A big money problem

By ERIC MOUNT

Contributing columnist

Whether the term is “debt prisons,” with the American Civil Liberties Union, or “wealth-based detention,” with the Southern Center for Human Rights, the plight of the incarcerated poor is gaining increasing notoriety not only nationally, but also in our state and even local discussions of criminal justice reform.  

No one is suggesting that poor people who commit crimes should suffer no consequences, but the monetary sanctions many are suffering constitute additional punishment for being poor.  What is going wrong? What can be done?

Let’s start with what has been called our “predatory bail-bond system.” Four hundred and fifty thousand people who have not been convicted of a crime are in jail on any given day because they cannot afford bail. $10,000 is the median bail for felony defendants, and $15,109 is the median pre-incarceration income for people in jail. Every year, $14 billion is spent incarcerating people who have not yet been convicted of a crime.  

Bail-bond insurers are making huge profits off poor families, who are forced to take on more debt at 12-percent interest. In Georgia for example, private probation supervision companies double and triple what those who can’t make bail would have had to pay initially.  

The next problem for poor people in the criminal justice system is legal financial obligations (LFOs). A new generation of reform-minded prosecutors is advocating fines and debt over incarceration. The rub is that LFOs can be just as unfair and ineffective as the long sentences.

Poor people are much more often on probation than people of means because the wealthier people can simply pay the fine and have their case closed. The poor person often cannot pay the fine and accepts an offer to pay in installments while remaining on probation. Other fees mount up, and the defendant’s debt deepens. According to Alexes Harris, author of “A Pound of Flesh: Monetary Sanctions as a Punishment for the Poor,” the fine for misdemeanors is typically $1,000, which can be unmanageable for a low-income person, especially on top of other costs.

Defendants are often even charged to be on probation; and for services required during probation such as drug tests, ankle monitors and court-ordered classes. And there are costs that can pile up while you’re still in jail, such as jail booking fees and application fees for a public defender. Defendants may also have to pay for their juries, victims panel classes and diversion/treatment programs.

When funding for a state’s criminal justice system gets cut, some legislatures “nickel and dime” poor defendants to compensate. You might have to pay $10 to the crime victims’ compensation fund, $20 to the law enforcement training center, and $4.50 toward the construction of a new jail. The poorer the state, the higher the fees.

Municipal courts often pursue profits more than justice. In New Orleans, LFOs constitute about two-thirds of the criminal courts’ operating budget. Juvenile, traffic, misdemeanor and felony courts often rely on LFOs to fund their law enforcement departments and county jails. The people who largely carry this financial load cannot afford to do so. Of the 380 people that Harris interviewed, over half were on public assistance and most had problems paying their legal debts, sometimes due to mental or physical illnesses.

It is not solely a matter of making the poor a major revenue source. There is also the problem of taxing the public coffers for the incarceration costs of those who can’t pay their LFOs.

One homeless construction worker accrued $498 in fines and costs, for which the city of New Orleans paid $3,000 to incarcerate him. Another man was arrested for holding a cardboard sign at an intersection that read, “homeless please help;” he spent 70 days in jail at public expense.

What we have been reviewing are violations of the Equal Protection Clause of the 14th Amendment. Imprisoning someone merely because of that person’s poverty was deemed unconstitutional by the 1983 U.S. Supreme Court decision in Bearden v. Georgia. A local government can only imprison a person for not paying a fine if it can be shown “that the person could have paid, but willfully chose not to do so.”

The Southern Center for Human Rights has reported that an intellectually disabled African-American man, living on food stamps, was fined $500 for burning leaves in his backyard without a permit. He was jailed until a friend made a payment. He was given 12 months to pay in full and also had to pay $44 a month to a probation company to supervise him. He had no lawyer. The court made no attempt to determine his ability to pay as required by the Constitution. After 12 months, he had paid $158 and owed $608.

Our criminal justice system does not have to operate this way. The setting of bail could take into account a person’s financial condition as well as the seriousness of the offense. For minor offenses, bail could be assessed only after a person has failed to make an initial court appearance.   

Addressing the opioid crisis should focus on prevention and treatment. Prevention in the offender population should focus especially on the children of offenders — keeping them from not having contact with their parents and falling into poverty, which often accompanies having incarcerated parents.

Mandatory minimum and long-term sentences for non-violent drug users must be changed.  Drug offenders can be placed in programs like Boyle County’s Shepherd’s House for treatment and job-training classes. Drug and alcohol treatment opportunities could be offered free of charge. To the surprise of many, this policy results in cost savings because it reduces costly jail time and gets offenders back to being job-holding taxpayers sooner. Help is sorely needed for getting access to low-cost housing and jobs as well.

It appears that House Bill 396 — the Criminal Justice Policy Assessment Council (CJPAC) Justice Reinvestment Bill — will not make it to the floor for consideration during this legislative session, but one of its recommendations is particularly relevant to the problems cited in this column: “Minimize financial barriers to reentry by allowing individuals on an installment plan to make payments over the length of their supervision term; allowing judges to impose alternatives to incarceration for nonpayment of costs and fees; and allowing financial obligations to be suspended for the first six months following release from prison.” Hear, hear!

The compounding of the dilemmas faced by indigent and low-income persons and their families in our criminal justice system simply because they are poor is getting increasing attention in discussions of criminal justice reform at all levels. It is high time.