Legal Studies
Research Paper Series
Research Paper No. 16–09

Charging the Poor: Criminal Justice Debt
& Modern-Day Debtors' Prisons
Neil L. Sobol

This paper can be downloaded without charge from the
Social Science Research Network Electronic Paper Collection

CHARGING THE POOR: CRIMINAL JUSTICE DEBT &
MODERN-DAY DEBTORS’ PRISONS
NEIL L. SOBOL *
ABSTRACT
Debtors’ prisons should no longer exist. While imprisonment
for debt was common in colonial times in the United States, subsequent constitutional provisions, legislation, and court rulings
all called for the abolition of incarcerating individuals to collect
debt. Despite these prohibitions, individuals who are unable to
pay debts are now regularly incarcerated, and the vast majority
of them are indigent. In 2015, at least ten lawsuits were filed
against municipalities for incarcerating individuals in modernday debtors’ prisons.
Criminal justice debt is the primary source for this imprisonment. Criminal justice debt includes fines, restitution charges,
court costs, and fees. Monetary charges exist at all stages of the
criminal justice system from pre-conviction to parole. They include a wide variety of items, such as fees for electronic monitoring, probation, and room and board. Forty-three states even
charge fees for an indigent’s “free” public defender. With expanding incarceration rates and contracting state budgets, monetary sanctions have continued to escalate. Additionally, many
states and localities are now outsourcing prison, probation, monitoring, and collection services to private companies, who add
additional fees and charges to the criminal justice debt burden of
defendants.
The impact of criminal justice debt is especially severe on the
poor and minorities as they are frequently assessed “poverty
penalties” for interest, late fees, installment plans, and collection.
© 2016 Neil L. Sobol.
*
Associate Professor, Texas A&M University School of Law; J.D. (cum laude, order of the
coif), Southern Methodist University; M.S. and B.A. (with distinction), Stanford University. I
appreciate the encouragement and assistance of my colleagues at Texas A&M including Cynthia
Alkon, Susan Ayres, Mark Burge, Patrick Flanagan, Timothy Mulvaney, Carol Pauli, Huyen
Pham, Tanya Pierce, and Lisa Rich, as well as, the research assistance of Zachery S. Brown. I am
also grateful for the feedback received following presentations at the Central States Law Schools
Association Annual Scholarship Conference at Louisiana State University Paul M. Hebert Law
Center, ClassCrits VII at U.C. Davis School of Law, Texas A&M University School of Law, and
the Law and Society Association Annual Meeting in Seattle, Washington.

486

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Often they have to decide between paying criminal justice debt
and buying family necessities. The deaths of Michael Brown in
Ferguson, Eric Garner in New York, and Freddie Gray in Baltimore have prompted renewed calls for investigation of the adverse treatment of the poor and minorities in the criminal justice
system. The fear of arrest, incarceration, and unfair treatment
for those owing criminal justice debt creates distrust in the system.
In February 2015, a class action complaint was filed against
the City of Ferguson asserting that the city’s jails had become a
“modern debtors’ prison scheme” that had “devastated the
City’s poor, trapping them for years in a cycle of increased fees,
debts, extortion, and cruel jailings.”1 Moreover, the Department
of Justice’s report on the Ferguson Police Department presents a
scathing indictment of a system apparently more concerned with
revenue collection than justice. Unfortunately, as illustrated by
recent lawsuits and investigations alleging debtors’ prisons in
Alabama, Colorado, Georgia, Louisiana, Mississippi, New
Hampshire, Ohio, Oklahoma, Tennessee, Texas, and Washington,
the abuses are not limited to Ferguson, Missouri.
The same concerns that led to the historical restrictions on
debtors’ prisons have risen again with the growth of modern-day
debtors’ prisons. Similar to the prisons in London during the
eighteenth and nineteenth centuries that were criticized for using
a privatized system that charged inmates for all services, including room and board, the current justice system improperly charges the poor. It is now time to revisit these concerns and implement effective restrictions to reduce the incidence of debtors’
prisons. To remedy these concerns, my Article proposes eliminating egregious sanctions, providing courts flexibility to base fines
on earning levels, and establishing procedures to enforce restrictions against incarcerating those who are truly unable to pay
their criminal justice debt.

1. Class Action Complaint ¶ 6, Fant v. City of Ferguson, No. 14:15-cv-00253 (E.D. Mo.
Feb. 8, 2015), http://equaljusticeunderlaw.org/wp/wp-content/uploads/2015/02/ComplaintFerguson-Debtors-Prison-FILE-STAMPED.pdf [hereinafter Ferguson Complaint].

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TABLE OF CONTENTS
ABSTRACT ............................................................................................. 486
INTRODUCTION ...................................................................................... 488
I. A SHORT HISTORY OF DEBTORS’ PRISONS ....................................... 494
A. The Rise and Fall of Debtors’ Prisons in Europe ................. 494
B. The Rise and Fall of Debtors’ Prisons in America ............... 496
II. CRIMINAL JUSTICE DEBT AND RESTRICTIONS ON DEBTORS’
PRISONS ...................................................................................... 498
A. Defining Criminal Justice Debt ............................................ 498
B. Prohibitions Against Debtors’ Prisons for Criminal
Justice Debt ................................................................................ 504
III. CRIMINAL JUSTICE DEBT AND THE RESURGENCE OF DEBTORS’
PRISONS ...................................................................................... 508
A. The Growth in Criminal Justice Debt and Offender
Funding ...................................................................................... 508
B. The Rise of Modern-Day Debtors’ Prisons .......................... 512
C. The Disparate Impact of Criminal Justice Debt on the Poor
and Minorities ..................................................................... 516
D. Conflicts of Interest and Distrust in the Criminal Justice
System................................................................................. 521
IV. A FRAMEWORK FOR REDUCING INCARCERATION OF INDIGENTS
WHO FAIL TO PAY CRIMINAL JUSTICE DEBT ............................. 524
A. Alternatives .......................................................................... 524
B. Hybrid Approach .................................................................. 532
V. CONCLUSION.................................................................................... 540

INTRODUCTION
Case 1: A woman is imprisoned along with her sick baby for failure to pay a $12 debt and court costs of $4.63. After more than
twenty days in jail, the infant is so sick that authorities remove
the child, and the child dies away from her imprisoned mom.
Case 2: A woman is sentenced to jail based on failure to pay fines
and fees related to the truancy of her children. She dies her first
night in prison.
Both cases are tragic. Both involve imprisonment for failure to pay
amounts owed. Both prompted calls for reforms. Case 1 is the story of

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Hannah Crispy, which occurred in Boston in 1820. 2 Case 1 and similar
cases helped trigger calls to end the use of prisons for the collection of
debt. 3 And states responded by passing laws to abolish the practice. 4
Case 2, however, is the story of Eileen DiNino of Berks County, Pennsylvania, and it occurred nearly 200 years after Crispy’s case. 5 In June
2014, DiNino, a fifty-five-year-old unemployed mother of seven kids,
agreed to a jail term of two days because she was unable to pay approximately $2000 in fines, fees, and court costs assessed against her because her
children had not attended school.6 Incarcerating parents for failure to pay
truancy fines is not uncommon in Berks County as over 1600 people have
been jailed for the offense since 2000. 7 More than sixty-six percent of the
jailed parents are women. 8 Typically, truancy fines are relatively small,
$75 or less; however, court costs and fees compound the amount due. 9
Costs and fees assessed against DiNino included charges for a “judicial
computer project,” constables, and postage. 10 As with Crispy’s tragic case,
DiNino’s case has also led to a call for alternatives to debtors’ prisons. 11

2. Karen Gross, Marie Stefanini Newman & Denise Campbell, Ladies in Red: Learning
from America’s First Female Bankrupts, 40 AM. J. LEGAL HIST. 1, 35–36 (1996).
3. Id. at 35 n.190 (describing Colonel Richard M. Johnson’s use of Hannah Crispy’s story in
an 1832 speech to the U.S. Senate calling for the abolition of debtors’ prisons).
4. See Richard H. Chused, Married Women’s Property Law: 1800–1850, 71 GEO. L.J. 1359,
1402 n.232 (1983) (identifying that by the 1840s several states, including New Hampshire, Vermont, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Delaware, North Carolina,
and Georgia had prohibited imprisonment for debt). Interestingly, states passed laws that specifically banned debtors’ prisons for women before passing similar restrictions for men. Id. at 1406–
07.
5. Maryclaire Dale, Woman Sentenced to Two Days for Truancy Fines Dies in Jail; Judge
(June
11,
2014),
Says
It
Was
His
Only
Option,
STARTRIBUNE
http://www.startribune.com/nation/262737551.html.
6. Id.
7. Id. The Pennsylvania Supreme Court has also ruled that truancy laws may apply to the
parents of kindergarteners. Commonwealth v. Kerstetter, 94 A.3d 991, 1005–06 (Pa. 2014).
8. Dale, supra note 5.
9. Id.
10. Id.
11. See Eric Owens, Mom of Seven Died in This Prison After Judge Jailed Her for Her Kids’
Excessive Truancy, DAILY CALLER (June 14, 2014), http://dailycaller.com/2014/06/14/mom-ofseven-died-in-this-prison-after-judge-jailed-her-for-her-kids-excessive-truancy/; Alan Pyke, Impoverished Mother Dies in Jail Cell over Unpaid Fines for Her Kids Missing School,
THINKPROGRESS (June 12, 2014), http://thinkprogress.org/economy/2014/06/12/3448105/motherdies-jail-cell-fines/. Bills calling for the establishment of “Eileen’s Law” have been introduced in
Pennsylvania’s House and Senate, and on February 25, 2015, the House unanimously approved its
proposal for Eileen’s Law. Dan Kelly, State House Approves ‘Eileen’s Law’, READING EAGLE
(Feb.
26,
2015),
http://readingeagle.com/news/article/state-house-approves-eileenslaw&template=mobileart. Supporters hope that the bill will be presented to the governor before
January 2016. Dan Kelly, Key Senator Says Eileen’s Law Should Go to Gov. Tom Wolf by Year’s
End, READING EAGLE (June 10, 2015), http://readingeagle.com/news/article/key-senator-sayseileens-law-should-go-to-gov-tom-wolf-by-years-end.

