Renewed interest in reforming America’s complicated and controversial approach to bail has broadened over the past few years. A New Jersey law, which took effect on the first day of 2017, has almost completely eliminated the use of cash bail in the state, inspiring the wrath of the bail industry over the summer. Though reform legislation to largely do away with cash bail in California was temporarily stalled in the state assembly at the end of August, it will be reintroduced next year with the input and support of the state’s influential governor, Jerry Brown. Meanwhile, local bail reformers across the country have taken actions on their own to lessen the blows bail imposes on vulnerable defendants. Bail funds have emerged in cities, including Boston, New York (Brooklyn), Nashville, and Seattle.
At the end of July, two senators teamed up to announce a new federal legislative endeavor to address bail. Senator Kamala Harris and Senator Rand Paul wrote an opinion editorial for the New York Times announcing the Pretrial Integrity and Safety Act as a means of repairing America’s bail practices. Harris’ leadership in federal reform mirrors a shift in Democrats’ engagement in criminal justice reform toward more active and progressive involvement in dismantling its pervasive disparities, made all the more urgent in the age of Black Lives Matter. For Paul, who on some issues is to the right of his party, criminal justice reform represents an opportunity to marry his libertarianism with the conservative zeal for cutting the expenses associated with mass incarceration. The two are an unusual team bound by an increasingly unusual focal point of bipartisan convergence.
By strategically distributing grant money from the Department of Justice, the legislation takes the first steps toward undermining the supremacy of cash in bail. It actively incentivizes states to implement more innovative and individualized strategies in order to reduce the role bail practices have played in making the United States the prison capital of the world. Every day, 450,000 Americans sit in jails because they cannot afford bail.
Despite the implementation of reforms made in the past few decades to more tightly control bail practices, challenges have continued to abound. Judges have wide latitude in determining bail amounts and often do so without taking into account a defendant’s criminal history, or critically, finances. Indeed, as the bail amount requested by courts has grown, so has the level of financial strain it places on defendants. The 75 largest counties in the country witnessed a 43 percent increase in the constant dollar values in bail set in felony cases between 1992 and 2009. In 2009, the median bail amount was $25,000. A national survey observed that 47 percent of respondents either could not make a $400 emergency payment on their own or could only do so by selling or borrowing.
The result of disconnect between the amount requested and the ability to pay has been the bifurcation of the justice system: one that serves the wealthy and one that entraps the poor. Overwhelmingly, the burdens of bail fall on poor Americans and Americans of color. Previous studies have shown that courts are more likely to perceive black and Latino defendants as flight risks or public threats and thus are more likely to face higher bail amounts or mandatory pre-trial detention. As senators Harris and Paul cite, black and Latino men pay 35 percent and 19 percent higher bail than white men, respectively. Given that black and Latino defendants are disproportionately represented among the poor, they are less likely to be able to afford such payments.
Strains on families and support systems and personal emotional endurance often compel defendants to take a guilty plea even if they are innocent. This thought process has some degree of logic; ultimately, jailed defendants are more likely to be convicted and sentenced to jail or prison and for longer periods of time. This is presumably due in no small part to the fact that being jailed makes it more difficult for defendants to meet with their legal representation.
These outcomes seem especially sinister considering that there are ways to eliminate the burdens of excessive bail amounts. New Jersey and Kentucky, for example, currently conduct personalized risk assessments in determining an appropriate bail amount. Courts can even impose non-financial alternatives to bail: Six states have passed legislation to establish or expand their use of such alternatives, including monthly phone calls, drug testing, and electronic monitoring.
As of 2014, pre-trial detention has accounted for 95 percent of the increase in the national prison population since 2000, making the bail reform efforts of Harris and Paul all the more pressing.
However, bail is far from the only money-based driver of mass incarceration that has burdened those who can least afford it. Interactions between poor offenders and the criminal justice system can conclude in a cascade of insurmountable debt and eventual incarceration in a de facto debtors’ prison.
When a $2 Can of Beer Yields $1,000 of Debt
In 1811, the personal memoirs of a man who identified himself only as Howard were published. Howard had spent the last 16 years of his life languishing in a prison in New York. He was not imprisoned for murder, theft, vandalism, or any other crime, but for falling into debt and lacking the financial assets or the connections necessary to keeps his creditors from collecting.
