use. Among the CJFOs added to the tab of probationers and parolees are monthly fees for supervision (including electronic monitoring) and administration fees for the installation of monitoring devices, drug testing, mandatory treatment, therapy 2. In this report we do not consider child support. and classes. Further, at each stage of criminal Although child support often contributes to the case processing, there are interest charges and debilitating debt that justice-involved people penalties for tardy payments, application fees have, it has been treated extensively elsewhere. for payment plans, and fees for debt collection (See Grall, 2003, and Cammett, 2006, for services — all adding to the heavy weight of discussions of child support debt as it relates to accumulated debt placed on justice-involved justice-system involvement; also see Nagrecha people, who are already disproportionately at a and Katzenstein, 2015; Thoennes, 2002; U.S. disadvantage economically and educationally Department of Health and Human Services, 2006; (Bannon, Nagrecha and Diller, 2010). and Pearson, 2004.) 5. Included are fees for crime victim assistance, 3. See Garland (2001) for a full discussion of this incarceration, DNA databanking, parole and cultural shift. probation supervision, sex offender registration, and supplemental payments to sex offender 4. User fees a re com mon ly assessed at victims. preconviction; for instance, defendants can be charged booking fees, application fees to 6. Despite its “growing normativity” (Katzenstein obtain a public defender, and jail fees for pretrial and Nagrecha, 2011), policies and practices detention. At sentencing, fines associated with related to the assessment, administration convictions are typically accompanied by and collection of CJFOs are quite diverse. surcharges; the amount of restitution to victims Jurisdictions typically have dozens of statutes is determined; and fees mount up for court mandating fines, fees and surcharges, but every costs, designated funds and reimbursement for comparison of jurisdictions — federal versus public defenders and prosecution. During jail state, between states, between counties within or prison stays, fees are routinely assessed for a a single state, and even between courthouses — variety of programs and services, most commonly reveals a substantial array of differences. for medical services (including prescriptions, physician/nurse visits, dental care and eye care), Shackled to Debt: Criminal Justice Financial Obligations and the Barriers to Re-entry They Create | 17 7. Meredith and Morse (2015) illustrate this well functions of our government are supported from with case studies of Alabama and Tennessee. basic and general tax revenues. Government exists and operates for the common good based 8. These data are from the Survey of Inmates in upon a common will to be governed, and the State and Federal Correctional Facilities. The expense thereof is borne by general taxation of authors make clear that these figures likely the governed.” underestimate the use of CJFOs because they do not include those assessed by departments 11. African-Americans were 68 percent less likely of corrections, jails or other noncourt agencies to have their cases dismissed by the court, at least (Harris, Evans and Beckett, 2010). 50 percent more likely to have their cases lead to an arrest warrant, and accounted for 92 percent of 9. In the federal system, more than $14 billion cases in which the court issued an arrest warrant in monetary penalties was assessed in fiscal (U.S. Department of Justice, 2015). year 2014 for up to 96 percent of cases for some offenses. In a study of CJFOs in 11 states, the 12. These are in conflict to the extent that officers’ average amount of uncollected debt was $178 advocacy cannot comfortably coexist with their million per state (McLean and Thompson, 2007). role as disciplinarians. California alone had $10.2 billion in outstanding court-ordered debt at the end of 2012 (Taylor, 13. This is so despite a series of Supreme Court 2014). As of 2010, Iowa and Arizona reported rulings to the contrary: Bearden v. Georgia, 461 unpaid court-ordered obligations on the order U.S. 660 (1983); Frazier v. Jordan, 457 F.2d 726 (5th of $533 million and $831 million, respectively. Cir. 1972); Tate v. Short, 401 U.S. 395 (1971); and Pennsylvania reported unpaid restitution