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The issue of incarcerating indigents for failure to pay fines and fees is
not limited to Berks County, Pennsylvania, but is a national phenomenon
that has apparently accompanied the growth of mass incarceration in the
United States. 12 America leads the world in incarceration rates.13 Nearly
one-quarter of the prisoners in the world are in the United States, even
though more than ninety-five percent of the world’s population is outside
the United States. 14 Significant racial disparities exist in the prison population, with black males imprisoned at more than six times the rate of white
males. 15 Moreover, racial disparity in prisons is expected to continue, with
12. Katherine Beckett & Alexes Harris, On Cash and Conviction: Monetary Sanctions as
Misguided Policy, 10 CRIMINOLOGY & PUB. POL’Y 509, 524 (2011) (finding “nonpayment of
monetary sanctions leads to a significant number of warrants, arrests, probation revocations, jail
stays, and prison admissions in locales across the country”); see also AM. CIVIL LIBERTIES
UNION, IN FOR A PENNY: THE RISE OF AMERICA’S NEW DEBTORS’ PRISONS 50 (2010),
https://www.aclu.org/files/assets/InForAPenny_web.pdf (former county public defender in Ohio
estimating that “20 to 25 percent of all local incarcerations statewide are for fines and costs, while
about 50 percent of arrests are for fines and costs”). For a story discussing the growth in lawsuits
alleging that municipalities are operating debtors’ prisons, see Joseph Shapiro, Lawsuits Target
‘Debtors’
Prisons’
Across
the
Country,
NPR
(Oct.
21,
2015),
http://www.npr.org/2015/10/21/450546542/lawsuits-target-debtors-prisons-across-the-country
(identifying lawsuits filed in September and October 2015 in New Orleans, La.; Rutherford County, Tenn.; Biloxi and Jackson, Miss.; Benton County, Wash.; and Alexander City, Ala.). Additionally, on October 27, 2015, a federal lawsuit was filed against Austin, Texas alleging that the
city regularly jails indigent defendants for failure to pay legal financial obligations for misdemeanors, fails to provide them with counsel, and fails to conduct ability-to-pay hearings. Class
Action Complaint ¶¶ 1–2, Gonzales v. City of Austin, No. 15-cv-956 (W.D. Tex. Oct. 27, 2015),
https://assets.documentcloud.org/documents/2488534/complaint-against-austin.pdf.
13. Marie Gottschalk, The Past, Present, and Future of Mass Incarceration in the United
States, 10 CRIMINOLOGY & PUB. POL’Y 483, 483 (2011) (describing the United States as “the
world’s warden, incarcerating a larger proportion of its people than any other country”).
14. INIMAI CHETTIAR, LAUREN-BROOKE EISEN & NICOLE FORTIER, BRENNAN CTR. FOR
JUSTICE, REFORMING FUNDING TO REDUCE MASS INCARCERATION 3 (2013) (citing ROY
WALMSLEY, INT’L. CTR. FOR PRISON STUDIES, WORLD PRISON POPULATION LIST 3 (9th ed.
2011)),
http://www.brennancenter.org/sites/default/files/publications/REFORM_FUND_MASS_INCARC
_web_0.pdf. The general issue of mass incarceration is beyond the scope of this Article. For
more detailed information, see Gottschalk, supra note 13; NAT’L RESEARCH COUNCIL, THE
GROWTH OF INCARCERATION IN THE UNITED STATES: EXPLORING CAUSES AND CONSEQUENCES
2
(Jeremy
Travis,
Bruce
Western
&
Steve
Redburn
eds.,
2014),
http://www.nap.edu/catalog/18613/the-growth-of-incarceration-in-the-united-states-exploringcauses.
15. CHETTIAR ET AL., supra note 14, at 9 (citing PEW RESEARCH CTR., KING’S DREAM
REMAINS AN ELUSIVE GOAL; MANY AMERICANS SEE RACIAL DISPARITIES 20 (2013),
http://www.pewsocialtrends.org/2013/08/22/kings-dream-remains-an-elusive-goal-manyamericans-see-racial-disparities/4/#incarceration-rate); Mae C. Quinn, Giving Kids Their Due:
Theorizing a Modern Fourteenth Amendment Framework for Juvenile Defense Representation, 99
IOWA L. REV. 2185, 2204 (2014) (referring to sources that document how “contemporary criminal
courts maintain a de facto caste system that has historically disenfranchised and dehumanized persons of color”). The general issue of disparate treatment of prisoners in the United States is beyond the scope of this Article. For more information, see JESSICA EAGLIN & DANYELLE
SOLOMON, BRENNAN CTR. FOR JUSTICE, REDUCING RACIAL AND ETHNIC DISPARITIES IN JAILS:
RECOMMENDATIONS
FOR
LOCAL
PRACTICE
(2015),

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one-third of black males and one-sixth of Hispanic males born recently predicted to be incarcerated at some point in their lives. 16 In the last ten years,
the term “mass incarceration” has been used to describe the prison problem
in the United States. 17
While people are generally aware of the issue of mass incarceration,18
most also assume that debtors’ prisons no longer exist. 19 They believe that
debtors’ prisons are a relic of a past described by Charles Dickens. 20 Federal and state laws both restrict imprisonment for debt.21 Despite these prohibitions, incarceration for failure to pay continues. While prisons housing
only debtors no longer exist, individuals are still being incarcerated when
they are unable to pay their debts.22 The sources for incarceration based on
failure to pay vary and include administrative detention, civil contempt,
child support orders, and monetary obligations that the criminal justice system imposes. 23
This Article focuses on criminal justice debt. Criminal justice debt includes a broad range of items, also referred to as legal financial obligations
(“LFOs”). 24 The main categories of LFOs are fines, restitution charges, and
fees. 25 With increasing incarceration rates and growing budgetary concerns, LFOs have escalated dramatically over the last forty years. 26 Monehttps://www.brennancenter.org/sites/default/files/publications/Racial%20Disparities%20Report%
20062515.pdf; CHRISTOPHER HARTNEY & LINH VUONG, NAT’L COUNCIL ON CRIME &
DELINQUENCY, CREATED EQUAL: RACIAL AND ETHNIC DISPARITIES IN THE US CRIMINAL
JUSTICE SYSTEM (2009), http://www.nccdglobal.org/sites/default/files/publication_pdf/createdequal.pdf.
16. Gottschalk, supra note 13, at 483.
17. Oliver Roeder, Just Facts: Quantifying the Incarceration Conversation, BRENNAN CTR.
BLOG (July 16, 2014), http://www.brennancenter.org/blog/just-facts-quantifying-incarcerationconversation (describing the development of the term “mass incarceration”).
18. Id.
19. Beckett & Harris, supra note 12, at 526.
20. Stephen J. Ware, A 20th Century Debate About Imprisonment for Debt, 54 AM. J. LEGAL
HIST. 351, 352–53 (2014); see e.g., CHARLES DICKENS, LITTLE DORRIT 41–42, 57, 383 (Barnes &
Noble, Inc. 2009) (1857) (describing the Marshalsea debtors’ prison).
21. See infra notes 74–75 and accompanying text.
22. Beckett & Harris, supra note 12, at 526.
23. Katherine Beckett & Naomi Murakawa, Mapping the Shadow Carceral State: Toward an
Institutionally Capacious Approach to Punishment, 16 THEORETICAL CRIMINOLOGY 221, 234
(2012), http://tcr.sagepub.com/content/16/2/221.
24. Id. at 227; Wayne A. Logan & Ronald F. Wright, Mercenary Criminal Justice, 2014 U.
ILL. L. REV. 1175, 1176−77.
25. See infra Part II.A.
26. Beckett & Harris, supra note 12, at 512−13; Alexes Harris, Heather Evans & Katherine
Beckett, Drawing Blood from Stones: Legal Debt and Social Inequality in the Contemporary
United States, 115 AM. J. SOC. 1753, 1756 (2010) (finding that “monetary sanctions are now imposed by the courts on a substantial majority of the millions of U.S. residents convicted of felony
and misdemeanor crimes each year”); Mary Fainsod Katzenstein & Mitali Nagrecha, A New Punishment Regime, 10 CRIMINOLOGY & PUB. POL’Y 555, 556–57 (2011) (observing that “the growth
of fines, fees, and other debts accompanied the trend line in the increase of incarceration since the

