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.
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 Sixth Amendment of the United States guarantees the right to a speedy trial – Kharon Davis has not been granted that right.
At age 22, he was charged with capital murder and put in the county jail. Ten years later, he is still there, awaiting trial. He has not yet been found guilty, but has already served half the minimum sentence for murder. So far he has had nine trial dates, the first of which was in 2008.
The case, State of Alabama vs. Kharon Torchec Davis, shows loopholes in the constitution that supposedly ensures the right to a speedy trial. In capital murder cases, it is not unusual for the defendant to have to spend two to three years awaiting trial behind bars if they cannot afford bail.
Davis has taken some blame for the delay of his trial – he replaced his second team of court-appointed lawyers due to a lack of trust, even though he was warned that it would further postpone the trial.
Davis has had two judges and four teams of lawyers. His first lawyer was the father of one of the investigating officers of the case, and cross-examined his son at the preliminary hearing. Four years later, the district attorney raised a concern about a conflict of interest and appointed him a new lawyer, who still needed time to finish up another murder case.
He continues to claim his innocence and has denied plea deal offers. In February, the state attorney general took over the prosecution and dropped the possibility of the death penalty. Jury selection for the trial finally began in mid-September.
At the time this piece was published, four people had been arrested in Durham for allegedly taking down a Confederate statue. They allegedly broke the law. Now let’s talk about justice.
History has painfully provided us with countless examples of how law and justice, though they are two related concepts, can be different. Far too often, they are. It is easier to denounce lawful injustice when we can hide behind decades of separation, so perhaps it can be useful to start with examples of individuals who fought for justice generations before us.
Many currently highly regarded activists of the past have broken the law in the name of justice, in the United States and elsewhere. History has been kind to the activists of the Boston Tea Party. Slave Rebellions were lead by currently widely celebrated heroes who not only fought for their freedom, but helped others escape slavery. Civil Rights activists of the 1960s who compromised their personal safety to participate in sit ins and marches parted ways with the law in the name of justice. And notably, they did not count on the law to be enforced in ways that would protect them. Many of us are far too familiar with images and stories of protesters being spat on, beaten, and killed with impunity.
And then there is the present. We cannot afford to lounge in complacency about what is happening in our country today. We cannot simply rely on hindsight when we discuss the distinction between law and justice. Hatred’s heroes have become much more visible, more powerful. How far will the law take us towards justice? Most importantly, what do we do when we feel that the law and true justice have parted ways? Who has the power to achieve justice?
The Carolina Justice Policy Center, in keeping with a commitment to true justice, wants to hear your thoughts. But more importantly, we want to hear what you are doing to enact your vision of justice. If you are concerned about justice in your community and are planning to do something about it, we want to help you share your plans and call others to action. Please consider writing for our blog by submitting your thoughts to email@example.com with the subject line “CJPC Justice Blog.” Let’s talk about justice. And then let’s make it happen.
B. Tessa Hale
Carolina Justice Policy Center