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In New Orleans, for example, the court's aggressiveness to collect fees stems from the important part those fees play in their operational budget but the money to pay Sheriffs to house men and women who cannot pay those debts are borne by the city, not the courts, he said. One Ohio town with a population of 60 collected more than $400,000 in one year of fees or officially, legal financial obligations, from the mayor's court.
Two of the cases uncovered by the ACLU's investigation were:
•A homeless construction worker in Louisiana named Sean Matthews was convicted of marijuana in 2007 and assessed $498 in fines and costs. After being arrested two years later for failure to pay the fines, he was sent to jail for five months, but it cost the City of New Orleans more than $3,000.
•Kawana Young, a single mother of two in Michigan, was arrested in March and spent three days in jail for failing to pay $300 in fees surrounding minor traffic offenses. Recently laid off and unable to find work, she incurred booking fees for her daily room and board.
According to Atty. Balaban, there are certain fines that undoubtedly disproportionately affect people of color. “African Americans make up 12 percent of the population. As of 2007 they made up approximately 38 percent of the incarcerated population and there are specific fines and fees that only people who are in prison and jail have to pay,” he said.
Those fees include fees for the booking and intake process, and so-called pay-to-stay fees for each day entities house an inmate. “Given that African Americans and people of color are disproportionately represented in our nations' prisons and jails, those particular fines and fees disproportionately affect them,” Atty. Balaban said.
Although the ACLU sought statistics that indicated by race the number of men, women, and children who were incarcerated due to unpaid legal debts, none of the jurisdictions could provide the information, saying they did not keep those figures, especially by race, except Washington State, he said.
Washington State looked at the issue after the Washington State Supreme Court commissioned a study looking at racial disparities in the imposition of fines and fees for people who had been convicted of felonies. He said it found that Hispanics were likely to receive much higher fees than their White counterparts. People convicted of drug offenses were likely to receive higher fees than people convicted of violent offenses, and people of color were more likely to be searched, charged, arrested, criminally prosecuted, and convicted of drug offenses in Washington State and throughout the country than people who are White.
“But certainly, the courts have found this and it's not surprising to say that racial disparities exist at every stage of the criminal justice process, not just in our prisons and jails,” said Atty. Balaban.
Atty. Balaban told The Final Call that the ACLU first learned of the problem in 2009 through Edwina Nowlin, who contacted them after she was jailed in Michigan for not paying court-ordered monthly lodging fees charged by the detention facility that was holding her juvenile son. She was homeless and working part-time at the time she was ordered to make the payments, Atty. Balaban said.
The ACLU in Michigan filed an emergency motion on her behalf and she was eventually released. After her release, the organization's National Prison Project and Racial Justice Program conducted a survey to find out just how widespread her experience was.
Their survey focused on geographically diverse states, states that had larger urban populations than others where the problem seemed to be confined to more rural areas, and states where the problems they had heard about was emblematic of the problems across the country.
“We haven't heard from Congress or received any feed back as of yet but we're very hopeful that Congress will hold oversight hearings on this,” Atty. Balaban said. The ACLU has made specific recommendations to state and local officials to ensure that: defendants are not incarcerated because they cannot pay fines and fees that they can't afford and that courts consider their ability to pay when deciding whether to assess more fees.
The study further recommended that states should repeal all laws that may result in poor defendants being punished more severely than defendants charged with the same offenses who have means.
Geri Silva, executive director of Families to Amend California's Three Strikes Law, said the back story is that constitutionally, everybody is guaranteed a right to counsel, whether they can pay or not, so it is clear from the beginning that people are not going to be able to pay.
She said the irony is that states are jailing people in “cash-strapped” cities for failing to pay their legal fines, but turn around and pay triple or quadruple that amount to put people in jail. “It sort of leads one to believe that perhaps jails and prisons are money making enterprises for the states. All roads lead to prison and all thinking leads to the fact that if they're filling these prisons, it's not about public safety obviously but it has to have something to do with financial gain for the industry itself,” Ms. Silva said.
She reiterated “In For a Penny's” position that men and women who are re-entering into society from prison already face tough obstacles. They have to try to rebuild their lives with reduced or no incomes, worsening credit ratings, poor housing prospects, and greater chances of recidivism.
“How far will they go? Who are they trying to kid with this? How do you get blood out of a turnip? How does somebody who can't pay, pay? Will they then find the one person who had their nails done or something instead of paying? Is that what they're going to do to justify this insanity,” Ms. Silva asked.
According to Ms. Silva, all of these issues that hang over a poor person who has been incarcerated stems from America's building an industry that is skewed, sinister, uncivilized, and centered on punishment. Ask taxpayers if they would rather pay $600 in legal fees or thousands in jail costs and they would pick the more sensible route of less costs, she said.
“The industry itself is tremendous. Can you imagine what it takes to run, say, California State Prisons in terms of food services, clothing, armaments, initially the building trades? It's a multi-billion dollar industry that a great number of people are getting fat off of so it's so disingenuous for them to say they're losing money because people aren't paying their fees,” Ms. Silva added.
Critical Resistance is a prison advocacy group based in Oakland, California that works with people who are incarcerated and re-entering society. Isaac Ontiveros, communications director, said that the ACLU's report unveiled yet another example of the way that the Prison Industrial Complex works to imprison and police people, and how it creates, exacerbates, and thrives on debt and creating debt traps.
People spend a number of years in prisons or jails and the first thing they come out to is an enormous pile of debt, and that affects their inability to gain access to resources around re-entry support, Mr. Ontiveros told The Final Call.
“We're talking basic things like transportation vouchers, housing, job opportunities, they end up being left with a pile of debt and we see how that debt just lands them back in a cage ... The thing to look at is who's being policed, imprisoned, thrown in jail around these tiny infractions and if we look at what communities people are coming out of I don't have to guess that it is poor people, people of color, and that the state, local government puts a premium on policing people of color,” he added.
He said the whole idea is around social control and who is desirable and who is not. One solution is to prioritize resources to create programs that build up communities. The pressure for those resources will come from the ground, grassroots mobilizing, not from politicians on local, state, or national levels.
“It's going to come from people from the community, organizing their community, and either building these things themselves, or putting pressure on politicians to make a demand for resources to be used for things that have shown time and time again to build up communities,” he added.
According to Kurt Kaaekuahiwi, an intern with Critical Resistance, the definite intent of debtors' prisons is to keep people within the system, but resources should be put into educational or job training programs within prisons to help those men and women re-entering secure jobs once they are released.
“We have to divest from policing, divest from incarceration, and divest from prison expansion. Obviously, these monies that are being appropriated are through the general fund, which is from our tax dollars, and being used to further criminalize, stigmatize, and keep us trapped in the system, but that money is not used to support our needs of affordable housing or job opportunities,” he said.
(The full report: “In for a Penny: The Rise of America's New Debtors' Prisons,” can be read at www.aclu.org/prisoners-rights-racial-justice/penny-rise-americas-new-debtors-prisons)
