When people are convicted of crimes, we know that they are sentenced to time in jail or prison, to perform community service, and sometimes to undertake drug or alcohol treatment. But they are also routinely sentenced to legal debt. Beyond just fines or restitution, defendants in some jurisdictions are required to pay for costs related to their public defender, DNA collection, jury, court paperwork, room and board in prison, electronic monitoring, probation, even for collection of the debt itself. They are, in essence, charged "pay as you go" fees for their use of the criminal justice system.
In my home state of Washington, for example, every person convicted of a felony offense has a mandatory minimum fee of $600 imposed per criminal charge. In some parts of the state, defendants are regularly charged $450 for a public defender (an attorney appointed to people who cannot afford one) and $200 for "court costs." Some judges interpret other statutes in such a way that fees average $2,500.
In California, there's a $50 fee to register for a public defender. But it'll be $30 if you need a payment plan for your misdemeanor fines, and another $300 fine for any failure to pay. Arizona simply tacks an 83% surcharge onto penalties. Thus, a $500 fine actually costs $915. Some of this money isn't even used to support Arizona's criminal justice system. In fact, 10% of it goes to the state's "clean elections" financing program. That's right, candidates for statewide office fund their campaigns with cash from criminals.
These debt sentences — now common, but irregularly applied across the U.S. — demand careful scrutiny. Yet we have very little information about how monetary sanctions are imposed and to what effect. We don't even know if we're spending more to enforce and collect these debts than is recouped from defendants.
Here's what we do know: Monetary sanctions lead to long-term negative consequences for debtors. In many states, this fiscal shackle long outlasts the period spent in prison or on probation. Until people have paid in full, they remain under court supervision, must regularly report to court clerks or judges and, in many jurisdictions, cannot regain the right to vote.
In 1983 in Bearden vs. Georgia, the U.S. Supreme Court unanimously ruled that only "willful" non-payers (those with the means to pay who refuse to) could be incarcerated for nonpayment. And yet every day in this country people are sent to jail because they aren't able to make sufficient monthly payments toward their legal debt. Judges have assessed defendants' ability to pay based on whether they have stood by the side of the road with a sign begging or collected soda cans, asked friends and family for "loans," or used all their state-issued disability or unemployment payments.
The people least likely to earn a steady wage — the homeless, unemployed and the physically and mentally limited — are routinely labeled "willful" non-payers and sentenced to jail for not fulfilling their sentences. Yes, we have returned to debtor's prisons.
The obvious individual consequences include economic and emotional strain, even when all other forms of punishment have been served. But the effects ripple outward. Debt leads many defendants to "go underground" and then never make any payments, which could include restitution to victims. They wind up further cut off from regular jobs or benefits that might help.
This system doesn't rehabilitate people and integrate them back into the community; it does the opposite. Moreover, just as the nation's skyrocketing incarceration rate has far disproportionately affected African American and Latino men, so too does court-imposed debt fuel race and class inequality.
The broader implications for society can't be ignored either. We as citizens are shouldering the fiscal costs of this system of punishment, and the social costs stemming from non-rehabilitated offenders. And there is no evidence that using debt to administer justice is in any way creating a safer society.
Judges in the court systems I studied often said that monetary sanctions offered defendants a way to demonstrate their accountability or express remorse. The problem is, this creates a two-tiered system of justice. People with access to money serve their time, pay their legal debt and are done. Yet for the vast majority of people with felony convictions — those who are poor, homeless, undereducated and underemployed, physically or mentally disabled, or chemically addicted — that is not the case. These people do not have, nor are they likely to attain, the money required. Many wind up forever tethered by debt to the criminal justice system.
The aim of criminal punishment should not be to permanently stigmatize and politically and economically marginalize people. And yet, if we look at this system clear-eyed, we must recognize that is exactly what we are doing.
States need to reevaluate how courts assess, monitor and sanction defendants regarding their ability to pay. For example, if a defendant qualifies as "indigent" — thus eligible for a public defender — he should also be seen as unable to pay court fees and fines beyond restitution. Furthermore, when courts gauge a defendant's ability to pay his legal debts (his "willfulness"), only work-related income should be on the table. In other words, disability payments, loans, begging by the side of the road and undocumented labor should not be considered legitimate sources of money for debt payments.
Until states turn the tide on debt sentences, they will continue to undermine their own systems of justice. How can anyone have faith in a system so detached from its aims to improve public safety and to rehabilitate people? And that extracts penalties — sometimes with interest — that can follow the poor to their graves?