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Dec 20 2013

Another State Allows Debtors’ Prisons

The ACLU is reporting that many cities in Colorado have joined several other states in putting people in jail if they can’t afford to pay the fines imposed on them as a condition of parole or probation, a perfect way to make sure that they can never move on after paying their debt to society.

Several Colorado cities are routinely sending individuals to jail for failure to pay fines and fees, according to an American Civil Liberties review. The U.S. Supreme Court has held that jailing someone because they cannot afford to pay a fine is unconstitutional. But these cities make these determinations for hundreds of individuals without any determination of ability to pay, according to the ACLU.

The ACLU findings are the latest to find that so-called “debtors’ prisons” are seeing a revival in many jurisdictions, in spite of the state and constitutional law that forbids them. In April, another ACLU investigation found similar breaches of constitutional law in Ohio. In Georgia and Alabama, these systems have been fueled in part by private probation firms that profit from holding criminal penalties over the heads of those who can’t afford to pay traffic fines. CBS News has estimated that jurisdictions in more than a dozen states may be reviving the once-reviled practice.

The ACLU’s recent analysis doesn’t mention private probation. But at least some countiesutilize the practice, including Jefferson County, which the ACLU found imprisoned at least 154 people for failure to pay during a five-month period.

This imprisonment not only violates the law; it also costs money. Jefferson County, for example, holds individuals one day per $50 owed, while the daily cost of holding those individuals is $70. In sum, the total loss to the taxpayer for days served in Jefferson County was $110,000 during just those five months, according to the ACLU. The ACLU found similar financial losses in Ohio counties. That does not factor in the cost of lost wages, jobs, or other major sacrifices to those individuals whose lives were upended by jail time.

This kind of thing is absolute madness. Someone breaks the law, they go to prison and serve their sentence, but when they get out they find that they owe the county or state thousands of dollars, sometimes more, in fees and penalties stemming from their incarceration or as a condition of their parole. If you were to design a system to maintain a permanent criminal underclass, you could hardly do any better than that.

16 comments

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  1. 1
    Gregory in Seattle

    This is a logical (sic) effect of the for-profit prison system: if you are making money by keeping people in prison, you do whatever you can to guarantee full prisons.

  2. 2
    Thumper: Who Presents Boxes Which Are Not Opened

    Someone breaks the law, they go to prison and serve their sentence, but when they get out they find that they owe the county or state thousands of dollars…

    Hang on, I’m confused… this seems to imply that some states in America force you to pay the cost of your own imprisonment. Have I read that right?

  3. 3
    Ben P

    I have to say something because the way this story is written leads to a lot of inferences that just aren’t true.

    The difference between constitutional and unconstitutional here is a hairline. The Supreme Court’s Ruling in Bearden vs Georgia is:

    If a State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it…If the probationer has willfully refused to pay the fine or restitution when he has the resources to pay or has failed to make sufficient bona fide efforts to seek employment or borrow money to pay, the State is justified in using imprisonment as a sanction to enforce collection. But if the probationer has made all reasonable bona fide efforts to pay the fine and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the probationer are available to meet the State’s interest in punishment and deterrence.

    It is correct, in a strict sense to say this prohibits “debtors prisons.” You cannot be put in prison SOLELY because you lack the resources to pay a fine.

    This is NOT a flat prohibition on putting people in prison for failure to pay fines. It merely requires the court to make a factual determination that the defendant is not making a bona fide effort to pay the fine.

    Rather, this leads to a process that happens in every single criminal court every day all around the country. The judge finds defendant guilty and orders to pay a fine of $500. Defendant says “I can’t afford $500.” The judge or the prosecutor will say “can you afford $25 a week?” Defendant says yes. Defendant then signs a payment plan on his fine agreeing as part of his probation that he’ll pay $25 week

    If it comes up on a petition to revoke his probation, the defendant will get questioned. Did he make his payments? if he didn’t why not? He’s unemployed? “why?” “has he looked for work?” Does he have any assets that could be used to pay the fine?

    It’s only an unconstitutional violation if the court doesn’t go through this process, and even a pretty brief process satisfies the constitution.

    Setting aside that, virtually every jurisdiction in the country also allows people to stay in jail to resolve their fines. Usually it’s $50 or $100 in fines forgiven per day in jail. Typically this is “voluntary” in the sense that the Defendant has to agree to choose this option. He could agree to go through the process of a payment plan, but that is something many people don’t want to do, so they’ll spend a week in jail to take care of their fines.

    I didn’t necessarily like being a prosecutor because I don’t have a mindset of punishment. I tended to be soft on people, but at the end of the day, the arguement that “peoples lives are upended by criminal proceedings” is not terribly persuasive, because these people committed crimes. There’s certainly an argument that many crimes are over-punished, but that’s not quite the same as saying we should simply waive punishment because the defendant claims it is a hardship.

  4. 4
    Ben P

    Hang on, I’m confused… this seems to imply that some states in America force you to pay the cost of your own imprisonment. Have I read that right?

    That is quite rare, but I have heard of it occuring. Rather, this is likely a comination of several factors.

    Say Defendant is convicted of a serious misdemeanor, say, theft of property. He pleads guilty.