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tary charges now exist at all stages of the criminal justice process, including
pre-conviction, sentencing, incarceration, probation, and parole.27 Fees
have expanded to include a wide variety of charges purportedly to reimburse the costs of state and local entities. 28 The fees even cover constitutionally required services such as public defenders. 29 The system of using
fees has been labeled an “offender-funded” system. 30 Offender funding has
grown over the years, and several states now outsource prison, probation,
monitoring, and collection services to private companies.31 These companies may assess and collect fees, using the threat of incarceration for failure
to pay. 32
The growth in incarceration of individuals for failure to pay LFOs has
accompanied the increase in criminal justice debt. 33 Indigents are jailed or
imprisoned despite statutory and case law prohibitions against incarceration
based on their inability to pay their debts.34
As may be expected, the impact on the poor and minorities is especially severe. 35 A two-tiered system exists where those who can pay their
criminal justice debts can escape the system while those who are unable to
pay are trapped and face additional charges for late fees, installment plans,
and interest. 36 These extra charges have been referred to as “poverty penal-

early 1970s”); Joseph Shapiro, As Court Fees Rise, The Poor Are Paying the Price, NPR (May 19,
2014), http://www.npr.org/2014/05/19/312158516/increasing-court-fees-punish-the-poor.
For
example, the percentage of inmates with LFOs grew from twenty-five percent in 1991 to sixty-six
percent in 2004. Gerry Myers, Never Mind What the Constitution Says, Our Prison System Has
Run Amok, HUFFINGTON POST BLOG (June 24, 2014), http://www.huffingtonpost.com/gerrymyers/never-mind-what-the-const_b_5523165.html?view=screen. For more details, see infra Part
III.A.
27. Shapiro, supra note 26. For more details, see infra Part II.A.
28. Shapiro, supra note 26. For more details, see infra Part II.A.3.
29. Shapiro, supra note 26.
30. HUMAN RIGHTS WATCH, PROFITING FROM PROBATION: AMERICA’S “OFFENDERPROBATION
INDUSTRY
1
(2014),
FUNDED”
http://www.hrw.org/sites/default/files/reports/us0214_ForUpload_0.pdf.
31. HUMAN RIGHTS WATCH, supra note 30 (describing offender-funded probation systems);
Logan & Wright, supra note 24, at 1193.
32. HUMAN RIGHTS WATCH, supra note 30, at 49. Typically, civil debt collectors may not
threaten arrest or imprisonment. 15 U.S.C. § 1692e(4) (2012).
33. Shapiro, supra note 26; see infra Part III.B.
34. Bearden v. Georgia, 461 U.S. 660, 671–73 (1983) (holding that the court should assess a
convict’s ability to pay before revoking probation for failure to pay fines or restitution); Shapiro,
supra note 26; see infra Part III.B.
35. Harris, Evans & Beckett, supra note 26, at 1756 (finding “that penal institutions are increasingly imposing a particularly burdensome and consequential form of debt on a significant
and growing share of the poor”); see infra Part III.C.
36. AM. CIVIL LIBERTIES UNION, supra note 12, at 10; Shapiro, supra note 26 (describing the
practice of charging fees as one “that causes the poor to face harsher treatment than others who
commit identical crimes and can afford to pay”).

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ties.” 37 Ironically, those least able to pay wind up with more LFOs than
those who can pay their fines and fees upfront. 38 Additionally, the use and
threat of incarceration may be financially counterproductive, as the expenditures for arrest and incarceration may be more than the amounts assessed or ever collected from those unable to pay. 39
Even in situations where physical incarceration may not occur, the
poor and minorities often have LFOs that they are unable to pay and fear
that failure to pay may result in arrest and imprisonment. 40 The monetary
obligations and stigma from failure to pay reduce the likelihood of obtaining employment and force individuals to choose between necessities, including family support, and payment of their LFOs. 41 The threat of incarceration for unpaid LFOs may even encourage individuals to commit
crimes to obtain funds to avoid incarceration. 42
This Article examines the relationship between criminal justice debt
and the use of incarceration for failure to pay. Part I provides a brief history
of debtors’ prisons explaining how they began and the call for their abolition. Part II defines the sources of criminal justice debt and identifies the
general prohibitions designed to prevent the use of debtors’ prisons to recover criminal justice debt. Part III recognizes that, despite these prohibitions, courts are incarcerating indigent defendants for failure to pay criminal
justice debt. This Part describes the growth in criminal justice debt as well
as the resurgence of debtors’ prisons. It explains how the process has created a two-tiered system that adversely affects the poor and minorities, often
placing them in a never-ending cycle of poverty, and creating distrust in the
system. Furthermore, this Part identifies the conflicts of interest that exist
in the current system of assessing and collecting criminal justice debt.

37. ALICIA BANNON, MITALI NAGRECHA & REBEKAH DILLER, BRENNAN CTR. FOR JUSTICE,
CRIMINAL
JUSTICE
DEBT:
A
BARRIER
TO
REENTRY
1
(2010),
http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf.
38. AM. CIVIL LIBERTIES UNION, supra note 12, at 10.
39. Id. at 9 (“incarcerating indigent defendants unable to pay their LFOs often ends up costing much more than states and counties can ever hope to recover”); LAUREN-BROOKE EISEN,
BRENNAN CTR. FOR JUSTICE, CHARGING INMATES PERPETUATES MASS INCARCERATION 4–5
(2015),
https://www.brennancenter.org/sites/default/files/blog/Charging_Inmates_Mass_Incarceration.pdf.
40. Harris, Evans & Beckett, supra note 26, at 1761–62.
41. Beckett & Harris, supra note 12, at 517–23; see also FOSTER COOK, JEFFERSON
COUNTY’S COMMUNITY CORRECTIONS PROGRAM TREATMENT ALTERNATIVES FOR SAFER
COMMUNITIES, THE BURDEN OF CRIMINAL JUSTICE DEBT IN ALABAMA: 2014 PARTICIPANT
SELF-REPORT
SURVEY
24
(2014),
http://media.al.com/opinion/other/The%20Burden%20of%20Criminal%20Justice%20Debt%20in
%20Alabama-%20Full%20Report.pdf (reporting results from survey of Alabama residents with
criminal justice debt and showing that survey participants forwent necessities such as utilities,
groceries, and rent or mortgage payments in order to pay for criminal justice debt).
42. Katzenstein & Nagrecha, supra note 26, at 566.

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Part IV proposes a framework for reducing the incidence of debtors’
prisons. This Part examines various proposals and concludes that states
should follow a hybrid approach to provide specific guidance to help ensure
that the constitutional rights of indigents are not violated. As part of this
approach, remedies should be based on the nature of the monetary sanction.
If the charge is merely to reimburse the state, the remedies should be limited to civil remedies, and not include arrest or incarceration. For other
monetary sanctions, incarceration should only be permitted if a court, after
notice and hearing, specifically determines that the inability to pay is not
the basis for failure to pay. Defendants should be afforded the right to
counsel at this hearing. The determination of ability to pay should depend
on whether the monetary sanction would impose undue hardship on the defendant and her dependents. To help with enforcement and understanding
of the proposal, this Part also recommends measures that allow for the
adjustment of sanctions based on earnings and provide notice, education,
transparency, and accountability for all actors (including third-party
companies) involved in the assessment and collection of criminal justice
debt.
The call to end debtors’ prisons began centuries ago, and while laws
have been passed to eliminate them, in practice, debtors’ prisons are now
flourishing. Many of the same concerns that initially prompted public outcry against debtors’ prisons exist today. It is time to eliminate modern-day
debtors’ prisons and recognize that alternatives to incarceration should be
used for those truly unable to pay debts.
I. A SHORT HISTORY OF DEBTORS’ PRISONS
A general understanding of the historical development of debtors’
prisons is helpful in evaluating the issues with modern-day debtors’ prisons
because many of the concerns that led to the abolition of these prisons have
resurfaced with the recent expansion of the use and threat of incarceration
for those who are unable to pay monetary obligations. Accordingly, this
Part will briefly discuss the rise and fall of debtors’ prisons prior to their
contemporary resurgence.
A. The Rise and Fall of Debtors’ Prisons in Europe
Throughout history, imprisonment for debt has ebbed and flowed. 43
Most civilizations have incarcerated debtors for failure to pay their debts. 44

43. See Matthew J. Baker, Metin Cosgel & Thomas J. Miceli, Debtors’ Prisons in America:
An Economic Analysis, 84 J. ECON. BEHAV. & ORG. 216, 217 (2012) (providing an overview of
debtors’ prisons from the Middle Ages in Europe to the Reconstruction Era in America). A detailed discussion of the history of imprisonment for debt is beyond the scope of this Article. For
more detailed information, see Richard Ford, Imprisonment for Debt, 25 MICH. L. REV. 24 (1927).