Howard pleaded with his usurers to work with him to forgive his debts, to no avail. If anyone has delusions about our “land of liberty,” Howard advised grimly, “let him visit a debtors’ prison.”
More than 200 years later, little has changed.
In April 2012, Tom Barrett entered a convenience store in Georgia. Caught stealing a $2 can of beer, he left in handcuffs. Barrett was subsequently fined $200 and sentenced to a year of probation under the supervision of Sentinel Offender Services, a private probation company.
Barrett was at the company’s mercy. He spent over a month in jail because he couldn’t satisfy the $80 “startup fee” required by Sentinel, which many private companies force their charges to pay at the outset of their probation.
After Barrett was freed, he sold his own blood plasma to cover his debts. It still wasn’t enough. The $300 he made selling plasma each month fell short of the $360 necessary to cover his Sentinel monitoring fees, even as he frequently went without meals or household necessities.
By February 2013, Barrett still found himself more than $1,000 in debt to Sentinel. Forced by the company to appear in court, Barrett tried to explain that his precarious financial situation prevented him from satisfying his debts—which by then amounted to over five times what he originally owed—but his pleas fell on deaf ears.
So, he went back to jail—in effect, to a debtors’ prison.
Profit, Privatization and Poverty
Congress formally abolished debtors’ prisons in 1833. Three Supreme Court decisions in the 20th century reaffirmed the unconstitutionality of imprisoning individuals for debt. But changes over the last few decades have led to the resurrection of debtors’ prisons, having made the transition from their origins to de facto embodiments.
Like bail, the rise of modern-day debtors’ prisons has coincided with the growth of mass incarceration. The justice system began to incarcerate more people for lower-level offenses in the 1970s and ’80s, essentially changing its definition of what represented an offense that was worthy of imprisonment. This gave way to the rise of incarceration stemming from tickets for misdemeanor “crimes” like driving with expired registration, speeding and even having “sagging pants.” Sometimes, those unable to pay are jailed immediately. Usually, however, those who fail to pay cannot pay and have warrants issued for their arrest, initiating a feedback loop that inevitably leads to more payments and more stints in jail.
Karin Martin of John Jay College argued that the relationship between the imposition of such criminal justice debt, or fines, fees, and restitution, and incarceration became increasingly codified in statutes at the state and county level in the late 1980s and early ’90s.
The problem was accelerated by the Great Recession. The economic collapse of the late 2000s profoundly changed the landscape of the criminal justice system, hastening an increase in criminal justice debt as a way to cover lost revenue from taxes. Under the guise of purporting to save taxpayer money, this arrangement has similarly bred an “offender-funded” model of justice in which offenders are forced to cover the costs of their probation, parole, drug rehabilitation, and electronic monitoring, as Tom Barrett was. These costs are levied on top of the debt stemming from the crime itself, thus constituting a form of criminal justice debt in their own right, and can be higher in amount as well.
In 2014, an NPR investigation found that at least 41 states make it possible for inmates to be charged for their accommodations while they are imprisoned, called “pay-to-stay.” Under this arrangement, defendants pay for their stay in jail and even toilet paper, clothing and medical care. That same inquiry found that defendants can be billed for a public defender in at least 43 states. An inability to pay this criminal justice debt can lead to prison time even if time has already been served.
Some of the most egregious instances of this “offender-funded” trend have been documented in Florida, New York and North Carolina, though perhaps the most notorious recent example can be found in Ferguson, Missouri. Officials there used criminal justice debt to cover 20 percent of the city’s budget—a practice that incentivized police officers to harass, ticket and arrest the city’s predominantly poor, African-American population. That sort of abuse had poisoned relations between the community and law enforcement well before the shooting of Michael Brown.
Increased reliance on the criminal justice system for revenue has led to a growing collusion between government and industry in a legal system that has progressively come to emphasize profit accumulation over justice. The result has been the privatization of once state-sponsored functions, especially probation.
