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.
It has been about one year since film director Ava DuVernay released the documentary “13th.” This documentary is widely available on Netflix. Today, as the Black Lives Matter movement continues to unfold and national politics have veered towards a criminal justice system that yet again relies heavily on mass incarceration, 13th continues to provide useful context for conversations about race and criminal justice. At Carolina Justice Policy Center, our intern Molly Riesenberger recently watched 13th to share what she learned with our readers:
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction” – Thirteenth Amendment of the United States Constitution
According to University of Connecticut professor Jelani Cobb, the drafters of the Constitution left “a loophole that was immediately exploited” in the 13th Amendment. Ava DuVernay’s documentary, 13th, connects this ambiguous clause to mass incarceration in America. The amendment abolished slavery, but the clause turned incarceration into the modern-day slavery. Here are ten things I learned from DuVernay’s film:
- When slavery was abolished, the millions of people responsible for the economic productivity in the south were freed. The south was left with the question: how do we rebuild? The answer was in the 13th African-Americans were arrested and imprisoned for minor crimes, then forced to provide the labor needed to rebuild the economy.
- In the land of the free, it’s ironic that we have the highest incarceration rates in the world. The documentary starts off with some striking statistics – the United States makes up 5% of the world’s population, but has 25% of the world’s prisoners.
- Let’s look at the numbers. In 1970, the prison population was 357,292. In 2014, the prison population was 2,306,200. Clearly, incarceration is not just a trend – it’s become a part of American culture.
- To break it down even further, African-American men have a significantly higher percentage of lifetime likelihood of imprisonment – one in 17 white males will do prison time, compared to only one in three African-American males.
- Following the civil war and the turn of the twentieth century, the film, ‘Birth of a Nation’ portrayed the African-American male as violent, animal-like, and evil. The film is widely known for being a catalyst to the rebirth of the Ku Klux Klan.
- The film examines the effect of the various presidencies on criminalization. It starts with Nixon’s southern strategy – he recruits southern, poor, working-class whites into the Republican fold and criminalizes Blacks. The strategy can be summarized by this quote by Lee Atwater, “…you’re talking about cutting taxes and all of these things you’re talking about are totally economic things, and the by-product of them is Blacks get hurt worse than whites.”
- Nixon was the first to coin the term “war on drugs,” but Reagan was the first to turn the term into a literal war. In the Reagan era, the war on drugs became a part of our modern culture, andBblack people became overrepresented in the news as criminals. The Nixon and Reagan administrations are responsible for the cycle of criminalizing African-Americans suffering from drug addictions, rather than increasing resources for treatment or rehabilitation.
- The 1994 Federal Crime Bill, created under Bill Clinton, deployed the latest technology and tactics to make communities safer. It basically led to the massive expansion of the prison system – it increased state funding for prisons, put 100,000 police officers on the street, and contributed to the exploding prison population. Clinton now realizes that this bill led to hyper-incarceration and was a mistake.
- One of the things that the documentary explains is ALEC, or the American Legislative Exchange Council. This private club is made up of people who are both politicians and members of corporations. The council writes laws for the Republican Party, including Florida’s “Stand your Ground” law. They also are responsible for SB 1070, which gave the police the right to stop anyone they thought to be an immigrant. This kept CCA prisons overflowing with immigrant detainees. Oh, and – CCA is one of the corporations that helped ALEC write the immigration law.
- Not everyone goes to trial. If every single person had a trial, the entire system would shut down. It often comes down to: you can take this plea deal and go to jail for three years, or you can go to trial and go to jail for 30 years if you lose. As a result, 97% of people do not go to trial and instead take a plea bargain.
This film made me feel like we have regressed as a society: why are we accepting a modern form of slavery? How do we break the cycle of mass incarceration?
Families with incarcerated loved ones will continue to face challenges as they grapple with the exorbitant cost of phone calls with inmates. These calls can be as high as $10 per minute at some facilities. Two years ago, telecom companies and some state governments filed suit against FCC rules which limited the price of in state prison phone calls. Last month, a federal appeals court ruled against the FCC rules. Learn more at http://www.npr.org/2017/06/18/533438857/fcc-decides-to-cap-prices-of-in-state-phone-calls-by-prison-inmates.
In an unprecedented move, the FDA has called for the removal of opioid painkiller Opana from the market. The FDA has never before asked that an opioid pain medication be pulled from the market due to its strong potential for abuse. The mandate is in response to the opioid crisis. Opana is about twice as powerful as the opioid OxyContin, which is also frequently abused. Learn more at http://www.cnn.com/2017/06/08/health/fda-opioid-opana-er-bn/index.html
In response to a Charlotte Observer investigation regarding prison corruption, Senate leader Phil Berger has said that he plans to call for a legislative inquiry on prison corruption. Moreover, Governor Roy Cooper has called upon Secretary of Public Safety Erik Hooks to identify ways to address the issues identified in the investigation. The investigation exposed a host of problems. These include officers physically abusing inmates, permitting or encouraging attacks on inmates, having sex with inmates, and running contraband rings inside prisons. Learn more at http://www.newsobserver.com/news/politics-government/state-politics/article155319679.html
The DEA has proposed action that is reminiscent of the unsuccessful “War on Drugs” of the 1980s. This “War on Drugs” involved draconian and discriminatory sentencing for drug offenders. The current proposal is that the DEA hire a separate prosecutor corps of as many as 20 prosecutors to prosecute cases related to drug trafficking, money laundering. The proposal, according to DEA spokesman Rusty Payne, is in response to the opioid crisis. Opponents of the plan, including the Drug Policy Alliance, fear that the plan exceeds the DEA’s authority under federal law and represents movement away from treating drug addiction as a public health crisis. Learn more at http://www.npr.org/2017/05/04/526784152/dea-seeks-prosecutors-to-fight-opioid-crisis-critics-fear-return-to-war-on-drugs