Charging the Poor: Criminal Justice Debt & Modern-Day Debtors' Prisons

Debtors’ prisons should no longer exist. While imprisonment for debt was common in colonial times in the United States, subsequent constitutional provisions, legislation, and court rulings all called for the abolition of incarcerating individuals to collect debt. Despite these prohibitions, individuals who are unable to pay debts are now regularly incarcerated, and the vast majority of them are indigent. In 2015, at least ten lawsuits were filed against municipalities for incarcerating individuals in modernday debtors’ prisons. Criminal justice debt is the primary source for this imprisonment. Criminal justice debt includes fines, restitution charges, court costs, and fees. Monetary charges exist at all stages of the criminal justice system from pre-conviction to parole. They include a wide variety of items, such as fees for electronic monitoring, probation, and room and board. Forty-three states even charge fees for an indigent’s “free” public defender. With expanding incarceration rates and contracting state budgets, monetary sanctions have continued to escalate. Additionally, many states and localities are now outsourcing prison, probation, monitoring, and collection services to private companies, who add additional fees and charges to the criminal justice debt burden of defendants. The impact of criminal justice debt is especially severe on the poor and minorities as they are frequently assessed “poverty penalties” for interest, late fees, installment plans, and collection. © 2016 Neil L. Sobol. Associate Professor, Texas AM J.D. (cum laude, order of the coif), Southern Methodist University; M.S. and B.A. (with distinction), Stanford University. I appreciate the encouragement and assistance of my colleagues at Texas A&M including Cynthia Alkon, Susan Ayres, Mark Burge, Patrick Flanagan, Timothy Mulvaney, Carol Pauli, Huyen Pham, Tanya Pierce, and Lisa Rich, as well as, the research assistance of Zachery S. Brown. I am also grateful for the feedback received following presentations at the Central States Law Schools Association Annual Scholarship Conference at Louisiana State University Paul M. Hebert Law Center, ClassCrits VII at U.C. Davis School of Law, Texas A&M University School of Law, and the Law and Society Association Annual Meeting in Seattle, Washington. 2016] CHARGING THE POOR 487 Often they have to decide between paying criminal justice debt and buying family necessities. The deaths of Michael Brown in Ferguson, Eric Garner in New York, and Freddie Gray in Baltimore have prompted renewed calls for investigation of the adverse treatment of the poor and minorities in the criminal justice system. The fear of arrest, incarceration, and unfair treatment for those owing criminal justice debt creates distrust in the system. In February 2015, a class action complaint was filed against the City of Ferguson asserting that the city’s jails had become a “modern debtors’ prison scheme” that had “devastated the City’s poor, trapping them for years in a cycle of increased fees, debts, extortion, and cruel jailings.” Moreover, the Department of Justice’s report on the Ferguson Police Department presents a scathing indictment of a system apparently more concerned with revenue collection than justice. Unfortunately, as illustrated by recent lawsuits and investigations alleging debtors’ prisons in Alabama, Colorado, Georgia, Louisiana, Mississippi, New Hampshire, Ohio, Oklahoma, Tennessee, Texas, and Washington, the abuses are not limited to Ferguson, Missouri. The same concerns that led to the historical restrictions on debtors’ prisons have risen again with the growth of modern-day debtors’ prisons. Similar to the prisons in London during the eighteenth and nineteenth centuries that were criticized for using a privatized system that charged inmates for all services, including room and board, the current justice system improperly charges the poor. It is now time to revisit these concerns and implement effective restrictions to reduce the incidence of debtors’ prisons. To remedy these concerns, my Article proposes eliminating egregious sanctions, providing courts flexibility to base fines on earning levels, and establishing procedures to enforce restrictions against incarcerating those who are truly unable to pay their criminal justice debt. 1. Class Action Complaint ¶ 6, Fant v. City of Ferguson, No. 14:15-cv-00253 (E.D. Mo. Feb. 8, 2015), http://equaljusticeunderlaw.org/wp/wp-content/uploads/2015/02/ComplaintFerguson-Debtors-Prison-FILE-STAMPED.pdf [hereinafter Ferguson Complaint]. 488 MARYLAND LAW REVIEW [VOL. 75:486