By Christopher Zoukis
Stung by a series of lawsuits filed across the nation challenging the practice of jailing people unable to pay court fees and fines, Texas legislators passed a law that requires judges to offer community service alternatives to low-income defendants convicted of offenses where the maximum punishment is a fine. The law went into effect on September 1, 2017.
One lawsuit, filed on behalf of five indigent plaintiffs in June 2017, alleges that Lexington County, South Carolina has been engaging in the equivalent of modern-day “debtors’ prisons” by issuing arrest warrants for people unable to pay court-ordered fees or fines for minor infractions such as parking tickets, then jailing them without offering them legal counsel or determining whether they have the ability to pay in the first place.
Another suit, filed in September 2015, seeks to overturn the entire system of court-ordered fines and fees in Orleans Parish, Louisiana, which are used to finance court operations. In an attempt to resolve the class-action case, Orleans Parish judges voided $1 million in unpaid fines in July 2017, hoping to satisfy the plaintiffs while leaving the current system intact.
Although the U.S. Supreme Court outlawed debtor’s prisons in the 1980s, the new law in Texas will help to reinforce that ban. According to the Texas Judicial Council, 95 percent of warrants issued in the state in 2016 were for fine-related offenses, and more than 640,000 people spent at least one night in jail on charges that typically carry no jail time.
“If the court has someone not able to make a fine, but is trying to repay their debt to society then this is a good option,” explained Bowie County Attorney John Delk.
The class-action lawsuit filed by the ACLU in South Carolina stems from an incident involving Lexington County resident Twanda Marshinda Brown.
The single mother of seven children, five of whom live with her, was working at Burger King, living in Section 8 housing and earning less than $7,200 per year when she was ticketed by a Lexington County sheriff’s deputy for driving on a suspended license with no tag light.
At Brown’s initial court hearing, Judge Rebecca Adams, one of the defendants named in the suit, did not inform Brown that she had the right to a court-appointed attorney, or that she could claim financial hardship and seek a waiver of the $40 public defender application fee.
Without being told about her rights, Brown pleaded guilty to the charges and was ordered to pay a total of $2,407.63 in fines. Judge Adams required her to pay in $100 monthly installments, though Brown said she could only afford $50.
“I don’t care what happens,” Adams said, according to the complaint. “I want my money on the 12th [of the month].”
After making five payments, Brown could no longer continue because her checks from Burger King kept bouncing, she told Rewire in a phone interview.
About four months later sheriff’s deputies showed up at Brown’s door on a Saturday morning and served her with a bench warrant requiring her to pay $1,907.63 – the remainder of the balance she owed – or serve 90 days in jail. She couldn’t pay and was arrested.
Brown ultimately spent 57 days in jail, and thinks she was released early because she earned time off her sentence by cleaning at the facility. In addition to being separated from her children, she lost her job as a result of her time behind bars. See: Brown v. Lexington County, U.S.D.C. (D. SC), Case No. 3:17-cv-01426-MBS-SVH.
In Louisiana, the judges in Orleans Parish who agreed to waive $1 million in fines were responding to a lawsuit filed by Alec Karakatsanis, founder and executive director of the Civil Rights Corps. He told the Louisiana Record that the suit seeks a declaration that financial conflicts of interest permeate the judges’ debt-collection system in violation of the Due Process Clause of the U.S. Constitution.
The plaintiffs allege a conflict of interest exists when state judges who find defendants guilty impose costs or fines that help finance court operations. (The fees and fines are not used to pay the judges’ salaries.)
“For many years, impoverished people were routinely jailed in brutal conditions simply because they could not pay debts set by [Orleans Parish] judges who have a financial interest in that money,” Karakatsanis said. “Those practices are flagrantly unconstitutional.”
The plaintiffs were each reportedly jailed for over 72 hours and did not receive a hearing as to their ability to pay court costs and fines. According to the complaint, “the courts created an unconstitutional debtors’ prison by jailing the defendants for failure to pay without giving them a hearing.”
