by Molly Riesenberger

The ACLU report, “In for a Penny: The Rise of America’s New Debtors’ Prisons,” presents the findings of a yearlong investigation into “debtors’ prisons,” exposing how poor defendants are increasingly being jailed for failure to pay legal debts that they cannot afford. Flashback to 1983 – The Court ruled in Bearden vs. Georgia that imprisoning a defendant who was unable to pay his debts, despite bona fide efforts to do so, violated the Equal Protection Clause of the Fourteenth Amendment. It further held that a judge must determine whether the defendant has the ability to pay the debt, but “willfully” refuses. Today, courts nationwide habitually ignore the precedent established by Bearden vs. Georgia. In fact, states now collect legal debts more aggressively from men and women who are financially unable to pay than from those with the means to do so. The report unearths the damage that debtor’s prisons do to citizens, the economy and the criminal justice system.

The ACLU investigation focuses on legal financial obligations (LFOs), which is a general term describing “all fines, fees and costs associated with a criminal sentence” (ACLU). While LFOs are seen as essential revenue to the courts, there is not data showing that their efforts to collect debts actually generate income – in fact, incarcerating those unable to pay ends up costing states even more than unpaid legal debts.

LFOs disproportionally hurt racial and ethnic minorities, as they are disproportionally represented among the prisoner population. The U.S. Court of Appeals for the Ninth Circuit acknowledged that there is racial bias in the criminal justice system – African-Americans and Latinos in Washington State were excessively arrested for drug possession, more likely to be searched, and less likely to be released without bail than those who are white. According to the ACLU report, “These same disparities extend to the assessment of LFOs: In Washington, Hispanic defendants generally receive higher LFOs than white defendants convicted of similar offenses, and persons convicted of drug offenses receive significantly higher LFOs than those convicted of violent crimes” (ACLU).

The result of LFO collection is a two-tiered system of justice: the poorest defendants are punished more severely than those with financial means. Ironically, the poorest defendants are the ones who ends up paying much more in fines and fees that those who can afford their LFOs. For example, in Washington state, all unpaid legal debts are subject to 12% interest (ACLU). This eventually turns into a lifelong debt – a typical criminal defendant with an average LFO that makes a monthly payment on that LFO would still have a legal debt 30 years post-conviction.

The ACLU came up with a list of recommendations for state and local officials to remedy some of the most serious debtors’ prison abuses:

  • Defendants should not be incarcerated for failure to pay LFOs that they cannot afford – the court must consider if the defendant is able to pay and then decide if the failure to pay is willful.
  • States should repeal any law that results in poor defendants being punished more severely than defendants with means, and there should be consistent guidelines for assessing LFOs.
  • Judges should receive training in the determination of defendants who cannot afford to pay prior to incarceration. Furthermore, judges should appoint counsel to defendants at proceedings to determine LFO sanctions.
  • Defendants should be given the opportunity to repay their debts through alternative methods, such as community service.
  • Data should be collected about LFO collection in each jurisdiction – the costs of collection, how collected funds are distributed – broken down by race, crime and location.
  • Court should be funded enough so that they do not need to collect LFOs.
  • The government should hold oversight hearings on the rise of debtors’ prisons.


Cyclical injustice results when our system incarcerates the impoverished, while allowing those with greater means to serve their sentence by simply signing a check.