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.
The North Carolina Commission on Racial and Ethnic Disparities (NCCRED), the Wake Forest Journal of Law & Policy, and the Wake Forest School of Law Criminal Justice Program, present “The New Law and Order: Working Towards Equitable and Community-Centered Policing in North Carolina” on Friday, Nov. 3, 2017, from 9 a.m. to 4:30 p.m., in the Worrell Professional Center, Room 1312. The event is free and open to the public. Four hours of Continuing Legal Education (CLE) credit from the North Carolina Bar Association has been approved.
On September 5, 2017, Donald Trump revoked the program DACA (Deferred Action for Childhood Arrivals). DACA was originally established under the Obama administration and allowed individuals who entered the United States as minors to receive a renewable two-year period of deferred action from deportation. The revocation puts thousands of undocumented students at risk for deportation. For those currently in the program, their permits will start to expire in March 2018 – all Dreamers (those protected by DACA) will lose status by March 2020.
In response, the Advancement Project and Puente Movement Arizona have teamed up to fight the revocation. Puente recently launched a campaign – #CopsOuttaCampus – to remove school resource officers from Phoenix Union High School. Arizona state law requires officers to ask about a student’s immigration status once they’re arrested, so the only way to protect undocumented students is to get cops off of school campus. The Advancement Project works to support the campaign as well as the general effort to dismantle the school-to-prison and school-to-deportation pipeline.
To learn more, check out #CopsOuttaCampus on Twitter, Facebook and Instagram.
The John D. And Catherine T. MacArthur Foundation announced a $2 million grant to Mecklenburg County’s Department of Criminal Justice Services to continue building on local efforts to implement criminal justice system reforms and safely reduce Mecklenburg County’s jail population. The grant is part of the Safety and Justice Challenge, a more than $100 million national initiative to reduce over-incarceration by changing the way America thinks about and uses jails.
The grant will be used by Mecklenburg County’s Department of Criminal Justice Services and partners to provide additional support and expert technical assistance to implement strategies that address the main drivers of local jail incarceration, including unfair and ineffective practices that take a particularly heavy toll on people of color, low-income communities, and people with mental health and substance abuse issues.
More information about the work underway in Mecklenburg County can be found on www.mecknc.gov
Rejecting a plea agreement means facing the death penalty for the unlucky defendants in North Carolina who live in the handful of counties that pursue the death penalty. As of 2012, only 14 of the 100 counties in North Carolina have sought the death penalty at trial. Norman Kennard Carter, Jr., awaiting trial in Forsyth County, is one of the unlucky defendants. He is charged with first degree murder in the shooting death of Alphonso Singletary in September of 2016. Carter agreed to enter a guilty plea to life without the possibility of parole, but changed his mind during the plea hearing.
Forsyth County District Attorney Jim O’Neill’s office immediately requested to seek the death penalty in the case. The district attorney’s office has full discretion in deciding to pursue the death penalty. The presiding judge granted the request. Carter’s attorney asked the district attorney’s office to keep the option of accepting the plea agreement open until December 2017. The District Attorney’s office agreed to keep the plea on the table until December, but it has full discretion to revoke this agreement at any time.
In the last 10 years, Forsyth County is responsible for placing one out of every five people on death row in North Carolina. The question citizens should ask themselves is this:
- If the DA was willing to accept a life without the possibility of parole sentence, why would he not then simply proceed to trial without seeking the death penalty?
- If convicted, Carter will still face the life without the possibility of parole the DA felt was an appropriate punishment when it offered the plea agreement. Is it possible that the DA is punishing this defendant for not accepting a plea agreement by making him face the death penalty?
- Is this they way YOU want your district attorney to make life or death decisions about your fellow citizens?