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The Bible reflects the common use of the practice. 45 In 451 B.C., the Romans, in their first written law, the Twelve Tables, formalized incarceration
for those unable to pay their debts. 46 Imprisonment for debt in Rome continued for over 100 years until 326 B.C. In that year, prompted by public
calls after a creditor beat the son of a debtor, the Roman Senate prohibited
incarceration based on failure to pay debts and ordered the release of all
confined debtors. 47
Unfortunately, the Roman proclamation did not end the use of debtors’
prisons. Instead, the use continued during the Middle Ages, although their
use fluctuated. 48 Similarly, despite reports that imprisonment for debt in
England ended with the Norman Conquest in 1066, incarceration for debts
gained new life with the passage of imprisonment statutes in 1267 and
1285. 49 Under these statutes and subsequent enactments, debtors’ prisons
would continue in England for more than five centuries. 50
Relying on manuscripts and petitions from prisoners, Dr. Philip Woodfine of the University of Huddersfield has written about the conditions of
debtors’ prisons in Yorkshire County, England during the eighteenth century. 51 The prisons were run as “semiprivatized” systems operating for profit,
in which jailers would assess prisoner fees, “including fees for admission
and release,” as well as charges “for rooms, bed linen, beer, and food.”52
Reports issued in 1729–1730 reflected concerns about “the evil of exorbitant fees” that “arose chiefly from the franchising of prisons, which meant
that a marshal or keeper had to return a substantial profit on the jail each
year.” 53
The privatized system, which was typically unregulated by the courts
and the legislature, created a conflict of interest for wardens who were de44. Baker et al., supra note 43 at 217; Richard E. James, Note, Putting Fear Back into the
Law and Debtors Back into Prison: Reforming the Debtors’ Prison System, 42 WASHBURN L.J.
143, 145–49 (2002); Becky A. Vogt, Note, State v. Allison: Imprisonment for Debt in South Dakota, 46 S.D. L. REV. 334, 338–40 (2001).
45. See Baker et al., supra note 43, at 217 (citing Matthew 18:29–31); James, supra note 44,
at 146; Vogt, supra note 44, at 339.
46. Jayne S. Ressler, Civil Contempt Confinement and the Bankruptcy Abuse Prevention and
Consumer Protection Act of 2005: An Examination of Debtor Incarceration in the Modern Age,
37 RUTGERS L.J. 355, 358 (2006); Vogt, supra note 44, at 338–39.
47. Vogt, supra note 44, at 339.
48. Baker et al., supra note 43, at 217; Ford, supra note 43, at 25–26.
49. Jay Cohen, The History of Imprisonment for Debt and its Relation to the Development of
Discharge in Bankruptcy, 3 J. LEGAL HIST. 153, 154 (1982) (describing the coverage of the imprisonment statutes of 1267 and 1285); Ford, supra note 43, at 27; James, supra note 44, at 146;
Vogt, supra note 44, at 340–42.
50. Baker et al., supra note 43, at 217.
51. Philip Woodfine, Debtors, Prisons, and Petitions in Eighteenth-Century England, 30
EIGHTEENTH-CENTURY LIFE, Spring 2006, at 1.
52. Id. at 5–6.
53. Id. at 12–13.

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pendent on fees from their inmates.54 As a result, even if fees were thought
to be unconscionable, they were not challenged because of “the need to ensure that prison officials would have access to a dependable income.” 55
Despite these concerns, imprisonment for debt continued in England
and virtually all of Europe during the 1800s. 56 Meaningful reform did not
occur until 1869 when Parliament enacted acts abolishing imprisonment for
debt, releasing incarcerated debtors, and establishing a process for discharge through bankruptcy. 57 Even with the passage of these statutes, reports of instances of incarceration for debt in England continued into the
twentieth century. 58
B. The Rise and Fall of Debtors’ Prisons in America
Although initially colonists were sympathetic to debtors, by the beginning of the eighteenth century, imprisonment of debtors was a common
practice in America. 59 As in England, some states had separate buildings
for the housing of debtors. 60 The list of imprisoned debtors included
society’s poorest individuals as well as some of its wealthiest and famous
members, such as “Robert Morris, who helped finance the American
Revolution and ran the Treasury under the Articles of Confederation.”61
Class segregation existed among imprisoned debtors.62 As in England,
inmates in America’s eighteenth-century debtors’ prisons could pay for better services and conditions, assuming they had money or could borrow

54. Id. at 6; see Alex Pitofsky, The Warden’s Court Martial: James Oglethorpe and the Politics of Eighteenth-Century Prison Reform, 24 EIGHTEENTH-CENTURY LIFE, Winter 2000, at 88,
98–99 (concluding that “[t]he fact that wardens’ offices constituted legally protected private property also militated against most attempts to reform the nation’s penal institutions”).
55. Pitofsky, supra note 54, at 99.
56. See Baker et al., supra note 43, at 217; Ford, supra note 43, at 30 (referencing an 1834
British parliamentary commission report “that at the time imprisonment for debt was legal in every country in continental Europe except Portugal”).
57. Cohen, supra note 49, at 164.
58. BANNON ET AL., supra note 37, at 19 (citing Sandor E. Schick, Globalization, Bankruptcy, and the Myth of the Broken Bench, 80 AM. BANKR. L.J. 219, 258 & n.202 (2006)); Ware, supra note 20, at 376.
59. Baker et al., supra note 43, at 217; James, supra note 44, at 147; Vogt, supra note 44, at
343.
60. Steve Fraser, Another Day Older and Deeper in Debt, 33 RARITAN 67, 69 (2013). For
example, the Debtors’ Prison in Worsham, Virginia, was built in 1787 and remains on the national
register of historic places. VA. DEP’T OF HISTORIC RES., NATIONAL REGISTRY OF HISTORIC
PLACES
NOMINATION
FORM:
DEBTORS’
PRISON
(1972),
http://www.dhr.virginia.gov/registers/Counties/PrinceEdward/0730007_Debtor’s_Prison_1972_Final_Nomination.pdf.
61. Fraser, supra note 60, at 68–69 (listing famous individuals imprisoned for debt, including
army generals, an officer in the Treasury Department, and a state Supreme Court judge).
62. Id. at 69.

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funds. 63 Debtors with large debts and good social connections enjoyed
“good food and well-appointed living quarters, as well as books and other
amusements, including on occasion manicurists and prostitutes.”64 On the
other hand, debtors with petty debts, who comprised the vast majority of
debtors in prison, lived in unclean and disease-ridden places and were
charged for necessities such as food, water, and heat, which, of course, they
could not afford. 65
A financial crisis in 1797 causing the incarceration of thousands, including Robert Morris, led to the passage of America’s first federal bankruptcy law in 1800. 66 The Bankruptcy Act of 1800, however, was shortlived as it was repealed after only three years. 67 Moreover, the Act provided relief only to debtors who were merchants.68 It did not apply to the
thousands in prison based on petty debts. 69
In 1821, Kentucky, led by the efforts of Senator Richard Johnson, became the first state to abolish debtors’ prisons.70 Senator Johnson also introduced similar legislation in 1822 at the federal level, and in an appendix
to his address to the United States Congress, he included the story of Hannah Crispy’s experience in a Boston debtors’ prison.71 Federal law restrict-

63. NICHOLAS R. PARRILLO, AGAINST THE PROFIT MOTIVE: THE SALARY REVOLUTION IN
AMERICAN GOVERNMENT, 1780–1940, at 296–98 (2013). Interestingly, in his text, Professor Parrillo describes the transition of public official compensation between 1780 and 1940 from a profitbased system relying on payments received for services or results to a salary system that removed
the profit motive. Id. at 1–4.
64. Fraser, supra note 60, at 69. A comparison can be made to the “pay-to-upgrade” systems
that currently exist in certain California counties that allow those with sufficient resources to pay
for improved accommodations while incarcerated. See EISEN, supra note 39, at 3; Leah A. Plunkett, Captive Markets, 65 HASTINGS L.J. 57, 61 (2013).
65. Fraser, supra note 60, at 70.
66. Charles Jordan Tabb, The History of the Bankruptcy Laws in the United States, 3 AM.
BANKR. INST. L. REV. 5, 14 (1995).
67. Id. at 14–15. Robert Morris, however, did receive a discharge. Id. at 15.
68. Id. at 14.
69. See Fraser, supra note 60, at 72. Fraser compares the situation of only providing relief to
those with sizable debt to the “too big to fail” institutions of modern times because big debtors
were necessary to the operation of credit-based commerce. Id. (stating “[i]t made no sense for
those interested in nurturing the growth of a commercial civilization to stop up the arteries of
commerce, which after all couldn’t function without instruments of credit and debt, by taking its
most successful debtors out of circulation”).
70. Scott Jennings, Kentucky’s Tradition of Reforming Nation’s Prisons, COURIER-JOURNAL
(Aug. 6, 2014), http://www.courier-journal.com/story/opinion/columnists/2014/08/05/kentuckystradition-reforming-nations-prisons/13618337. The 1776 and 1790 constitutions of Pennsylvania
did “nominally” abolish imprisonment for debt; however, Pennsylvania continued to imprison
debtors with an estimated 7000 imprisoned in 1830. Ford, supra note 43, at 29 & n.28.
71. Gross, supra note 2, at 35 n.190 (citing Col. Richard M. Johnson, On a Proposition to
Abolish
Imprisonment
for
Debt,
(Jan.
14,
1823)
app.
at
22,
http://catalog.hathitrust.org/Record/100187404 (submitted to the U.S. Senate)); Jennings, supra
note 70.

