Profit and Punishment

1. The criminalization of poverty perpetuates a cycle of debt and incarceration

"This is truly a national crisis," says Lisa Foster, "This is everywhere. All fifty states."

Poverty penalty. Across America, poor defendants face a system that traps them in a cycle of debt and incarceration. Minor offenses like traffic violations or petty theft can lead to jail time, hefty fines, and fees that snowball over time. Unable to pay, individuals often face additional penalties, including more jail time, creating a vicious cycle.

Disproportionate impact. This system disproportionately affects low-income communities and people of color. In many cases, individuals lose jobs, housing, and even custody of their children due to incarceration for unpaid fines. The criminalization of poverty extends beyond the initial offense, creating long-lasting consequences that make it nearly impossible for people to escape financial hardship.

Constitutional concerns. The practice of jailing people for inability to pay fines violates constitutional protections against excessive fines and debtors' prisons. Despite this, many jurisdictions continue to use aggressive collection tactics, including arrest warrants for unpaid fines, perpetuating a system that punishes poverty rather than addressing underlying issues.

2. Court fines and fees have become a backdoor tax on the poor

"Plaintiffs are impoverished individuals who have been saddled with court debts without any inquiry into their ability to pay and who have had debt-collection arrest warrants sought and issued against them for no reason other than that they are too poor to pay these court debts."

Revenue generation. Many local governments have come to rely on court fines and fees as a significant source of revenue, especially since the 2008 financial crisis. This has led to a proliferation of charges, including:

• Court costs
• Jail "pay-to-stay" fees
• Probation supervision fees
• Public defender fees
• Various surcharges for specific funds (e.g., law enforcement training, courthouse renovation)

Hidden taxation. These fines and fees effectively function as a regressive tax, placing a heavier burden on those least able to pay. Unlike traditional taxes, they lack transparency and democratic oversight, often being implemented by judges or bureaucrats rather than elected legislators.

Mounting debt. For many defendants, these costs quickly become insurmountable. A simple traffic ticket can balloon into thousands of dollars of debt due to late fees, collection charges, and additional penalties for non-payment. This debt can follow individuals for years, affecting their credit, employment prospects, and ability to obtain housing or loans.

3. Cash bail and private probation companies exacerbate inequality in the justice system

"If you were held on pretrial bond in jail, the likelihood that you'd get a sentence of incarceration after a plea or trial was three times higher than if you were able to post bail."

Wealth-based detention. The cash bail system creates a two-tiered justice system where those with financial resources can secure their freedom while awaiting trial, while poor defendants remain incarcerated. This pretrial detention often leads to:

• Job loss
• Housing instability
• Increased likelihood of pleading guilty (even if innocent) to secure release

Privatized supervision. Many jurisdictions have outsourced probation supervision to private companies, which charge fees to probationers. This creates a profit motive for extended supervision and can trap individuals in a cycle of debt and violations.

Reform efforts. Some states, like New Jersey, have implemented bail reform to reduce reliance on cash bail. These efforts aim to base pretrial release decisions on risk assessment rather than ability to pay, but face pushback from the bail bond industry and some law enforcement groups.

4. Driver's license suspensions for unpaid fines create a poverty trap

"How ridiculous is the idea that we take away a person's ability to work because they haven't made enough money to pay a fine or fee?"

Counterproductive policy. Many states suspend driver's licenses for unpaid court debt, creating a catch-22 situation:

• Individuals can't pay their fines without working
• They can't get to work without driving
• Driving with a suspended license risks further fines and criminal charges

Widespread impact. This practice affects millions of Americans:

• 11 million people have suspended licenses due to unpaid court debt
• In some states, like Florida, up to 1 in 8 drivers have a suspended license

Reform momentum. A growing number of states are ending this practice, recognizing its counterproductive nature. Advocates argue that license suspension should be reserved for dangerous driving, not debt collection.

5. Rural counties often rely heavily on court revenue, incentivizing aggressive enforcement

"We have an entire criminal legal system in this region and across the state that is wealth-based and criminalizes people daily for their poverty."

Budget dependence. Many rural counties and small towns have come to rely heavily on fines and fees to fund basic government operations. This creates a perverse incentive to aggressively enforce minor infractions and resist reforms that might reduce this revenue stream.

Examples:

• Ferguson, Missouri: Prior to reforms, derived 23% of its budget from court fines and fees
• Some small Louisiana towns derived over 75% of their budgets from traffic fines

Resistance to change. This reliance on court revenue makes it politically difficult to implement reforms, as local officials fear budget shortfalls. However, studies have shown that aggressive fine collection often costs more in incarceration and administration than it generates in revenue.