    His sentance is a very short stay in jail, say 5-10 days with a much longer jail sentance suspended. Say six months. This means he’ll be released after 10 days on probation, and if he violates his probation he’ll go back for the whole six months.

    He’ll also be fined $1000 and ordered to pay restitution for the property he stole, this will be part of the conditions of his probation. SO if he doesn’t pay the fine he risks violating his probation and going back to jail.

    Most jurisdictions assess court costs and a probation fee. So he’ll owe maybe $150 in court costs, and $20 a week as part his his probation fee.

    As I described above, all this will likely be rolled into a payment plan after a short judicial determination of what he can pay.

    End result: yes, he gets out of jail and fins that he’s now legally obligated to pay say, $50 a week for the next six months, and will likely end up in jail if he misses those payments.

  5. 5
    Gregory in Seattle

    @Thumper #2 –

    Hang on, I’m confused… this seems to imply that some states in America force you to pay the cost of your own imprisonment. Have I read that right?

    Basically, yes. Many prisons, especially private for-profit prisons, operate as workhouses: inmates are put to work, either with a prison-run business such as a farm or making license plates, and get paid minimum wage. Most of those wages are then withheld to offset incarceration costs. Work is a privilege, and prisoners who break the rules will find themselves temporarily suspended. This does not absolve them of having to pay for their upkeep, so the prison will “graciously” loan them the money… for a fee, and at usurious interest rates, with the accumulated amount due soon after release. Or else.

  6. 6
    Abdul Alhazred

    It’s not “debtor’s prison”.

    It’s straight up “holding for ransom”.

  7. 7
    D. C. Sessions

    If you were to design a system to maintain a permanent criminal underclass, you could hardly do any better than that.

    Well, that’s the idea anyway. However, it’s a long way from being an efficient way of doing the job.

  8. 8
    Ben P

    Well, that’s the idea anyway. However, it’s a long way from being an efficient way of doing the job.

    I honestly don’t think that’s the case at all, even if I accept it as true that that’s the actual effect.

    The reasons these things exist is to pay for the system that people demand. The American Public, when it enacts laws, votes for district attorneys and judges, and voices its opinion on criminal proceedings is vicious and focused on revenge. There is always far more public outrage at the perception of a criminal “getting away with it” than an is claim that the system itself is causing public harm.

    The system to enforce all these criminal laws is expensive, and there’s a mismatch between the tax dollars that the public is willing to appropriate to fund the system and the levels of enforcement and punishment the public demands from the system. The money to fund this system at the level the public mandates but doesn’t wnat to pay for has to come from somewhere.

    This “mismatch” is usually made up through fees collected by the Court system. Filing fees, probation fees, public defender fees, fine payments, and other sources of revenue.

  9. 9
    Modusoperandi

    Look, it’s a small price to pay to keep The Public safe from people who aren’t dangerous.

  10. 10
    democommie

    I tend to disagree with Ben P. reflexively (because I’m right and he’s well, WRONG!!!! /s) but on this issue it is, I think, closer to what he’s talking about, at least where fines and restitution are concerned. If people are being charged for their own incarceration, particularly for non-violent crimes, there is a grievous miscarriage of justice being perpetrated.

    When I travel to foreign countries I think I like “The American Plan” better than the “Continental Breakfast”; if I have to go to jail I prefer the Scandinavian plan.

    I just wish, with all my black, withered little heart, that Shurf Joe Arrrrrghpiehole would get to someday spend a few years in one of his own cells.

  11. 11
    steve84

    Gotta keep those private prisons filled. Run by companies who then pour money into judicial elections. This is what happens when judges, prosecutors and law enforcement are all elected.

  12. 12
    elpayaso

    sorry, Demo, but Ben summarized it exactly right. i’ve been practicing crim defense for 30 years in that hotbed of due process and reasonableness called Texas, and that’s exactly how it works in most courts in most jurisdictions.

    inability to pay is made into what’s known as an “arffirmative defense”, where the defendant has the burden to raise the issue before the court, present evidence to support it, and convince the trier of fact by a preponderance of the evidence that he really can’t pay. actually, very similar to raising a similar defense to being jailed for failure to pay child support. you can guess how much of an inquiry most judges do and how often the defendant prevails……

    Ben is also dead on about the public psychology that underlies such rules. just look at how many of the Good Folk think that anal rape is part of “those criminals’”* just desserts.

    *few appear to comprehend the old concept of “we have met the Enemy, and he is us”

  13. 13
    elpayaso

    and, while i rarely see it imposed on our clients since they’re all beyond indigent (pub defender clients on the Mexican border), every single presentence report i see lists the costs of incarceration (just under $30K/yr in the fed system) and a note that the court may want to seek some sort of restitution for the cost.

  14. 14
    Conservative Newswire

    Also, in Ohio you are required to work 40 hrs a week or go to jail for probation violation. Which really helps you find a job. And it’s not like they provide any vocational or job-finding training. They don’t even give people a list of places to get help finding employment.

  15. 15
    democommie

    @12:

    I’m not sure which part of my diatribe you’re disagreeing with. You did see the “/s”?

    Charging people for throwing them in the pokey is morally bankrupt.

  16. 16
    ericbragg

    Hey gotta find a way to keep those cells full now that they cant fill them up with weed smokers.

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