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ing incarceration for failure to pay debts was enacted in 1933. 72 Similarly,
in the 1830s, significant calls for reform had also begun at the state level
with state constitutional and legislative pronouncements declaring an end to
imprisonment for debt. 73
Currently, statutory or constitutional provisions prohibiting imprisonment for debt exist in every state. 74 Additionally, federal imprisonment for
debt is not permitted in states that prohibit incarceration for debt. 75
II. CRIMINAL JUSTICE DEBT AND RESTRICTIONS ON DEBTORS’ PRISONS
Despite the prohibitions in the United States, individuals are currently
being imprisoned for failure to pay debts. The “pathways” to prison or jail
vary and involve both criminal and civil law. 76 Incarceration may occur in
child support cases, 77 administrative detention matters,78 and post-judgment
civil collection matters. 79 Additionally, failure to pay criminal justice debt
represents a significant and growing reason for incarceration in today’s
debtors’ prisons. 80 This section describes the origins and development of
criminal justice debt as well as the restrictions on the use of incarceration as
a method of collecting the debt.
A. Defining Criminal Justice Debt
Criminal justice debt is a catchall phrase for the financial charges assessed in the criminal justice process. These charges are also referred to as

72. Jennings, supra note 70.
73. Ford, supra note 43, at 29; Tabb, supra note 66, at 16.
74. Vogt, supra note 44, at 348. Vogt has also compiled a listing of the relevant statutory
and constitutional provisions. Id. at 335 n.9.
75. 28 U.S.C. § 2007 (2012); Vogt, supra note 44, at 348.
76. Beckett & Murakawa, supra note 23, at 227.
77. The discussion of incarceration for failure to pay child support is beyond the scope of this
Article. For more detailed information, see Elizabeth G. Patterson, Civil Contempt and the Indigent Child Support Obligor: The Silent Return of Debtor’s Prison, 18 CORNELL J.L. & PUB.
POL’Y 95, 95 (2008) (explaining that “[e]ach day in the United States thousands of persons are
jailed on charges arising from failure to pay court-ordered child support”).
78. Beckett & Murakawa, supra note 23, at 225–27.
79. In these matters, typically incarceration is the result of a contempt order based on an alleged debtor’s failure to respond to or attend a hearing on post-judgment discovery in a collection
matter. See Lea Shepard, Creditors’ Contempt, 2011 B.Y.U. L. REV. 1509 (discussing the use of
in personam debt collection remedies). National Public Radio has also reported on the problem of
incarcerating individuals for failure to pay civil debts. Susie An, Unpaid Bills Land Some Debtors
Behind Bars, NPR (Dec. 12, 2011), http://www.npr.org/2011/12/12/143274773/unpaid-bills-landsome-debtors-behind-bars; see Jessica Silver-Greenberg, Debtor Arrests Criticized, WALL ST. J.
(NOV.
22,
2011),
http://online.wsj.com/news/articles/SB10001424052970203710704577052373900992432 (noting
that more than thirty-three percent of states allow incarceration for failure to pay civil debts).
80. AM. CIVIL LIBERTIES UNION, supra note 12, at 8.

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legal financial obligations or LFOs. 81 Fines, restitution charges, and fees
are the primary components of LFOs.82 An understanding of the origin and
purported rationale for these categories is helpful in assessing the use of incarceration as a method of collecting criminal justice debt.
1. Fines
Fines are a widely used method of punishing defendants. 83 If a defendant is unable or unwilling to pay a fine, the defendant will likely face
incarceration. 84 Originally, the basis for fines in England was revenue collection. 85 Payment or “mak[ing] fine” to the king was a way that a defendant could settle with the king and avoid incarceration. 86 Over time, the primary rationale for fines became punishment rather than revenue
generation. 87
In the United States, the recent growth in state and local budgetary issues, however, has prompted a return to the use of fines for revenue generation. 88 Concerns now exist regarding the aggressive use of fines for traffic
and parking violations to raise money to support local governments. 89 The
Department of Justice’s report on the Ferguson Police Department describes
a system where “[c]ity, police, and court officials for years have worked in
concert to maximize revenue at every stage of the enforcement process, beginning with how fines and fine enforcement processes are established.” 90
81. Beckett & Murakawa, supra note 23, at 227; Harris, Evans & Beckett, supra note 26, at
1756; Logan & Wright, supra note 24, at 1177.
82. Kirsten D. Levingston & Vicki Turetsky, Debtors’ Prison—Prisoners’ Accumulation of
Debt As a Barrier to Reentry, 41 CLEARINGHOUSE REV. J. POV. L. & POL’Y 187, 188 (2007)
(characterizing the basic categories of “criminal justice-related debts” as “(1) fines and assessments levied with a punitive purpose; (2) penalties levied with a restitution purpose; and (3) assessments levied with a public cost-recovery purpose”); R. Barry Ruback, The Abolition of Fines
and Fees: Not Proven and Not Compelling, 10 CRIMINOLOGY & PUB. POL’Y 569, 569–70 (2011).
This list is not exclusive. See, e.g., R. Barry Ruback & Mark H. Bergstrom, Economic Sanctions
in Criminal Justice: Purposes, Effects, and Implications, 33 CRIM. JUST. & BEHAV. 242, 257–58
(2006) (characterizing forfeitures as government seizures of property).
83. Levingston & Turetsky, supra note 82, at 188; Ruback, supra note 82, at 570.
84. See Williams v. Illinois, 399 U.S. 235, 239 (1970) (stating that “[t]he custom of imprisoning a convicted defendant for nonpayment of fines dates back to medieval England and has long
been practiced in this country”).
85. Derek A. Westen, Comment, Fines, Imprisonment, and the Poor: “Thirty Dollars or
Thirty Days,” 57 CAL. L. REV. 778, 783–84 (1969).
86. Id. at 784.
87. Id. at 785; Ruback & Bergstrom, supra note 82, at 249. Interestingly, as the punitive rationale for fines supplanted the settlement rationale, the language regarding fines switched from
“mak[ing] fine[s]” to “be[ing] fined.” Westen, supra note 85, at 785–86.
88. Logan & Wright, supra note 24, at 1194.
89. Id.
90. U.S. DEP’T OF JUSTICE, CIVIL RIGHTS DIV., INVESTIGATION OF THE FERGUSON POLICE
DEPARTMENT 10 (2015), http://www.justice.gov/crt/about/spl/documents/ferguson_findings_3-415.pdf.

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While fines are often the sole punishment for traffic offenses and some
other misdemeanors, for other offenses, fines supplement incarceration and
probation. 91 American courts of general jurisdiction impose fines in fortytwo percent of cases, while courts of limited jurisdiction assess fines in
eighty-six percent of cases. 92 Fines are assessed in thirty-eight percent of
all felony convictions in state courts.93 Judges typically impose fines at the
sentencing stage of a criminal case, without consideration of a defendant’s
earnings. 94
2. Restitution
Similarly, judges may also impose restitution charges at a defendant’s
sentencing. 95 Traditionally, governmental entities have been the recipients
of fines while victims have been the primary beneficiaries of restitution. 96
Initially, the purported rationale for restitution was to financially restore a
victim based on the economic damages a defendant’s actions had caused.97
The rationale for modern-day restitution now includes retribution and punishment. 98 All states permit restitution, and a Department of Justice study
found that state courts imposed restitution in eighteen percent of felony cas-

91. Michael Tonry & Mary Lynch, Intermediate Sanctions, 20 CRIME & JUST. 99, 127
(1996).
92. Ruback, supra note 82, at 570.
93. SEAN ROSENMERKEL, MATTHEW DUROSE & DONALD FAROLE, JR., U.S. DEP’T OF
JUSTICE, BUREAU OF JUSTICE STATISTICS, FELONY SENTENCES IN STATE COURTS, 2006 –
STATISTICAL TABLES 8 (2009), http://www.bjs.gov/content/pub/pdf/fssc06st.pdf.
94. Beckett & Harris, supra note 12, at 514–15; cf. Tonry & Lynch, supra note 91, at 128
(discussing the “day fine” system in Scandinavian countries, which takes the seriousness of the
crime and the defendant’s income into account when imposing a fine). For a discussion of the
“day-fine” system that bases fines on income level, see infra Part IV.A.2.
95. Cortney E. Lollar, What is Criminal Restitution?, 100 IOWA L. REV. 93, 101 (2014). A
detailed discussion of the historical development of restitution payments is beyond the scope of
this Article. For a more detailed discussion, see Richard E. Laster, Criminal Restitution: A Survey
of Its Past History and an Analysis of Its Present Usefulness, 5 U. RICH. L. REV. 71 (1970); Peggy
M. Tobolowsky, Victim Participation in the Criminal Justice Process: Fifteen Years After the
President’s Task Force on Victims of Crime, 25 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 21
(1999). For a collection of discussions regarding restitution, reconciliation, and restorative justice,
see CRIMINAL JUSTICE, RESTITUTION, AND RECONCILIATION (Burt Galaway & Joe Hudson eds.,
1990).
96. See R. Barry Ruback & Valerie Clark, Economic Sanctions in Pennsylvania: Complex
and Inconsistent, 49 DUQ. L. REV. 751, 756 (2011) (explaining the purpose of restitution).
97. Lollar, supra note 95, at 99–100; Ruback & Clark, supra note 96, at 756; see also
Ruback & Bergstrom, supra note 82, at 250 (characterizing the purpose of restitution as “doing
justice by having the offender compensate a victim for damages caused by the crime”).
98. Lollar, supra note 95, at 97–98 (stating that “criminal restitution has evolved from a primarily restorative mechanism to a primarily punitive one” and criticizing courts for not “affording
restitution the constitutional checks courts normally provide for punishment”); Ruback & Bergstrom, supra note 82, at 249 (stating that restitution also has a punishment aspect as it “embodies . . . the just deserts notion of offense-based penalties”).