of Williams v. Illinois, 399 U.S. 235 (1970). $638 million. In Los Angeles County, the fines, forfeitures and assessments related to 8,000 complaints filed each week for failure to appear exceeded $75 million in a single year. Finally, in just one federal district in New York (southern 14. In Franklin County, Ohio, for instance, the payment plan fee was $25; in the Orleans district in Louisiana, it was $100 (Bannon, Nagrecha and Diller, 2010). region), more than $270 million was owed for 15. Economic sanctions had once been criticized criminal debts (U.S. Department of Justice, 2014). because they did not include penalties for 10. Concern about this motivation prompted the Conference of State Court Administrators (n.d.) to assert that “[i]t is axiomatic that the core nonpayment (Petersilia and Turner, 1993; Langan, 1994; Wheeler et al., 1990). 18 | New Thinking in Community Corrections 16. In California, Florida, Louisiana, Michigan, interest in punishment and deterrence.” 461 North Carolina, Pennsylvania, Texas and Virginia, U.S. 660-661, http://supreme.justia.com/cases/ driver’s licenses are suspended if people fail to federal/us/461/660. make CJFO payments (Bannon, Nagrecha and Diller, 2010). 20. The federal statute, 18 U.S. Code § 3663A, “Mandatory restitution to victims of certain 17. In seven of the 15 states that Bannon and crimes,” lists the following offenses as requiring colleagues (2010) studied, CJFOs must be paid off mandator y restitution: crimes of violence, before people regain their right to vote. According property offenses (including offenses committed to Meredith and Morse (2015), southern states are by fraud or deceit), offenses related to tampering almost three times more likely than non-southern with consumer products, and offenses relating states to disenfranchise people because of CJFOs to the theft of medical products. Mandatory (40 percent compared to 14 percent). restitution bars judges from considering a defendant’s ability to pay when determining 18. Case No. 4:15-cv-253, U.S. District Court, restitution. Eastern District of Missouri. 21. Collection rates are hampered by people’s 19. “If a State determines a fine or restitution to inability to pay, difficulty in locating people over be the appropriate and adequate penalty for the time, and age of the debt. crime, it may not thereafter imprison a person solely because he lacked the resources to pay 22. See Vera Institute of Justice (1988) for a full it. Williams v. Illinois, 399 U.S. 235; Tate v. Short, explanation of how this works. 401 U.S. 395. If the probationer has willfully refused to pay the fine or restitution when he 23. The U.S. does have some experience with has the resources to pay or has failed to make day-fines. During the 1980s and 1990s when sufficient bona fide efforts to seek employment some in the criminal justice communit y or borrow money to pay, the State is justified in sought alternative sanctions to incarceration, using imprisonment as a sanction to enforce several initiatives were launched to explore collection. But if the probationer has made all the viability of proportional fines. The results reasonable bona fide efforts to pay the fine and were largely promising. A RAND study of day- yet cannot do so through no fault of his own, it fines in Arizona’s Maricopa County focused on is fundamentally unfair to revoke probation people convicted of felonies “with low need for automatically without considering whether supervision and treatment.” It found that day- adequate alternative methods of punishing the fines successfully diverted people from standard probationer are available to meet the State’s “supervision probation” and increased payment Shackled to Debt: Criminal Justice Financial Obligations and the Barriers to Re-entry They Create | 19 without negative consequences in arrests and Binswanger, I.A., Krueger, P.M., and Steiner, J.F. technical violations (Turner and Greene, 1999). 2009. “Prevalence of Chronic Medical Conditions Another study of the efficacy of day-fines in low- among Jail and Prison Inmates in the U.S.A. level courts in Milwaukee and Staten Island found Compared with the General Population.” Journal similarly positive results (Greene and Worzella, of Epidemiology and Community Health 63(11): 1992). 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Waldfogel, J. 1994. “The Effect of Criminal Conviction on Income and the Trust ‘Reposed in the Workmen.’ ” The Journal of Human Resources 29(1): 62-81. Western, B. 2006. Punishment and Inequality in America. New York, NY: Russell Sage Foundation. Western, B., Lopoo, I., and McLanahan, S. 2004. “Incarceration and the Bonds among Parents in Fragile Families.” In M. Pattillo, D. Weiman, and B. Western (Eds.), Imprisoning America: The Social Effects of Mass Incarceration (pp. 21-45). New York, NY: Russell Sage Foundation. Karin D. Martin is Assistant Professor of Public Management at John Jay College of Criminal Justice and The Graduate Center, City University of New York. Sandra Susan Smith is Assistant Professor of Sociology at the University of California, Berkeley. Wendy Still is the Chief Probation Officer in Alameda County, California. This report was prepared for Harvard Kennedy School’s Executive Session on Community Corrections, 2013 to 2016. We thank members of the Session for constructive comments and suggestions. We also thank Jasper Frank and Kendra Bradner for very helpful research assistance. Please direct correspondence to Karin Martin (email@example.com) and Sandra Smith (firstname.lastname@example.org). U.S. Department of Justice Office of Justice Programs PRESORTED STANDARD POSTAGE & FEES PAID DOJ/NIJ/GPO PERMIT NO. G – 26 *NCJ~249976* National Institute of Justice 8660 Cherry Lane Laurel, MD 20707-4651 Official Business Penalty for Private Use $300 Members of the Executive Session on Community Corrections Molly Baldwin, Founder and CEO, Roca, Inc. Kendra Bradner (Facilitator), Project Coordinator, Program in Criminal Justice Policy and Management, Harvard Kennedy School Barbara Broderick, Chief Probation Officer, Maricopa County Probation Adult Probation Department Douglas Burris, Chief Probation Officer, United States District Court, The Eastern District of Missouri, Probation John Chisholm, District Attorney, Milwaukee County District Attorney’s Office George Gascón, District Attorney, San Francisco District Attorney’s Office Adam Gelb, Director, Public Safety Performance Project, The Pew Charitable Trusts Susan Herman, Deputy Commissioner for Collaborative Policing, New York City Police Department Michael Jacobson, Director, Institute for State and Local Governance; Professor, Sociology Department, Graduate Center, City University of New York Sharon Keller, Presiding Judge, Texas Court of Criminal Appeals Marc Levin, Policy Director, Right on Crime; Director, Center for Effective Justice, Texas Public Policy Foundation Glenn E. Martin, President and Founder, JustLeadershipUSA Anne Milgram, Senior Fellow, New York University School of Law Jason Myers, Sheriff, Marion County Sheriff’s Office Michael Nail, Commissioner, Georgia Department of Community Supervision James Pugel, Chief Deputy Sheriff, Washington King County Sheriff’s Department Steven Raphael, Professor, Goldman School of Public Policy, University of California, Berkeley Nancy Rodriguez, Director, National Institute of Justice Vincent N. Schiraldi, Senior Research Fellow, Program in Criminal Justice Policy and Management, Harvard Kennedy School Sandra Susan Smith, Associate Professor, Department of Sociology, University of California, Berkeley Wendy S. Still, Chief Probation Officer, Alameda County, California John Tilley, Secretary, Kentucky Justice and Public Safety Cabinet Steven W. Tompkins, Sheriff, Massachusetts Suffolk County Sheriff’s Department Harold Dean Trulear, Director, Healing Communities; Associate Professor of Applied Theology, Howard University School of Divinity Vesla Weaver, Assistant Professor of African American Studies and Political Science, Yale University, Institution for Social and Policy Studies Bruce Western, Faculty Chair, Program in Criminal Justice Policy and Management, Harvard Kennedy School; Daniel and Florence Guggenheim Professor of Criminal Justice, Harvard University John Wetzel, Secretary of Corrections, Pennsylvania Department of Corrections Ana Yáñez-Correa, Program Officer for Criminal Justice, Public Welfare Foundation Amy Solomon, Director of Policy, Office of Justice Programs, U.S. Department of Justice; Executive Director, Federal Interagency Reentry Council Learn more about the Executive Session at: www.NIJ.gov, keywords “Executive Session Community Corrections” www.hks.harvard.edu, keywords “Executive Session Community Corrections” NCJ 249976