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
As recent months have unfolded, we are all bombarded with news of threats to the dreams of dreamers, state-sanctioned hatred in many forms, and a return to a criminal justice system that seeks to address social problems by locking people away. As soon as we are presented with one battle to be fought, another one surfaces. In times such as these, what can we do to protect our communities? One answer is to dig deeper into the power that we have as citizens of a democratic society. We must continue to vote. This means educating ourselves about the roles of all elected officials, not just those we hear about regularly. Carolina Justice Policy Center, CJPC, is launching a new voter education initiative to do just that.
Some elected officials that we regularly overlook are those who operate within our criminal justice system. Sheriffs, District Attorneys (DAs), Judges, and County Commissioners collectively have the power to change lives in profound ways. In North Carolina, a sheriff is the highest ranking law enforcement officer in each county. While specific duties may vary from jurisdiction to jurisdiction, all sheriffs have duties related to three branches of law enforcement including policing, courts/criminal justice, and corrections/jail. The District Attorney (DA) is the elected public official in each county who represents the state in the prosecution of all criminal matters. North Carolina Judges preside over courtroom proceedings. While these are the basic roles of these officers, the impact they can have on the life of an average citizen is far from basic.
Carolina Justice Policy Center has prepared an educational program aimed at educating voters on the roles these elected official play and giving you the tools that you need to make sure your voice is heard when developing policies and practices in their respective offices. CJPC wants to come to your meetings, gatherings, churches and community events to educate and empower. If you are interested in CJPC presenting to your group, please call Attorney Dawn Blagrove, Executive Director of CJPC, at 919-682-1149 or via email at firstname.lastname@example.org
The US Supreme Court issued Georgia death row inmate Keith Tharpe a stay of execution last week because of racial bias from a juror who sentenced him back in 1990 for the murder of his sister-in-law, Jacquelin Freeman.
The justices granted him the stay while they decide if they will take up the appeal. If they decide against it, the stay will be lifted and Tharpe will be executed despite racial bias.
Tharpe’s attorneys argued that juror Barney Gattie violated his constitutional rights to a fair trial in his 1998 affidavit, when he referenced Tharpe using the n-word and wondered if “black people even have souls.” His attorneys further argued that he is ineligible for execution because he is intellectually disabled.
This furthers the argument that capital punishment is inundated with bias. The decision between death and life in prison rests not only on the severity of the crime, but also race and income.
Unfortunately, this kind of blatant racism is not an anomoly, even in capital cases. To learn more about this case and others in which overt racism played a clear role in capital sentencing, click here.