Two reports published by NYU's Brennan Center for Justice and the American Civil Liberties Union (ACLU) reveal a rising trend of patently unconstitutional practices in cash-strapped states, where a growing number of impoverished people are jailed for being unable to pay their legal fees – including charges for use of public defenders, a guaranteed right in the United States. The resurgence of these draconian "debtors' prisons" has been documented in at least 13 of the 15 states with the largest prison populations in the country, including California, Arizona, Michigan and Alabama.
"Incarcerating people simply because they cannot afford to pay their legal debts is not only unconstitutional but also has a devastating impact upon men and women whose only crime is that they are poor," said ACLU senior staff attorney Eric Balaban.
Many states view the fees as a method for helping to alleviate budget deficits. In New Orleans, Louisiana, legal fines comprise almost two-thirds of criminal courts' operating budgets. But the ACLU found in its report, "In for a Penny: The Rise of America's New Debtors' Prisons," that jailing individuals for failing to pay legal fees actually places the financial burden on the state, wasting taxpayer money and resources to keep those individuals in jail or on public welfare as they struggle to pay their overwhelming debts.
Moreover, these and other penalties creates obstacles for those re-entering society after completing their criminal sentence; the Brennan Center report, "Criminal Justice Debt: A Barrier to Reentry," notes that eight of the 15 states studied suspend driving privileges of individuals who miss debt payments, while seven states require them to complete their full payments before regaining eligibility to vote. Such unnecessary setbacks often pave the way for those on probation to return to jail through no fault of their own.
"We are undermining the integrity of our criminal justice system and creating a two-tiered system of justice in which the poorest among us are punished more harshly than those with means, at a great cost to taxpayers," said ACLU deputy legal director Vanita Gupta.
Imprisoning probationers for failing to pay court debts was found unconstitutional in 1980, when Georgia resident Danny Bearden was sent to prison for two years when he could not pay $550 in legal fees, despite his efforts. In Bearden v. Georgia, the Supreme Court ruled that such practices violated the Equal Protection Clause of the 14th Amendment – but states throughout the country have begun openly disregarding these principles in their efforts to balance their budgets.
The ACLU report highlights a few exemplary cases. Gregory White, a homeless man in Louisiana, was arrested for stealing $39 worth of food from a grocery store and assigned $339 in legal fees; when he was jailed for being unable to pay, White spent 198 days in jail at a cost of $3,5000 to the city.
Georgia resident Ora Lee Hurley owed $705 in fines from a 1990 drug possession conviction and remained in jail for eight months for failing to pay.
Kawana Young, a 25-year-old single mother in Michigan, was told after the fact that her community service hours would not satisfy her debts because she had volunteered with a nonprofit organization. Young has since been jailed five times for being unable to pay her fees.
And Percy Dear, a New Orleans resident who suffers from epilepsy, schizophrenia and bipolar disorder, was arrested for begging in 2007. After pleading guilty, Dear was sentenced with either paying an immediate fine of $200 or spending 20 days in jail. Dear was unable to pay his fine at once and was incarcerated. These particular "fine or time" sentences are a glaring example of methods that plainly punish indigent cases while allowing wealthy individuals to go free on the same charges.
Judge Calvin Johnson, who served for 17 years in the Criminal District Court or Orleans Parish, said that regularly sentencing defendants in a "fine or time" method could have cost the city more than it collected. "30 days or $100 – that was something I heard every day," said Johnson in the ACLU report. "Now, how can you describe a system where the city pays $23 a day to the Sheriff to house someone in jail for 30 days to collect $100 as anything other than crazy?"
"People are emerging from the criminal justice process with significant debts that they cannot hope to repay," said Brennan Center Deputy Director Rebekah Diller. "As a result, these fees are creating new paths back to prison for those unable to pay."
Former Montgomery County, Ohio, public defender Glen H. Dewar is profiled in the ACLU report for his efforts in eliminating the state's debtors' prisons. Dewar stated in the report, "My estimate is that 20 to 25 percent of all local incarcerations statewide are for fines and costs, while about 50 percent of arrests are for fines and costs … [until 2000], none of the persons arrested for nonpayment of fines and costs appeared on any court docket. Nor were they ever scheduled to appear at any particular time before any particular judge or magistrate." Before county jail records were computerized, Dewar said, "the scope of the problem, in terms of both numbers of arrests and days in jail, remained hidden … the county also expanded jail space at a cost of millions, unaware of the fact that it was not for criminals but debtors."
As noted in the Brennan Center report, several states have also started to utilize practices that violate the Sixth Amendment, which guarantees defendants a right to counsel. Florida, North Carolina and Virginia have all implemented mandatory defender fees and provide no opportunity to waive them for indigent cases.
According to the report, "defender fees often discourage individuals from exercising their constitutional right to an attorney – leading to wrongful convictions, over- incarceration and significant burdens on the operation of courts. In Michigan, for example, the National Legal Aid and Defender Association found that the threat of paying the full cost of assigned counsel resulted in misdemeanor defendants systematically waiving their right to counsel – at a rate of 95 percent in one county." In Virginia, defendants often face up to $1,235 per count for some felonies.
The Brennan Center recommends that states eliminate public defender fees and offer community service programs that build job skills, among other state and local policy reforms; the ACLU similarly recommends that a judicial assessment of a convicted defendant's ability to pay fines must be comprehensive.