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es. 99 Under federal law, restitution is mandatory for specific crimes if there
is an “identifiable victim.” 100 A defendant’s failure to make restitution
payments can result in revocation of probation and incarceration. 101
3. Fees 102
Fees differ from restitution and fines in many ways, including, when
they are assessed, who sets them, what they include, and why they are imposed. While fees imposed on those imprisoned for failure to pay civil
debts date back to colonial times, 103 the imposition of fees on inmates
charged with crimes in the United States did not begin until 1846, when
Michigan authorized counties to collect the costs of medical care from
prisoners. 104 Currently, fees on defendants can be imposed at any stage of
the criminal justice process, including pre-conviction, sentencing, incarceration, or supervision. 105 Moreover, while a judge typically determines fines
and restitution, other actors may be involved in setting fees, including

99. ROSENMERKEL ET AL., supra note 93, at 8; Ruback & Clark, supra note 96, at 756.
100. 18 U.S.C. § 3663A (2012) (mandating restitution in cases involving crimes of violence,
offenses against property, “tampering with consumer products,” “theft of medical products,” and
an “identifiable victim”); Lollar, supra note 95, at 103 (citing the Mandatory Victims Restitution
Act of 1996, Pub. L. No. 104-132 (codified as amended in scattered sections of 18 U.S.C.)).
101. Lollar, supra note 95, at 124. Under Bearden v. Georgia, 461 U.S. 660, 668 (1983), incarceration for failure to pay must be based on willful failure to pay; however, in practice, this
requirement has not been effectively applied. Lollar, supra note 95, at 124.
102. Commentators tend to treat costs and fees together; however, Ruback and Bergstrom
have suggested that a cost refers to “a blanket charge for program admission/participation,” while
a fee refers to “a specific, individual charge for a service.” Ruback & Bergstrom, supra note 82,
at 253. For purposes of this Article, the terms fees and costs are used interchangeably.
103. See supra notes 59–65 and accompanying text.
104. Lauren-Brooke Eisen, Paying for Your Time: How Charging Inmates Fees Behind Bars
May Violate the Excessive Fines Clause, 15 LOY. J. PUB. INT. L. 319, 319 (2014) (citing DALE
PARENT, NAT’L INST. OF JUSTICE, DEP’T OF JUSTICE, RECOVERING CORRECTIONAL COSTS
THROUGH
OFFENDER
FEES
1
(1990),
https://www.ncjrs.gov/pdffiles1/Digitization/125084NCJRS.pdf).
105. Levingston & Turetsky, supra note 82, at 189; Logan & Wright, supra note 24, at 1185–
86; Plunkett, supra note 64, at 59 (listing of costs may include charges for room and board, “prosecution, judicial proceedings, criminal defense, bail, booking, parole or probation supervision,
electronic monitoring, substance abuse treatment, [and] medical care” (footnotes omitted) (first
citing BANNON ET.AL., supra note 37, at 8; then citing MULLANEY, NAT'L INST. OF CORR., U.S.
DEP'T OF JUSTICE, ECONOMIC SANCTIONS IN COMMUNITY CORRECTIONS 7 (1988); then citing
Helen A. Anderson, Penalizing Poverty: Making Criminal Defendants Pay for Their CourtAppointed Counsel Through Recoupment and Contribution, 42 U. MICH. J.L. REFORM 323
(2009); then citing Kate Levine, Note, If You Cannot Afford a Lawyer: Assessing the Constitutionality of Massachusetts's Reimbursement Statute, 42 HARV. C.R.-C.L. L. REV. 191 (2007); then
citing MULLANEY, supra, at 7; AM. CIVIL LIBERTIES UNION, supra note 12, at 30; then citing
MULLANEY, supra, at 8; then citing NAT'L INST. OF CORR., U.S. DEP'T OF JUSTICE, FEES PAID BY
JAIL INMATES: FINDINGS FROM THE NATION'S LARGEST JAILS 2 (I997); and then citing BARBARA
KRAUTH & KARIN STAYTON, U.S. DEP'T OF JUSTICE, NAT'L INST. OF CORR., FEES PAID BY JAIL
INMATES: FEE CATEGORIES, REVENUES, AND MANAGEMENT PERSPECTIVES IN A SAMPLE OF U.S.
JAILS 15 (Connie Clem ed., 2005))).

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prosecutors, police, prison officials, and other criminal justice agencies 106
as well as private companies that are the beneficiaries of outsourcing. 107
Pre-conviction assessments may include fees for arrest, issuance of
warrant, booking, fingerprinting, lab testing, pretrial detention, jury,
application for a public defender, bail, deferred prosecution agreement, pretrial abatement, and rental of monitoring devices.108 Application fees for
public defenders exist in the majority of states. 109 The application fees vary
by state and may vary based on the offense at issue. 110 The typical range is
$25 to $100. 111 Some jurisdictions impose pretrial supervision or conditional bond fees. 112 The assessment of pre-judgment fees is not dependent
upon conviction of the defendant.113
At sentencing, charges may include fees for pre-sentence and investigatory reports, court administration, designated funds, and reimbursement
for the public defender and the prosecutor. 114
Designated funds may
finance crime stopper programs, retirement for police officers, courtroom
technology, and a myriad of services unrelated to the underlying criminal
charges. 115 For example, fees in Allegan County, Michigan help fund the
county employees’ fitness facility. 116
Charges incurred and assessed during incarceration include fees for
room and board, health care, haircuts, telephone, and work-release programs. 117 At least forty-three states allow charges for room and board and

106. Levingston & Turetsky, supra note 82, at 189; Logan & Wright, supra note 24, at 1185–
96.
107. Logan & Wright, supra note 24, at 1193.
108. RAM SUBRAMANIAN ET AL., VERA INST. OF JUSTICE, INCARCERATION’S FRONT DOOR:
THE
MISUSE
OF
JAILS
IN
AMERICA
15–16
(2015),
http://www.vera.org/sites/default/files/resources/downloads/incarcerations-front-door-report.pdf;
Levingston & Turetsky, supra note 82, at 189; Logan & Wright, supra note 24, at 1186–89;
Ruback & Bergstrom, supra note 82, at 254; Shapiro, supra note 26.
109. Ronald F. Wright & Wayne A. Logan, The Political Economy of Application Fees for
Indigent Criminal Defense, 47 WM. & MARY L. REV. 2045, 2052 (2006).
110. Id. at 2052–53.
111. Id. at 2046. Some states allow waiver of these fees “in cases of extreme poverty.” Logan
& Wright, supra note 24, at 1189.
112. HUMAN RIGHTS WATCH, supra note 30, at 32.
113. Logan & Wright, supra note 24, at 1186 (noting that “[t]he presumption of innocence
does not slow the onset of LFOs”); Bridget McCormack, Economic Incarceration, 25 WINDSOR
Y.B. ACCESS TO JUST. 223, 230 (2007) (noting that fees imposed “as conditions of . . . bond while
the case is pending . . . are not refunded to defendants who are acquitted of their underlying
charge”); Wright & Logan, supra note 109, at 2054.
114. Levingston & Turetsky, supra note 82, at 189; Logan & Wright, supra note 24, at 1190–
91; Shapiro, supra note 26.
115. Levingston & Turetsky, supra note 82, at 189; Logan & Wright, supra note 24, at 1190–
91.
116. Shapiro, supra note 26.
117. SUBRAMANIAN ET AL., supra note 108, at 15; Levingston & Turetsky, supra note 82, at
189; Logan & Wright, supra note 24, at 1192–93; Shapiro, supra note 26.

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thirty-five states permit charges for medical care.118 Telephone charges
have been a “significant moneymaker” with “rates far above the prevailing
market—generat[ing] millions of dollars annually.” 119
Charges assessed after release may include fees for probation and parole supervision, drug testing, vehicle interlock devices, electronic monitoring, mandatory treatment, required classes, and expungement. 120 Forty-four
states charge defendants for probation and parole services.121 Probation is a
common alternative to incarceration for misdemeanor offenses. 122 All of
the states, except for Hawaii, assess defendants for monitoring devices. 123
These devices may track location or alcohol intake of defendants. The sophistication of the technology used and associated costs of these devices
range considerably. Monthly charges may range from “$180 to $360.” 124
Additionally, defendants are typically charged a “start-up” fee of up to
$80. 125 Similarly, defendants may be assessed mandatory drug testing fees
of $1250 per year. 126
Court costs and fees help reimburse the burgeoning expenses incurred
by courts, jails, prisons, and those appointed to supervise, monitor, and
even represent defendants. 127 Their purpose is generally recognized as reimbursement as opposed to punishment, victim compensation, rehabilitation, or deterrence.128 “Offender-funding” has been used to identify the
process of making defendants pay for these expenses. 129

118. EISEN, supra note 39, at 4.
119. Logan & Wright, supra note 24, at 1192–95; see also EISEN, supra note 39, at 2 (noting
that an inmate’s “short telephone call home can cost as much as $20”); SUBRAMANIAN ET AL.,
supra note 108, at 15. In October 2015, the Federal Communications Commission issued an order
to cap rates on inmate calls beginning in 2016. See Press Release, Fed. Comm. Commission (Oct.
22, 2015), FCC Takes Next Big Steps in Reducing Inmate Calling Rates,
http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db1022/DOC-335984A1.pdf.
120. HUMAN RIGHTS WATCH, supra note 30, at 37; Levingston & Turetsky, supra note 82, at
189; Shapiro, supra note 26.
121. Shapiro, supra note 26; State-by-State Court Fees, NPR (May 19, 2014),
http://www.npr.org/2014/05/19/312455680/state-by-state-court-fees.
122. HUMAN RIGHTS WATCH, supra note 30, at 12.
123. Shapiro, supra note 26; State-by-State Court Fees, supra note 121.
124. HUMAN RIGHTS WATCH, supra note 30, at 33.
125. Id.
126. Id. at 36.
127. Beckett & Murakawa, supra note 23, at 227; Ruback, supra note 82, at 570.
128. See BANNON ET AL., supra note 37, at 4. Some commentators have argued that fees may
also serve compensatory and punitive purposes as well as reimbursement purposes. See, e.g.,
Ruback & Bergstrom, supra note 82, at 249 (arguing that costs and fees “seek reparations for society as a victim . . . and require offenders to pay substantial (and increasing) amounts in an effort
to hold them accountable for their actions”). Additionally, Beckett and Harris argue that fees are
“de facto penalties” because fees are often included when defining fines, fees are often collected
in the same manner as fines, and fees often have the same adverse impact that fines have on defendants. Beckett & Harris, supra note 12, at 510.
129. See, e.g., HUMAN RIGHTS WATCH, supra note 30, at 1.

