Imprisoned For Being Too Poor to Pay a Fine?

By George Lavender for In These Times. 

Debtors' prisons were formally abolished in the United States in 1833. Before then if a defendant couldn't pay their court fees or fines, that is where they would end up. A century and a half later, in Bearden v Georgia, the Supreme Court ruled that judges cannot send people to prison for failure to pay fines without finding out their ability to pay.

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. Williams v. Illinois, 399 U. S. 235; Tate v. Short, 401 U. S. 395. 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. Continue reading...

That case came on top of an earlier Supreme Court decision which established that extending someone's prison term because they are unable to pay a fine violates their Fourteenth Amendment rights. How to determine whether someone “willfully refused” to pay, has proven difficult. As a year-long NPR investigation found, defendants who are unable to pay are doing time. 

In Benton County, Wash., for example, jail records obtained by NPR and sampled over a four-month period in 2013 show that on a typical day, a quarter of the people who were in jail for misdemeanor offenses were there because they had failed to pay their court fines and fees.

Judges say it's difficult to determine who can and cannot afford to pay their fines and fees. Often a probation officer or a court official will make a recommendation based on an interview with the defendant or based on a questionnaire.

Some judges will tell an offender to give up their phone service, or quit smoking cigarettes — and use the money instead to pay court debt.

Some judges will tell people to get the money from family members or to use Temporary Aid to Needy Family checks, Social Security disability income, veterans' benefits or other welfare checks to pay their court fees first — or else face going to jail.

And some defendants simply ignore the court and refuse to make any payment.

Judge Robert Swisher, a Superior Court judge in Benton County, says he'll make judgments based on how people present themselves in court.

"They come in wearing expensive jackets," he says referring to defendants who wear NFL football team jackets, "or maybe a thousand dollars' worth of tattoos on their arms. And they say, 'I'm just living on handouts.' "

If the jacket or tattoos were a gift, he tells the defendants they should have asked the giver for the cash to pay their court fees instead. Continue reading...

As both the NPR report and Brave New Films video show, the original cost of the fine is often not the hardest part of paying it back. A driving ticket, or even a fine for catching a fish out of season, can quickly add up with additional court fees and other costs.

The Nation has also reported on the business of jailing people for failing to pay fines and the private probation companies involved. Among the largest companies is Judicial Correction Services (JCS) contracted to carry out bill collection in several states including Alabama.

In the face of strained budgets and cuts to public services, state and local governments have been stepping up their efforts to ensure that the criminal justice system pays for itself. They have increased fines and court costs, intensified law enforcement efforts, and passed so-called pay-to-stay laws that charge offenders daily jail fees. They have also begun contracting with “offender-funded” probation companies like JCS, which offer a particularly attractive solution: collection, at no cost to the court.

Harpersville’s experiment with private probation began nearly ten years ago. In Alabama, people know Harpersville best as a speed trap, a stretch of country highway where the speed limit changes six times in roughly as many miles. Indeed, traffic fines are by far the biggest business in the town of 1,600, where there is little more than Big Man’s BBQ, the Sudden Impact Collision Center and a dollar store. In 2005, the court’s revenue was nearly three times the amount that the town received from a sales tax, Harpersville’s second-largest source of income. The fines had become key to Harpersville’s development, but it proved difficult to chase down those who did not pay. So, that year, Harpersville decided to follow in the footsteps of other Alabama cities and hire JCS to help collect.

JCS is considered a significant player in the private probation universe. Founded in Georgia in 2001 by a group of locals with backgrounds in law enforcement and the finance industry, the company has since expanded its operations to Florida, Mississippi and Alabama. Business has been good: between 2006 and 2009, JCS more than doubled its revenue, to $13.6 million, according to a profile in Inc. magazine. And while recent revenue statements for the privately held company aren’t available, what is known is that JCS operates in some 480 courts across the country. In larger courts, JCS can net as much as $1 million in probationers’ fees each year, according to an estimate by Human Rights Watch.

To keep business booming, JCS representatives crisscross the South promoting the company as a free and effective “supervision services” program (“Helping municipal court clerks kick their heels up in joy,” the company promises in one magazine ad). And yet, if private probation has seemed like a solution for struggling Southern cities, it has been a disaster for the many poor residents increasingly trapped in a criminal justice system that demands money they do not have, then punishes them for failing to pay. Continue reading

Founded in 2011 by former law enforcement officers, JCS boasts that “supervision is completely offender-funded. This means your tax dollars are not going to support the probation office.” But the company has faced more than one lawsuit, most recently where it was accused of imposing illegal fines. AL.com reports from the town. 

Childersburg and JCS don't have protections to determine whether a defendant is indigent, to provide a notice or attorney to represent them before their probation is revoked, the lawsuit states. "Despite the lack of authority to do so, JSC at its discretion uses threats of revoking probation, increased fines and cost for purposes of collection," the lawsuit states.