Debtors' prisons are back. The criminal justice system creates debt with tickets for quality-of-life offenses, proliferating court fees and criminal fines. Those who do not pay are threatened with jail, and this threat allows governments to extract payments from the poorest citizens even at the expense of their food, housing or other basic needs. Communities of color bear the brunt as racial inequalities in criminal justice and economic life converge. These practices burst into public view with the unrest in Ferguson, Mo., and activists' calls for change now echo widely. Justice will not be satisfied, however, if we simply replace debtors' prisons with debt peonage.
From the American Civil Liberties Union to the Department of Justice to the New York Times editorial page, would-be reformers are embracing the idea that mandatory "community service" could provide an alternative to debtors' prison. The basic idea is intuitive enough. Rather than jail someone who cannot pay a fine, why not allow him to "work off" the debt? Under this system, an unemployed or underemployed person works at a nonprofit or government agency in exchange for debt relief, not cash.
So what's the problem? The crucial point is that incarceration remains the consequence for not working to the court's satisfaction. That puts tremendous pressure on workers. And when "pay or jail" becomes "work or jail," that choice arguably violates the Constitution's 13th Amendment, which abolished slavery and involuntary servitude. Several early 20th century Supreme Court decisions struck down practices in the Jim Crow South that used the criminal justice system to impose a similar three-way choice of "pay, work or jail."
The 1914 case United States vs. Reynolds comes closest to today's problems. Alabama selectively prosecuted and convicted African Americans for minor crimes, imposed fines they could not afford, threatened incarceration if they did not pay, and then offered a way out. A private employer would cover the fine if the defendant agreed to repay the employer through labor. If the worker later dared to quit, he could be prosecuted and convicted again. The court struck down this system that kept a defendant "chained to an ever-turning wheel of servitude to discharge the obligation."
The dangers of abuse should be obvious when, as Reynolds noted, "[t]his labor is performed under the constant coercion and threat of another possible arrest and prosecution." Employers gain tremendous power and no reason not to exploit it. Confining this power dynamic to the nonprofit or public sectors — as modern reformers typically propose — hardly eliminates the risk.
Beyond the right to quit, labor and employment laws ordinarily protect workers from exploitation, unsafe conditions or abuse. But by styling this work as "community service," these programs attempt to bypass labor protections. In Los Angeles, upward of 100,000 workers each year perform court-ordered community service, often for hundreds of hours and in lieu of paying a fine. They must sign standard "contracts" declaring that they are volunteers, not employees, and therefore have no employment rights, including workers' compensation for on-the-job injuries.
A federal judge in New York ruled last year that workers in a related court-supervised work program had no claim to the minimum wage. There, too, unpaid work was offered as an "alternative to incarceration" for minor violations and to ensure that "[d]efendants who do not have money to make restitution should, when practical, pay for their offense through community service."
Even if community service workers received debt reductions based on the minimum wage, this still would be tantamount to seizing 100% of their earnings. That is contrary to federal standards that cap wage garnishment to preserve for workers some gain from their labor and some basis for their subsistence. Yet in Los Angeles and elsewhere, workers even have to pay a fee out of pocket for the privilege of working for free to stay out of jail. These fees go to the courthouse referral agency that assigns defendants to specific work sites.
One final problem: When the criminal justice system supplies agencies with free labor, they have every incentive to use it instead of hiring regular employees. New York's experiment with large-scale "workfare" in the 1990s — unpaid labor to maintain welfare benefits — is instructive. Not only did that effort subject workers to unsafe conditions and harassment, but it also allowed Rudolph Giuliani's administration to cut thousands of unionized public sector jobs by subbing in workfare workers.
Debt peonage may indeed be the lesser evil relative to debtors' prison. But why accept those choices? At issue are government-manufactured debts born in part of racial profiling and "broken windows" policing. Why not change the criminal justice practices that produce these debts? Moreover, debtors' inability to pay is born of unemployment and the degradation of jobs. Only by ignoring a failing labor market can we celebrate coerced, unpaid, unprotected work just because human caging is even worse.
Noah Zatz is a professor of law at UCLA. He recently coauthored the report "Get to Work or Go to Jail: Workplace Rights Under Threat" with the UCLA Labor Center and A New Way of Life Reentry Project.