In an October 2010 report examining the fifteen states that have the highest prison populations, the Brennan Center for Justice found that the practices of imposing new “user fees” on criminal defendants, raising the amounts of existing fees, and intensifying the collection of fees and other forms of criminal justice debt (such as fines and restitution) undermined the rehabilitation and reentry success of released prisoners. The report also showed that efforts expended to collect such debts, rather than increasing revenue, may actually help “pave the way back to jail and result in yet more costs to the public.”

The study noted that “fees, while often small in isolation, regularly total hundreds and even thousands of dollars. All fifteen of the examined states charge a broad array of fees, which are often imposed without taking into account ability to pay.... Thirteen of the fifteen states charge poor people public defender fees for simply exercising their constitutional right to counsel ... [which] can push defendants to waive counsel, raising constitutional questions and leading to wrongful convictions, over-incarceration, and significant burdens on the operation of the courts.”

The Brennan Center report also claims that the imposition of fees on criminal defendants can lead to a spiraling increase in debt for those convicted of even minor charges.
“Fourteen of the fifteen states also impose ‘poverty penalties’ – piling on additional late fees, payment plan fees, and interest ... often enriching private debt collectors.”

Many of these practices are resulting in the establishment of de facto “debtor’s prisons,” because people who are unable to pay are often re-incarcerated. All of the fifteen states examined in the study have jurisdictions that arrest people for failing to pay debt or appear at debt-related court hearings. According to the report, “Many states also use the threat of probation or parole revocation or incarceration for contempt as a debt-collection tool, and in some jurisdictions, individuals may also ‘choose’ to go to jail as a way to reduce their debt burdens.... Yet, even though over-incarceration harms individuals and communities and pushes state budgets to the brink, states continue to send people back to prison or jail for debt-related reasons.”

The report further highlights the incongruity of states spending large sums for collection efforts and incarcerating debtors without properly analyzing the cost of those practices.
Expenses for additional court time, salaries for debt collection employees and incarceration costs are not properly assessed when setting debt-collection policies, and it is clear that in some cases the amount collected is less than the amount expended to collect outstanding debts.

This does not take into account the social cost of extensive debt collection efforts, which may create significant barriers to reentry after prisoners are released. Eight of the fifteen states suspend driving privileges for unpaid debt, and seven require criminal justice debt to be paid off before restoring the right to vote. Even the payment of child support can be adversely affected, resulting in additional costs to state and local government agencies.

Also, it is clear from the study that when courts act as collection agencies for criminal justice debt, they may compromise their traditional independent function as an impartial arbiter of justice by putting debt collection ahead of the goals of public safety and rehabilitation of prisoners who are reentering society.

The Brennan Center presented various recommendations for reforming the use of criminal justice user fees and debt collection on the state and local levels. For example, defendants should be questioned about their debts and income, so their ability to pay can be realistically determined. Indigent defendants should be excused from payment and given some type of community service. States should stop incarcerating people for failure to pay criminal justice debts prior to a hearing to ascertain their ability to pay. Public defender fees should be abolished, to encourage defendants to take advantage of their constitutional right to counsel in criminal cases.

So-called “poverty penalties” that impose additional fees for non-payment should be eliminated. The true cost of debt collection efforts, including arrest, incarceration and driver’s license suspension, plus employees’ salaries and court-related expenses, should be evaluated, and the impact on reentry and recidivism studied. Driving privileges should only be suspended in cases where a defendant has the ability to pay but refuses to do so.

Finally, the criminal justice system must recognize that community service programs that build job skills for people unable to pay their criminal justice debts are a better use of tax dollars than the expense of putting those people back in jail where they are unable to work, pay taxes, support their families or otherwise positively contribute to society.
Community service programs should be made more widely available, but only used at the defendant’s request or when an unemployed defendant has been unable to make his or her debt payments.

The states examined in the Brennan Center study included California, Texas, Florida, New York, Georgia, Ohio, Pennsylvania, Michigan, Illinois, Arizona, North Carolina, Louisiana, Virginia, Alabama and Missouri.

Source: “Criminal Justice Debt: A Barrier to Reentry,” Brennan Center for Justice (October 2010)

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