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The fees charged to defendants can surpass the fines or restitution
charges assessed. 130 This is particularly true for low-level offenses where
“court costs and other usage fees have proliferated and grown to the point
that they can eclipse the fines imposed.” 131 For example, in California, the
fine for failure to show proof of vehicle insurance is $100; however, fee assessments add another $390, and additional fees of $325 are added for failure to appear or pay, resulting in a total citation charge of $815. 132 As with
fines and restitution, failure to pay fees can be grounds for revocation of
probation and incarceration. 133
B. Prohibitions Against Debtors’ Prisons for Criminal Justice Debt
Recognizing the concerns that arise from incarcerating individuals
based on their inability to pay debt, courts and legislators have sought to establish restrictions to prevent the use of debtors’ prisons for criminal justice
debt.
1. Case Law
Concerns about unequal treatment of the poor in the criminal justice
system are not a new phenomenon. In Griffin v. Illinois, 134 the United
States Supreme Court recognized “Providing equal justice for poor and rich,
weak and powerful alike is an age-old problem.” 135 The Court remanded
this case because the appeals court had denied appeals to criminal defendants who had been unable to pay for trial transcripts. 136 The Court, relying
on due process and equal protection concerns, concluded that “[i]n criminal
trials a State can no more discriminate on account of poverty than on
account of religion, race, or color.” 137 In Mayer v. City of Chicago, 138 the
Court extended Griffin to defendants charged with misdemeanors where the
sentences were limited to fines. 139 As the Court stated, “The size of the

130. Logan & Wright, supra note 24, at 1177.
131. HUMAN RIGHTS WATCH, supra note 30, at 14.
132. ALEX BENDER ET AL., NOT JUST A FERGUSON PROBLEM: HOW TRAFFIC COURTS DRIVE
INEQUALITY IN CALIFORNIA 10 (2015), http://www.lccr.com/wp-content/uploads/Not-Just-aFerguson-Problem-How-Traffic-Courts-Drive-Inequality-in-California-4.8.15.pdf
(citing
JUDICIAL COUNCIL OF CAL., UNIFORM BAIL & PENALTY SCHEDULES 16 (2015),
http://www.courts.ca.gov/documents/2015-JC-BAIL.pdf). Additionally, failure to pay often results in driver’s license suspension. Id. at 15.
133. BANNON ET AL., supra note 37, at 21; Beckett & Harris, supra note 12, at 524.
134. 351 U.S. 12 (1956).
135. Id. at 16.
136. Id. at 20.
137. Id. at 17.
138. 404 U.S. 189 (1971).
139. Id. at 195–97.

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defendant’s pocketbook bears no more relationship to his guilt or innocence
in a nonfelony than in a felony case.” 140
In the landmark case, Gideon v. Wainwright, 141 the Court held that the
Sixth Amendment requires states to provide counsel for indigent felony defendants. 142 To support its ruling, the Court said, “in our adversary system
of criminal justice, any person haled into court, who is too poor to hire a
lawyer, cannot be assured a fair trial unless counsel is provided for him.” 143
In 1970, the Court in Williams v. Illinois 144 recognized “the greatly increased use of fines as a criminal sanction has made nonpayment a major
cause of incarceration in this country.” 145 The Court held that under the
equal protection provisions of the Fourteenth Amendment, the state could
not extend the incarceration of an individual who was unable to pay his
criminal justice debt beyond the maximum statutory term. 146 Williams had
received the maximum sentence for a petty theft conviction: one year in
prison and a $500 fine. 147 He was also assessed $5 in court costs. 148 Under
Illinois law, at the end of their sentences, defendants were required to remain in jail at a daily rate of $5 to pay off their monetary obligations.149
For Williams, who was unable to pay the $505 in fines and costs, this translated to an additional 101 days in jail. 150
Relying on concerns expressed in Griffin, the Court found that it
would be “impermissible discrimination” to allow imprisonment beyond the
maximum statutory term for defendants who were unable to pay criminal
justice debt. 151 Specifically, the Court found that “once the State has
defined the outer limits of incarceration necessary to satisfy its penological
interests and policies, it may not then subject a certain class of convicted
defendants to a period of imprisonment beyond the statutory maximum
solely by reason of their indigency.” 152
The following year, the Court applied the reasoning from Williams to a
situation where the legislature had limited sentencing to fines. In Tate v.
Short, 153 a Texas corporation court convicted the defendant of nine traffic

140.
141.
142.
143.
144.
145.
146.
147.
148.
149.
150.
151.
152.
153.

Id. at 196.
372 U.S. 335 (1963).
Id. at 343–44.
Id. at 344.
399 U.S. 235 (1970).
Id. at 240.
Id. at 240–41.
Id. at 236.
Id.
Id. (citing ILLINOIS CRIMINAL CODE OF 1961 § 1–7(k)).
Id. at 236–37.
Id. at 240–41.
Id. at 241–42.
401 U.S. 395 (1971).

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offenses and assessed fines totaling $425. 154 The defendant was indigent
and unable to pay the fines. 155 The trial court, relying on Texas law that
permitted incarceration at a rate of $5 per day to pay off fines, sentenced
him to eighty-five days. 156 Upon review, the United States Supreme Court
found that converting a fine-only restriction to a prison sentence for an indigent unable to pay the fine violated the Equal Protection Clause.157 The
Court added that since the legislature had restricted punishment in traffic
offenses to fines, imprisonment of an indigent would not “further any penal
objective of the State.” 158 Moreover, according to the Court, instead of
generating revenue, imprisonment would “saddle[] the State with the cost of
feeding and housing him for the period of his imprisonment.” 159
In Bearden v. Georgia, 160 the Court relied on Williams and Tate in
holding that a court should assess an individual’s ability to pay before revoking probation and incarcerating him for failure to pay a fine or restitution. 161 In 1980, Danny Bearden pleaded guilty to charges of burglary and
theft. 162 The Georgia trial court, relying on the state’s first offender’s act,
deferred his proceedings and sentenced him to three years’ probation. 163
The court also assessed a $500 fine and $250 in restitution as a condition of
probation. 164 Bearden paid $200 upfront and agreed to pay the remaining
$550 within four months. 165 Approximately one month later, Bearden lost
his job, leaving him with no other sources of income. 166 Despite his efforts,
Bearden, who was illiterate and had not completed high school, was unable
to find another job. 167 Because he failed to pay, the trial court revoked
Bearden’s probation and ordered that he be incarcerated for the remainder
of the probationary term. 168
In evaluating the revocation, the Court determined that the original
probation decision reflected a conclusion “that the State’s penological interests do not require imprisonment.” 169 The Court found that “[b]y
154. Id. at 396.
155. Id.
156. Id. at 396–97 & n.3 (first citing TEX. CODE OF CRIM. PROC., art. 45.53 (1966); then citing
HOUS. CODE § 35-8).
157. Id. at 399.
158. Id.
159. Id.
160. 461 U.S. 660 (1983).
161. Id. at 667–72.
162. Id. at 662.
163. Id.
164. Id.
165. Id.
166. Id.
167. Id. at 662–63.
168. Id. at 663, 674.
169. Id. at 670.

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sentencing petitioner to imprisonment simply because he could not pay the
fine, without considering the reasons for the inability to pay or the propriety
of reducing the fine or extending the time for payments or making
alternative orders, the court automatically turned a fine into a prison
sentence.” 170 Accordingly, the Court established that before incarcerating
an individual, courts should investigate the reasons for non-payment. 171 If
it turns out “the probationer has made all reasonable efforts to pay the fine
or restitution, and yet cannot do so through no fault of his own, it is
fundamentally unfair to revoke probation automatically without considering
whether adequate alternative methods of punishing the defendant are
available.” 172 Similarly, state courts have also recognized the need to assess
individuals’ financial condition before incarcerating them because of their
inability to pay criminal justice debt.173
2. Legislation and Court Rules
In addition to case law, states have also adopted legislation and court
rules to codify the protections established by Bearden. For example, the
Oklahoma Rules of Criminal Procedure require that district and municipal
courts hold a hearing and make a determination of a “defendant’s ability to
immediately satisfy the fines and costs.” 174 Under New Mexico law, the
court may use contempt procedures for failure to make payment on criminal
justice debt, and a defendant, as a defense, can assert that he did not
willfully refuse to pay or that he made a good-faith effort to pay. 175 Texas
law provides that the court shall allow installment payments if it determines
that a misdemeanant is unable to pay assessed fines and costs immediately. 176

170. Id. at 674.
171. Id. at 672.
172. Id. at 668–69 (footnote omitted).
173. See, e.g., Massey v. Meadows, 321 S.E.2d 703, 704 (Ga. 1984) (holding “that where
payment of a fine is made a condition precedent to probation, a defendant’s probation may not be
revoked or withheld because of his failure to pay the fine without a showing of willfulness on his
part or inadequacy of alternative punishments”); State v. Monson, 576 So.2d 517, 518 (La. 1991)
(citing Bearden and holding that “[a]n indigent person may not be incarcerated because he is unable to pay a fine which is part of his sentence”); State v. Nason, 233 P.3d 848, 853 (Wash. 2010)
(en banc) (finding an “auto-jail provision” was void because it “call[ed] for incarceration without
a contemporaneous inquiry into the offender’s ability to pay”). But see State v. Nordahl, 2004 ND
106, ¶ 26, 680 N.W.2d 247, 253 (holding that Bearden does not apply when restitution is part of a
plea agreement). For a discussion of the applicability of Bearden to plea bargains, see Ann K.
Wagner, Comment, The Conflict over Bearden v. Georgia in State Courts: Plea-Bargained Probation Terms and the Specter of Debtors’ Prison, 2010 U. CHI. LEGAL F. 383.
174. OKLA. R. CRIM. P. 8.1 (2003).
175. N.M. STAT. ANN. § 31-12-3(C)–(D) (2009).
176. TEX. CODE CRIM. PROC. ANN. art. 42.15(c) (West 2006 & Supp. 2014).