“Pay-only” probation is a particularly pernicious form of probation and a particularly toxic form of criminal justice debt. It applies to those who would not be on probation in the first place were it not for their inability to pay. Compared to other forms of probation, the terms of pay-only probation are simple enough: pay on time. Yet for so many Americans in communities where this scheme is most popular, namely impoverished communities suffering from high rates of unemployment, this imperative is not so simple. Thousands (a conservative estimate) of arrest warrants are released for those who do not keep up with their payments. Probation officers in these cases, whose sole job is to supervise offenders (a job for which they collect monthly fees that can themselves be punitive for poor offenders), dangle the threat of arrest and incarceration over those teetering on the edge of non-payment.
Those who cannot pay their debts all at once are often put on long-term payment plans. Poor offenders, who can only afford to pay their debts in small installments, stay on probation for longer periods of time. Fees accumulate over time, meaning that poor offenders pay more than wealthy ones.
Meanwhile, private jailers and probationers are making out like bandits, especially in Barrett’s home state of Georgia, which uses private entities to keep track of 80 percent of its probation operations. Georgia is hardly the only state to make use of private industry: As of 2015, the ACLU reported that 13 states use private companies to oversee their probation operations. Of the $98.6 million private probation companies collected from probationers in 2012, Human Rights Watch estimates that they earned almost $40 million from Georgia alone. One private probation company, Judicial Correction Services, makes $1 million off probationers sentenced by just the DeKalb County Recorder’s Court every year.
In 1983, the Supreme Court held in Bearden v. Georgiathat local courts must consider when defendants have not paid their debts because their limited financial means prevent them from doing so or because they “willfully” will not, making a major step toward protecting indigent defendants from the worst impulses of the justice system. However, in failing to define the critical terms “indigent” and “willful,” the Supreme Court left the decision open to subjective interpretation, undermining the protections entrenched in Bearden. To be sure, some judges remain true to the spirit of the decision, interviewing defendants or asking them to complete a questionnaire in order to determine their ability to pay. Others will tell defendants to give up certain habits or use the money from welfare payments to pay off debts. Others still, like Judge Robert Swisher in Benton County, Washington, will hold that a poor defendant is willfully refusing to pay simply based on their wearing expensive clothes or sporting tattoos. In some courts, defendants are asked only one question after they’ve received their fine: “Can you pay that today?”
To make matters worse, there are few opportunities to hold judges accountable for their failure to uphold Bearden’s requirements. Few offenders know that the decision exists. Fewer still have legal representation to advocate for their rights under the decision.
Courts’ dereliction of their responsibility to determine an offender’s ability to pay means that such inquiry often falls on the shoulders of probation officers. As with judges, some probation officers acknowledged the importance of doing fair analyses of offenders’ financial situations. Some probation officers followed Judge Swisher’s approach, taking meaningless signifiers into account, like an offender’s cigarette habit, to assess their ability to pay. Others operated with the attitude expressed by Lisa Hancock of AD Probation Services, “I don’t care whether they’re rich or whether they’re poor, they have the right to decide whether to commit that crime or not.”
In their op-ed, senators Harris and Paul lamented that whether or not someone stays in jail as they await trial is “far too often determined by wealth or social connections.” The same is true of the justice system that uses the imposition, collection and privatization of criminal justice debt to build profits off the backs of the poor. Whether or not poor offenders languish in the de facto debtors’ prisons created by these profit-generating conditions depends on their financial backgrounds.
The justice system, the senators insist, was constructed “to treat all people equally.” But it often operates in a way that is anything but equal. As with bail, debtors’ prisons enforce the existence of two different justice systems: one for the wealthy and one for the poor. Wealthy offenders are able to free themselves from the grip of the criminal justice system immediately, while poor offenders can spend years suffering under that same grip, especially if they have the misfortune of only being able to pay small installments or missing a payment.
Senators Harris and Paul referenced the tragic story of Kalief Browder to speak to the urgent need for bail reform. Browder spent three years in jail, unable to pay his $3,000 bail. The charges against him were dropped, but the damage had already been done: He hanged himself in 2015. Browder’s interaction with the criminal justice system is notable for its heartbreaking conclusion, but quite common for its trajectory. If the senators are sincere about ensuring that such stories never happen again, they should also include in their initial criminal justice reform efforts the other ways money has bastardized the criminal justice system. Federal action must be taken to undercut the forces that have fueled the rise of de facto debtors’ prisons.