Cash-strapped and incarcerated: The modern debtor’s prison
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Earlier this year Robin Clearey of Houston appeared before Magistrate Joe Licata on a misdemeanor charge for driving with an invalid license and Mr. Licata told her she would continue to be arrested on this charge if she did not pay the $3,500 fine.

Clearey told the judge it is “nothing to me.” Nothing, because she is always in and out of jail for such charges, and Licata responded by saying it is “nothing to me – job security.” 

The exchange, which was released as a part of a November 2016 report which also contained video of similar proceedings, did not reflect well on either of them, but it is only Licata who represents the government and therefore all of us. In such moments of candor, truth is often revealed. Indeed, some 10 million Americans owe more than $50 billion in criminal justice debt. 

With countless people being jailed simply because they cannot afford to pay fines and fees, there is a growing need to overhaul current policy and practice to ensure the financial obligations imposed by the criminal justice system are proportionate.

Earlier this year, the nation’s leading organization of conservative state legislators, the American Legislative Exchange Council (ALEC), agreed and passed a resolution calling for these financial penalties to be reined in with incarceration only being used as a last resort after repeated efforts to collect in circumstances when the person is able to pay.

Unfortunately, this is too often not the case today. In fact, a November 2016 report by the Massachusetts State Senate Committee on Post Audit and Oversight found in just three counties more than 100 troubling examples, including a man who owed more than $1,000 in fines from an old drug case and was jailed for 36 days despite lacking the funds to pay, even having slept in a homeless shelter the night before his court appearance.

Indeed, research has found 20 percent of those in local jails are incarcerated because of failure to pay a fee or fine, which can make it even harder for the person to obtain employment and add to the burden on taxpayers.

Moreover, excessive reliance on overly punitive fines and fees can encourage law enforcement and corrections decisions to be made on grounds other than public safety while undermining public confidence in the integrity of the criminal justice system.

When Clearey was before the court, the question of whether she was unsafe to drive was not even considered, but rather the sole question was whether she could come up with $3,500.

Reforms must begin with prioritizing restitution, so the first dollars collected from offenders with an individual victim actually go to that victim, not the government.

Next, while it is reasonable to ask individuals with the means to do so defray part of the cost of processing their case through court costs and probation fees, someone’s ability to pay should never affect the disposition of their case, such as determining whether they receive probation or diversion to a treatment program. 

Also, probationers without funds should no longer be subject to revocation to prison for failure to pay. In a free-market society, we rightly embrace the fact that the wealthy can afford fancier clothes, but justice cannot be for sale.

Additionally, fines should be reduced, like the excessive maximum fine of $10,000 in Texas for possession of less than a gram of drugs. 

If a person is an addict or mentally ill, which is the case in a significant share of street crime cases, research suggest fines will do little or nothing to deter future offending. When statutes allow for fines, they should also instruct the judge to take into account whether an assessment of the offender and the facts of the case indicate a financial penalty would be a meaningful deterrent, a person’s ability to pay, and the extent to which a fine would make their rehabilitation less likely to be successful.

Imposing incarceration for failure to meet financial obligations that a person cannot afford creates a disincentive for following the law-abiding path, making the black market lifestyle of drug dealing, theft and prostitution more attractive.

Instead, we should turn perverse incentives into positive ones. 

For example, those who successfully complete a treatment program and stay crime-free could have certain fees waived. Furthermore, people who are never convicted or exonerated should receive a refund on all court costs and fees, which virtually no jurisdiction provides.

In short, it is time to overhaul policies to prioritize public safety, the interests of victims, and basic fairness, rather than revenue generation for government.

Levin is the director of Center for Effective Justice at Texas Public Policy Foundation and the policy director at Right on Crime. Follow him on Twitter @MarcALevin


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