6. Debtors' prisons persist despite being technically illegal

"We are not blind to the practical problems our ruling may present ... But the problem this case presents does not result from the sudden application of a new and unexpected judicial duty; it stems instead from the enduring unwillingness of our society, including the courts to correct a deformity in our criminal justice system that close observers have long considered a blight on the system."

Legal fiction. While explicitly outlawed, de facto debtors' prisons persist through various mechanisms:

• Jailing for "contempt of court" when unable to pay fines
• Arrest warrants for failure to appear at payment hearings
• Incarceration for probation violations related to unpaid fees

Judicial discretion. Many judges continue to jail individuals for unpaid fines without conducting constitutionally required ability-to-pay hearings. This practice persists due to lack of oversight, entrenched habits, and sometimes deliberate attempts to generate revenue.

Reform challenges. Ending debtors' prisons requires changing longstanding practices and addressing budget concerns. It also necessitates retraining judges, prosecutors, and court staff to prioritize justice over revenue collection.

7. Bipartisan support is growing for criminal justice reform and ending wealth-based detention

"Criminal justice reform is not a right and left issue, but a right and wrong issue."

Unlikely allies. Organizations across the political spectrum, from the ACLU to Americans for Prosperity, are advocating for reforms to end wealth-based detention and reduce reliance on fines and fees.

Shared concerns:

• Fiscal conservatives object to the inefficiency and cost of jailing people for unpaid fines
• Libertarians oppose government overreach and infringement on individual liberty
• Progressives emphasize the system's disproportionate impact on marginalized communities

Reform examples:

• FIRST STEP Act (federal level)
• Bail reform in New Jersey and other states
• Driver's license suspension reforms in multiple states

8. Judges play a crucial role in perpetuating or dismantling the system of fines and fees

"I think some of them purposely want to punish the poor ... I think they just really believe that if you make things difficult on poor people, they won't be poor anymore. Some of them just hate poor people."

Judicial discretion. Individual judges have significant power to either perpetuate or challenge the system of fines and fees:

• Some judges routinely jail people for unpaid fines without conducting ability-to-pay hearings
• Others have taken stands against these practices, refusing to impose excessive fines or jail people for poverty

Structural pressures. Many judges, especially in rural areas, face pressure to generate revenue through fines and fees. Some see it as part of their role to collect money for the court system and local government.

Reform from the bench. Forward-thinking judges have played crucial roles in reforming the system:

• Issuing rulings against unconstitutional practices
• Advocating for legislative changes
• Implementing new policies in their own courtrooms to protect defendants' rights

9. Civil rights lawsuits are challenging unconstitutional court debt practices

"The Plaintiffs in this case are each impoverished people who were jailed by the City of Ferguson because they were unable to pay a debt owed to the City from traffic tickets or other minor offenses."

Legal challenges. Civil rights organizations like the ACLU, ArchCity Defenders, and Civil Rights Corps have filed numerous lawsuits challenging wealth-based detention and aggressive fine collection practices.

Key arguments:

• Jailing people for inability to pay violates due process and equal protection
• Excessive fines and fees violate the Eighth Amendment
• Driver's license suspensions for unpaid fines are unconstitutional

Landmark cases:

• Jennings, Missouri settlement: $4.7 million payout and cancellation of outstanding debt
• Timbs v. Indiana: U.S. Supreme Court ruling applying Eighth Amendment excessive fines clause to states

10. Legislative reforms are needed to end the criminalization of poverty

"There is no statute or rule that permits a circuit court after it has imposed and executed a jail sentence to require the person who has served the jail sentence to appear in court for 'payment review hearings' in an attempt to collect the county sheriff's bill for the costs of the jail sentence."

Comprehensive approach. While court rulings are important, lasting change requires legislative action to:

• Eliminate jail time for unpaid fines and fees
• Require ability-to-pay hearings before imposing fines
• End driver's license suspensions for unpaid court debt
• Regulate or eliminate private probation companies
• Provide alternative funding sources for courts and local governments

State-level reforms. Several states have passed reforms addressing aspects of the problem:

• Missouri: Prohibiting jailing people for unpaid board bills
• California: Eliminating many administrative fees in the criminal justice system
• New York: Restricting the use of cash bail

Federal action. Proposed legislation like the Driving for Opportunity Act aims to incentivize states to end driver's license suspensions for unpaid fines and fees.

Ongoing challenges. Reform efforts face resistance from entrenched interests and concerns about budget impacts. Sustained advocacy and education are needed to build political will for comprehensive change.

Last updated: July 25, 2024