Criminalizing Poverty Drives Mass Incarceration in Kentucky, Washington
by Douglas Ankney
As a teen in the South, I often heard it said: “Being poor ain’t no sin.” But apparently it has become illegal. According to a report from the Vera Institute of Justice, Kentucky’s courts charge myriad fees and fines to plug budgets riddled with holes by the loss of tax revenue as jobs have dried up in the state’s coal-mining industry and manufacturing sectors. But when those charges can’t be paid, defendants are put in jail—where they not only lose their ability to earn a wage but also incur additional debt in jail charges up to $50 per day.
Known to critics as “pay to stay” fees, these charges masquerade under names such as “administrative booking fees,” in addition to charges for any medical and dental treatment, and reimbursement for property damaged or any injury caused by the person while incarcerated. Payment can be automatically garnished from a detainee’s property or canteen account. Those on work release are charged up to 25% of their gross daily wages to defray their pay-to-stay fees. Kentucky’s jailers even charge a “$5 bond acceptance fee” on each bail bond. When not paid, some counties contract with private collection agencies, which increases the debt by about 50%. Those defendants not jailed but placed on home incarceration must pay for the cost of monitoring devices and supervision fees. From 2007 to 2020, the report found, Kentucky counties (except Fayette and Jefferson) collected about $53.5 million in jail pay-to-stay fees, $13.7 million in work-release fees, an additional $8.2 million in home incarceration fees, plus over $8.2 million in the bond acceptance fees.
Additional fees are charged post incarceration. Those convicted of felonies pay parole and probation fees up to $2,500 per year per felony, while those convicted of misdemeanors pay up to $500 annually per misdemeanor. There are additional fees for alcohol and GPS monitoring devices and attendant administrative services. Additionally, imposed fines range from $500 for a Class A misdemeanor up to $10,000 for a felony. Every criminal case is assessed a $100 court fee. District courts charge additional fees on each criminal case: $20 for transporting people in custody; $10 to pay toward the Kentucky Internet Crimes Against Children Task Force; a $5 general-fund fee; and “a $5 fee for the telephonic behavioral health triage system.” These charges are in addition to numerous other fees that each county may assess for its own projects. From 2007 to 2020, these counties collected at least $44.8 million in fiscal filing fees alone.
Vera researchers spoke with a former jail detainee identified as Garth, who described how such monetary sanctions can set off a vicious cycle that leads to further criminalization. “You get straight outta jail. And then a month later they want you to pay this $800 fine. You ain’t got a job…. So they throw you right back into jail [for not paying it],” he said. “Or the person’s scared to go to court. Cause they know they ain’t got their money. So then they get a failure to appear [which usually results in a warrant for their arrest]. It’s like a setup.”
Another man identified as Benjamin from Eastern Kentucky said that work “in restaurants and gas stations” paying minimum wage—$7.25 per hour in Kentucky—was practically all that remained in his county. The median annual household income where he lived was $33,000, 40% lower than the statewide median. Even if Benjamin managed to gain employment at 40 hours per week, his twice-weekly drug tests—at a fee of $13 a pop—would take almost 10% of his income. Other employers use legal loopholes to avoid paying even minimum wage. Garth, for example, earned $100 per week as a “peer mentor.” See: The Criminalization of Poverty in Kentucky, Vera Institute of Justice (Aug. 2023).
Sadly, Kentucky is not an outlier. Another Vera report found at least 78% of Washington defendants with legal financial obligations (LFOs) met the state’s indigency standard—yet courts imposed fines and fees averaging about $695 for each misdemeanor conviction and $1,302 for each felony. Failure to pay could result in re-incarceration and extended time on post-release supervision, yet only about 39% of those assessed LFOs for misdemeanors were able to pay off the debt within four years. For felony defendants, the rate was 6%. See: The Burden of Court Debt on Washingtonians, Vera Institute of Justice (Jan. 2023).
This ghastly practice of jailing people because they are unable to pay court-ordered fees and fines has sparked lawsuits in several states, including Idaho, Louisiana, Missouri, Oklahoma, South Carolina and Tennessee; as PLN reported, a federal court in the latter found a Fourteenth Amendment violation when jail is used as punishment for nonpayment of fees to a private government-contracted probation firm without an ability-to-pay determination. [See: PLN, Nov. 2016, p.42.]
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