Debtors’ Prisons Return


By Brian Fencil

Photo courtesy of Wikimedia Commons.

“It’s on the rise. Absolutely,” says Sarah Geraghty, a senior attorney at the Southern Center for Human Rights, about the reemergence of debtors’ prisons in the US.

Although outlawed for 200 years, the recent recession, 40 years of tough on crime policies, and a law to protect indigent offenders has fashioned two tiers in the criminal justice systems: one for the rich and one for the poor.

For affluent offenders, immediate full-payment of fines and fees end the criminal case. For everyone else there is a second tier, which is commonly referred to as ‘debtors’ prisons,’ because it unfairly punishes indigent offenders with additional jail time and fees.

In this tier, offenders are often put on probation until their debt is paid. Being on probation can incur more fees and interest, and also carries the risk of returning to jail if a payment is missed (and yes, there is a fee for going back to jail too).

Currently, hundreds of thousands of people are finding themselves in debt with high court fines and fees which could mean facing jail time for missing a payment. Many of them have stories similar to Thomas Barrett, who was convicted of stealing a $2 beer from a convenience store and ended up serving a month behind bars and owing over $1,000.

At the time of his arrest, Barrett was unemployed and living on food stamps. He stole a beer from a convenience store and was caught. He pled guilty, and was given a $200 fine and 12 months of probation with a private parole firm. The firm immediately hit him with an additional $80 “startup fee” for using their services, which he couldn’t and subsequently didn’t pay. However, not paying the fine violated his parole and ended up landing him in jail. He only got out a month later when he convinced his Alcoholics Anonymous sponsor to give him the money.

Once free, the parole firm hit him again with more fees. This time for an ankle bracelet he was ordered to wear, totaling $360 a month. Barrett tried to make payments to his debt by selling blood plasma as often as he could, but only earned $300 a month for his efforts. Ten months after his arrest, Barrett owed over $1000, and because he was not able to pay, he was thrown back in prison.

It is easy to find people in similar situation as Barrett because for the last 40 years the US has been using overly harsh punishments as a deterrent for crime. In 1970, President Richard Nixon pushed the US to be tougher on criminals, which was followed by the War on Drugs through the 80s. Since then, the US fully embraced the theory that stiff punishments deter crime, even though significant evidence shows that this policy is only counterproductive.

In 1994, for example, California passed the “Three Strikes and You’re Out” law, which gave life sentences for repeat offenders. The goal, according to its authors, was “to keep murders, rapists, and child molesters behind bars, where they belong.” However, the law did not stick to its original targets and its effects broadened to even nonviolent offenders. By 2010, 4,000 inmates in California were serving life sentences for nonviolent crimes.

The practice then expanded countrywide. Last year the American Civil Liberties Union found 3,278 people serving life sentences for non-violent and sometimes petty crimes.

Now, the US incarcerates more of its citizens than any other country in the world and spends $67 billion annually on courts, prisons, and jails. To fund our war on crime, the criminal justice system is billing the offender, a policy that gained popularity with the recent recession and from pressure on politicians to lower taxes.

Now, courts often use fines (a fiscal punishment) in lieu of jail time much more often then in the past. However, fines alone can’t keep the criminal justice system afloat, and court added fees for services that were once free and are constitutionally required.

NPR recently conducted a state-by-state survey and found that, in at least 43 states and the District of Columbia, having a public defender comes with a price tag, 41 states charge room-and-board fees for inmates, and 44 states can bill parolees for being on parole.

Courts have also implemented fees for drug tests, anger management classes, crime victims’ funds, crime laboratories, and even court clerks. There are also high costs for phone calls and sometimes healthcare in jails and prisons.

NPR’s investigation found that issuing fines has fees as risen so much that in 1991, only 25 percent of prison inmates owed fines and fees. But, by 2004, two-thirds did.

Many indigent people who cannot pay these fines and fees are being arrest, although technically illegal. According to a 1983 Supreme Court case, Bearden v Georgia, a person cannot be arrested because they are too poor to pay a court fine, only if they “willfully” refuse.

The vagueness of the law gave judges the responsibility, and ability, to decide who is unable to pay and who is unwilling—a very difficult distinction. Judges now have to decide if an offender tried hard enough to find work, to save, and to do without superfluous pleasures. Some judges tell people to give up their phone or cigarettes to pay debts, or to ask family and friends for money. Sometimes, landing a job and starting to earn money isn’t enough to keep someone out of this cycle.

Stephen Papa, a homeless Iraq War veteran, was arrested after drunkenly thinking it was a good idea to climb to the roof of an abandoned building. A month later, Papa appeared in court, and the judge ordered him to pay a $50 installment on the $2,600 he owed. The week before court, Papa found a job in a steel factory, but had not started work yet. The $25 he had with him he had earned from building a shed for his grandparents. Regardless, the judge said he should have tried harder, and could have cut grass or collected cans.

The judge threw Papa in jail for three weeks for “willfully” not paying the installment. Papa lost his job, and the only place where he could find employment upon his release paid $4 an hour less—and he still had to pay the $2,600 remaining debt.

As if this wasn’t enough leaning against indigent offenders, for profit parole firms have emerged all over the country to manage a parole system that’s overflowing thanks to US crime policy. These firms have coercive tactics to gather money, exorbitant fees, and little oversight from the US government, says Geraghty.

In Georgia, the state with the most private parole firms, 80 percent of parolees of misdemeanor offenses are put on probation with a for profit parole firm. These firms commonly charge a $40 monthly fee on top of the court’s fines. A vast majority of these parolees are on parole for minor traffic violations, like changing lanes without signaling, but the fines and fees often grow to over $1000.

Geraghty tells BTR that these private parole firms are a large part of the reason why there is a sharp rise in debtors’ prisons.

“There is an inherent conflict of interest,” says Geraghty, in that these companies profit from keeping people in debt that keeps them from exiting the justice system.

In Georgia, she explains, there is even a law that makes all of the records from these private companies secret, barring the government from supervising.

These companies refuse to unveil how much money they demand from people under their supervision, and courts do not ask for it, so little is known about how much these companies collect. The Human Rights Watch investigated Georgian private parole firms, and found that they collect $40 million in fees every year.

Geraghty believes that parole services are a public function and should return to being one. She sees their removal, or at least government oversight of them, would treat indigent offenders much more justly.

As a sign of a small (although potential) victory for offender’s rights, she notes that Georgia’s Supreme Court is also currently deciding if private probation firms are allowed to impose punishments for parolees who do not make the minimum payments.

The case is the latest in a mountain of litigation that has arisen in recent years attempting to absolve the criminal justice system of debtors’ prisons. The SCHR alone has ended jail fees for pretrial detainees in Homerville, Georgia, stopped a fine collection task force in the City of Gulfport, Mississippi, secured lawyers for indigent parents, and filed countless lawsuits for those who cannot pay such egregious fines and fees.

Despite the challenges ahead, eradicating debtors’ prisons in not like solving other crises—like say climate change—where the solution is opaque and multi-faceted.

“There are a lot of options,” Geraghty says about what can be done. The real problem, she says, is time. Addressing each one of the issues causing debtors’ prisons will have to be done state by state, and sometimes county by county.

The process takes time, and in a world where the phrase ‘time is money’ rings truer than ever, that’s time that many defendants in debtors’ cases don’t have.