In October 1980, Danny Bearden plead guilty to burglary and theft. The trial court sentenced Mr. Bearden to four years probation and ordered him to pay $750 in fines and restitution, with $200 payable over the first two days, and the rest of the $550 balance due within four months. Mr. Beardan was able to scrap together the first $200 payment by borrowing money from his parents.
However, about a month later, he was laid off from his job. Despite repeated attempts to find new work, Mr. Bearden, whose education stopped after the ninth grade and was unable to read, had no success. Before the balance of his fine came due, Mr. Bearden informed the court that he would be late in his payment due to his inability to find work. Nevertheless, the trial court revoked Mr. Bearden’s probation and sentenced him to serve the remainder of his probation in prison.
Mr. Bearden spent two years behind bars before the Supreme Court finally took up his case in Bearden v. Georgia. Noting that “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has,” the Court held that imprisoning a probationer who, despite no fault of his own, was unable to pay, violated the equal protection clause of the Fourteenth Amendment. The Court ruled that, before sentencing a probationer to a term of imprisonment for failure to pay court fines, a sentencing court must consider the probationer’s reasons for failure to pay. Where a court found that a probationer had made reasonable efforts to pay, yet was unable to do so, it must contemplate alternative methods of punishment. Otherwise, the court would essentially be punishing the person for his poverty.
Despite the principles expounded in Bearden v. Georgia, and the fact that debtors’ prisons are technically outlawed, today debtors’ prisons are commonplace. Experts assert that the trend in mass incarceration coincided with the rise in debtors’ prisons–as more people were jailed for non-violent offenses, people became desensitized to the caging of human beings and suddenly, the notion of incarcerating someone for failure to pay a debt no longer seemed like a big deal. Additionally, as more people were jailed in furtherance of the War on Drugs, jails, prisons and courtrooms became overcrowded and the costs of running them jumped from $6 billion in 1980 to more than $67 billion in 2010. Between these growing costs and looming state budget deficits in the wake of the fiscal crisis, politicians needed a new source of revenue but didn’t want to suffer the political backlash caused by raising taxes.
The solution: charge user fees to defendants. Many states have imposed fees ranging from the costs of incarceration, public defender services, probation, electronic monitoring, and more. In 1990, Texas reported that fees from offenders made up more than half the budget of the state’s probation agencies.
The result: the number of people with unpaid debts related to court-imposed costs is massive. In 2011 in Philadelphia, the court sent bills on unpaid debts to roughly 1 in 5 city residents, whose median debt was around $4,500. In DOJ surveys, the number of prison inmates who reported they owed court-imposed fees rose from 25% in 1991 to 66% in 2004. And if they can’t afford to pay? Lock them up.
The problem is exacerbated by the outsourcing of debt collection services to private companies, over whom there is little oversight. In this circumstance, a defendant unable to pay the fine on the set court date must agree to make installment payments. These installment payments include overhead fees that go directly to the company and compound over time (i.e. the private companies tack on their own fees to the original fines). As a consequence, those who can’t pay during their court date, will wind up owing and paying significantly more than someone who had the means to pay on the court date.
These practices exploit the poor, often forcing them to pay sums vastly beyond the original court-imposed fines, deprive indigent defendants of their constitutional rights to counsel under Gideon v. Wainwright, and result in the mass incarceration of an entire class of people, depriving them of equal protection under the law. Two cases are illustrative:
Take Larry Thompson, a 61-yr old hospice patient who suffers from chronic obstructive pulmonary disease and the recent subject of a John Oliver segment. Mr. Thompson was arrested in 2010 for driving with a revoked license, which was a felony charge due to multiple previous driving violations. Larry was sent to jail, where he applied for a public defender–which in Florida, requires a $50 application fee that cannot be waived by judges (even for the poorest defendants). Unable to pay the application fee or his bail, he remained in jail for 59 days, before ultimately pleading no contest so that he would be released.
In Florida, if a defendant is found guilty (even by a plea), he owes attorney’s fees and costs, notwithstanding his ability to pay. In addition, if a person is unable to pay the required application fee for a public defender, it’s imposed as a part of the sentence or terms of probation. Thus, Larry owed the $50.00 application fee, $100.00 in fees for the public defender, and $100 in fees for the prosecution’s costs. On top of that, the court added partial payment fees of$5.00 each month, bringing the debt owed to $850.00 when officers arrested him on a judge-ordered “writ of bodily attachment” for failure to pay his court fees. Initially, the jail would not accept him because he was too ill. After spending two days in the hospital, he was taken back to jail (where he incurred more costs).
Now take Kevin Thompson, a 19-yr old who received a traffic ticket, related to speeding and not properly renewing his license. The court ordered Mr. Thompson to pay $810 in fines. When he was unable to pay the amount in court that day, the court gave him a 30-day probation period to pay the ticket and handed his case over to Judicial Correction Services, Inc. (JCS), a for-profit corporation that oversees the collection of fines and probation of people who commit minor infractions.
Because Mr. Thompson’s license was suspended, he could no longer earn money through paid tow truck driving. He borrowed money from his family, and did odd jobs where he could to pay the court fees. He paid $85, $30 of which JCS kept as a fee, so only $55 of the money paid went towards his larger debt. When the 30 days were up and Thompson was unable to pay, JCS charged him with violating his probation and incorrectly told him that he would have to pay $150 for a public defender (even though the fee is $50 and can be waived for indigent defendants). As a result, he didn’t request a lawyer. At the probation revocation hearing, the judge revoked Mr. Thompson’s parole and sentenced him to nine days in jail. Ironically, the cost of incarcerating Mr. Thompson likely cost the state more than what Mr. Thompson owed, leading to a net loss.
Takeaway: contrary to what the court said in Bearden v. Georgia, “the kind of trial a man gets” and the type of experience a person has with the criminal justice system very much depends on the amount of money a person has. While these issues have gathered increasing media attention, leading to the suspension of the “writ of bodily attachment” and the quashing of more than 21,000 arrest orders for people who had failed to pay court fees in Florida, and to lawsuits which have resulted in the closure of JCS offices in Montgomery, Alabama, these practices are still widespread. Moreover, in at least 43 states, defendants can be billed for a public defender. Until we engage in meaningful reform of the laws that impose unreasonable court fees on those without an ability to pay them, equal justice is nothing more than a myth.