Debtor’s prisons have long been outlawed in America, right? Well, yes. But that doesn’t mean U.S. courts aren’t locking people up just for being poor. According to a VERA report on the misuse of jails, the crime rate is going down, yet American courts are throwing people in jail in greater numbers. Those who have not been convicted of anything may be too poor to pay even a minimal bail amount. However, defendants can also be locked up because they can’t afford to pay fines and court fees associated with an incredibly minor offense.
Kevin Thompson, a Georgia teenager, was jailed for five days in December 2014 because he could not afford to pay $838 in court-ordered fines and related fees as a result of a traffic ticket. Thompson, like many defendants, was put on probation with a for-profit company called Judicial Correction Services (JCS), which gave him 30 days to come up with the money he owed the court, plus fees JCS charged him for its services.
According to an NPR survey, courts in many states hit defendants and offenders with all kinds of charges, such as electronic monitoring, probation or supervision, public defender or legal costs, and room and board. That’s right, people in jail can be charged room and board for their stay, with some jails even offering “premium” cells for an additional fee.
At the end of his 30 days, Thompson was unable to pay in full and JCS then misled him regarding his right to legal counsel. JCS told him he had to pay $150 for a public defender, which should have been provided free of charge. Thompson subsequently went to court without legal representation and was sent to jail with a nine-day sentence.
In March 2015, the ACLU, the ACLU of Georgia, and the Southern Center for Human Rights settled a federal lawsuit filed on behalf of Thompson, which can be seen as a notable victory for indigent defendants. DeKalb County agreed to make specific changes to prevent others from being improperly jailed just for being poor and promised to look out for the rights of the indigent.
Still, how do stories like this happen in the first place?
According to the ACLU, “Imprisoning someone because she cannot afford to pay court-imposed fines or fees violates the Fourteenth Amendment promises of due process and equal protection under the law.” Outlawing debtor’s prisons goes back to the 19th century, and it was reaffirmed again and again, most recently by the 1983 Supreme Court case Bearden v. Georgia.
The problem with this case, according an article from The Marshall Project, is that it says a judge can still jail defendants who can pay, but are willfully refusing to do so, yet the language fails to define “indigent” as well as “willfully.”
The lack of clarity in the case, unfortunately, is allowing an illegal and immoral practice to fester. When a poor defendant is asked to choose to either pay or stay, there is no choice to make. This person, convicted or not, will stay in jail. Thus, the indigent face harsher punishments, even those who have only been accused of a crime.
An ACLU report from 2010 titled “In For a Penny,” outlines numerous glaring problems with locking up those who can’t pay. Debtor’s prisons do damage to citizens, local and state economies, and the criminal justice system. Racial and ethnic minorities are disproportionately affected, as they are at every level of our criminal justice system.
Finally, it creates a “two-tiered system of justice.” In some states and counties, poor defendants perversely end up owing vastly more than those who can pay upfront, on top of monthly fees to probation companies. Every state is different. In Washington state, for example, all unpaid legal debts are subject to 12% interest.
NPR compiled several stories from people who had experiences like Thompson’s, from a man who was sent to jail over catching a fish out of season, to another who shoplifted a can of beer and was sentenced to a year in jail. Unfortunately, there are many more horror stories out there. Thompson’s case and the many others like it get to the heart of why this practice is completely indefensible: being poor is not a crime.