Karakatsanis said the root of the case is the reality that Orleans Parish judges depend on convicting defendants and collecting fines and fees to fund their own courthouse budgets.
“We want to see a legal system that doesn’t depend on convictions to fund itself and a society in which no human being is placed in a jail cell just because they cannot make a monetary payment,” he added.
The suit remains pending, with summary judgment motions filed in June 2017. See: Cain v. New Orleans City, U.S.D.C. (E.D. La.), Case No. 2:15-cv-04479-SSV-JCW.
The practice of jailing the poor who are unable to pay court costs and fines is a nationwide problem. [See: PLN, April 2017, p.48; Jan. 2017, p.42; July 2016, p.52]. It has become so pervasive that under the Obama administration, the U.S. Justice Department sent a letter to state court administrators to clarify that imposing jail time for unpaid fines can violate federal law and may be unconstitutional.
Incarcerating the poor for their inability to pay fines is more than just a potential violation of federal law, though, then-Attorney General Loretta Lynch said in a statement.
“The consequences of the criminalization of poverty are not only harmful – they are far-reaching,” she declared. “They not only affect an individual’s ability to support their family, but also contribute to an erosion of our faith in government.”
Court-ordered fines and fees are often an important part of a municipality’s budget. New York City alone collected $1.9 billion in such costs during fiscal year 2015. California has over $10 billion in outstanding court fees and fines.
The revenue generated from court-related costs does not always stay in the judicial system. In California, for example, funds from such penalties can end up in the California Beverage Container Recycling Fund, Cigarette Tax Fund, Underground Storage Tank Cleanup Fund, State Fire Marshal Fireworks Enforcement and Disposal Fund, Private Security Services Fund, or the Fish and Game Propagation Fund.
In Oklahoma, according to the New York Times, indigent defendants are billed for requesting a public defender; the money collected from such fees is used to fund the District Attorney’s office. On the day that a Times reporter visited the county jail in Tulsa, he found 23 people who were imprisoned for failure to pay fines or fees.
Tulsa County District Attorney Stephen Kunzweiler thinks that billing someone who cannot afford an attorney for the appointment of a public defender is not sensible.
“It’s a dysfunctional system,” he said.
Legislators and judges have also expressed concerns over revenue from court-ordered costs being used to balance budgets.
“It brings me a great deal of discomfort, I must say, when I look at all the buckets hanging off our fines and fees,” noted California Supreme Court Chief Justice Tani Cantil-Sakauye.
According to the Sacramento Bee, only 12 percent of defendants who were incarcerated were also ordered to pay fines in 1986. Less than two decades later, in 2004, that number had increased to 37 percent. Today it is likely much higher.
Massachusetts state Senator Michael Barrett, chair of the Senate Committee on Post Audit and Oversight, expressed concerns over the continued practice of collecting large amounts of money from poor defendants through court fines and fees.
“The fact that we’re making substantial money off people who have otherwise paid their debt to society and have no money, that’s the troubling aspect of this broader question about criminal justice reform,” Barrett stated.
A report issued by his committee found more than 100 incidents where defendants were jailed because they couldn’t afford to pay fines. And in some cases, the cost of incarceration exceeds the cost of the unpaid fine – resulting in a net loss for taxpayers.
Sources: Associated Press, Boston Globe, The New York Times, Sacramento Bee, www.usnews.com, www.louisianarecord.com, www.thecrimereport.org, www.rewire.news, www.wbur.org, www.kvia.com, www.ktbs.com
This article originally appeared in Prison Legal News on October 10, 2017.
About Christopher Zoukis
Christopher Zoukis is an outspoken prisoner rights and correctional education advocate who is incarcerated at FCI Petersburg Medium in Virginia. He is an award-winning writer whose work has been published widely in major publications such as The Huffington Post, Prison Legal News, New York Daily News and various other print and online publications. Learn more about Christopher Zoukis at christopherzoukis.com and prisoneducation.com.