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III. CRIMINAL JUSTICE DEBT AND THE RESURGENCE OF DEBTORS’ PRISONS
Despite the statutory and case law restrictions, the growth in criminal
justice debt has been associated with a dramatic increase in arrest and incarceration of defendants who are unable to pay legal financial obligations.
The same concerns that led to calls for the abolition of debtors’ prisons in
Europe have now returned as the current system is increasingly charging
defendants for services provided, is unfairly discriminating against the poor,
and is creating conflicts of interest in the assessment and collection of
criminal justice debt. This Part will address the growth in criminal justice
debt, the use of debtors’ prisons, and these renewed concerns.
A. The Growth in Criminal Justice Debt and Offender Funding
Criminal justice debt has increased dramatically during the last forty
years. Courts have imposed legal financial obligations on “[sixty-six percent] of felons sentenced to prison, and more than [eighty percent] of other
felons and misdemeanants.” 177 Additionally, other criminal agencies—
including jails, prisons, and public defender offices—charge fees to defendants. 178 Commentators estimate “that tens of millions of U.S. residents
have been assessed financial penalties by the courts and other criminal
agencies.” 179
The most common reasons asserted for the growth in monetary sanctions are the expansion in the use of incarceration since 1970 and budgetary
pressures at the state and local level. 180 As the National Research Council
concluded in its 2014 report on incarceration, “The growth in incarceration
rates in the United States over the past [forty] years is historically unprecedented and internationally unique.” 181 The United States is the undisputed
leader in the use of incarceration. 182 Nearly one-quarter of the prisoners in
the world are in the United States, even though more than ninety-five percent of the world’s population is outside the United States. 183 Since the
1970s, the United States has more than quadrupled its rate of incarceration. 184

177. Beckett & Harris, supra note 12, at 515.
178. Id.; Harris, Evans & Beckett, supra note 26, at 1769–71.
179. Beckett & Harris, supra note 12, at 516.
180. Katzenstein & Nagrecha, supra note 26, at 557–59; Shapiro, supra note 26.
181. NAT’L RESEARCH COUNCIL, supra note 14, at 2.
182. Id.; Gottschalk, supra note 13, at 483.
183. CHETTIAR ET AL., supra note 14, at 3. The general issue of mass incarceration is beyond
the scope of this Article. For more detailed information, see Gottschalk, supra note 13; NAT’L
RESEARCH COUNCIL, supra note 14.
184. NAT’L RESEARCH COUNCIL, supra note 14, at 1.

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CHARGING THE POOR

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Approximately one percent of adults are incarcerated. 185 Between
1983 and 2013 annual admissions to jails increased from 6 million to 11.7
million while the average daily number of jail inmates rose from 224,000 to
731,000. 186 Increases in the number of people on probation and parole have
contributed to the growth in incarceration as a result of failures to abide by
conditions of parole or probation. 187 At the end of 2013, more than 4.75
million individuals were on probation or parole. 188 As a result, approximately one in every thirty-five adults was subject to incarceration, parole,
or probation. 189
High incarceration rates have created burdens on state and local budgets to fund the expenses of incarceration, parole, and probation. 190 In response, many states and localities have turned to offender-based funding. 191
Additionally, some jurisdictions use criminal justice debt to fund expenses
outside of the criminal justice system. 192 For example, the Department of
Justice’s report on Ferguson reported that the city’s 2015 budget reflected
that collections of fines and fees would account for more than twenty-three
percent of the city’s projected general fund revenues.193
While all monetary assessments have increased, the largest percentage
increase has been in fees. 194 A recent NPR survey found that since 2010,

185. See LAUREN E. GLAZE & DANIELLE KAEBLE, U.S. DEP’T OF JUSTICE, BUREAU OF
JUSTICE STATISTICS, CORRECTIONAL POPULATIONS IN THE UNITED STATES, 2013, at 2 (2014),
http://www.bjs.gov/content/pub/pdf/cpus13.pdf (reporting an estimated 2,220,300 persons incarcerated as of 2013).
186. SUBRAMANIAN ET AL., supra note 108, at 7–8.
187. NAT’L RESEARCH COUNCIL, supra note 14, at 40–41. Id. at 41; Beckett & Harris, supra
note 12, at 524 (“nonpayment of monetary sanctions leads to a significant number of warrants,
arrests, probation revocations, jail stays, and prison admissions in locales across the country”).
188. GLAZE & KAEBLE, supra note 185, at 2.
189. Id. at 1–2 (reporting yearend numbers from 2012 and 2013).
190. EISEN, supra note 39, at 2.
191. AM. CIVIL LIBERTIES UNION, supra note 12, at 8 (stating that “[s]tates and counties,
hard-pressed to find revenue to shore up failing budgets, see a ready source of funds in defendants
who can be assessed LFOs”); HUMAN RIGHTS WATCH, supra note 30, at 13 (stating that “some
localities expect their criminal courts to fund most or even all of their own operations with fines
and fees extracted from defendants and offenders”).
192. HUMAN RIGHTS WATCH, supra note 30, at 13–14 (asserting that some jurisdictions “[expect] their criminal courts to earn a profit” and warning of the danger that may occur when
“courts . . . focus more on harvesting money from the people who appear before them than on the
rational and humane administration of justice”). For example, in the Missouri cities of Bel-Ridge,
Ferguson, and Florissant, fines and fees represented the first, second, and third top sources of income, respectively. THOMAS HARVEY ET AL., ARCHCITY DEFENDERS: MUNICIPAL COURTS
WHITE
PAPER
28,
31,
34
(2014),
http://www.archcitydefenders.org/wpcontent/uploads/2014/11/ArchCity-Defenders-Municipal-Courts-Whitepaper.pdf.
193. U.S. DEP’T OF JUSTICE, supra note 90, at 10 (stating that the projected revenue from fines
and fees was $3.09 million, while total expected revenue was $13.26 million).
194. Harris, Evans & Beckett, supra note 26, at 1769–71; McCormack, supra note 113, at 229
(recognizing the “recent innovations in fee collection”).

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forty-eight states have increased their fees.195 A nationwide survey found
that the percentage of state and federal felony inmates with court-imposed
monetary sanctions increased from 25% in 1991 to 66% in 2004.196
Between 1991 and 2004, the percentage of felony inmates assessed
restitution and fees increased from approximately 10% to approximately
25% and 35%, respectively, while the percentage of felons assessed fees
increased from approximately 10% to over 50%. 197 Moreover, this data underestimates the total amount of monetary sanctions, as it only covers courtimposed assessments on felons sentenced to prison. 198 Additional statistics
reflect, “felons sentenced to probation and misdemeanants are more likely
than felons sentenced to prison to receive monetary sanctions.” 199 Nonjudicial sources, including prosecutors and prison officials, also assess
fees. 200
Responding to budgetary concerns, many states and localities have also outsourced traditional public services, such as prison, probation, monitoring, and collection services to private companies.201 The growth in privatization of state prisons from 1999 to 2010 has been described as a
“seismic shift.” 202 During this time span, the percentage of prisoners in private state prisons increased by 40% while the total prison population grew
by 18%. 203
Similarly, many jurisdictions now rely on private probation companies
to monitor and supervise defendants, and these firms will typically charge

195. State-by-State Court Fees, supra note 121. Alaska and North Dakota are the only states
to not increase their fees. Id. The District of Columbia has also not increased its fees since 2010.
Id.
196. Harris, Evans & Beckett, supra note 26, at 1769.
197. Id. at 1769–70.
198. Id. at 1770–71. Defendants may be assessed fees by sources other than the court. Beckett & Harris, supra note 12, at 513 (stating that a “broad range of criminal justice agencies” may
levy fees including state departments of corrections, jails, and private companies authorized to
supervise and board defendants).
199. Harris, Evans & Beckett, supra note 26, at 1770.
200. Id. at 1769–71; Levingston & Turetsky, supra note 82, at 189; Logan & Wright, supra
note 24, at 1185–96.
201. Logan & Wright, supra note 24, at 1193. For a discussion of the growth in the privatization of prisons, see Hadar Aviram, The Inmate Export Business and Other Financial Adventures:
Correctional Policies for Times of Austerity, 11 HASTINGS RACE & POVERTY L.J. 111, 115–33
(2014). For a general discussion of the private probation industry, see HUMAN RIGHTS WATCH,
supra note 30, at 15–21.
202. Aviram, supra note 201, at 115.
203. Id. (citing CODY MASON, THE SENTENCING PROJECT, TOO GOOD TO BE TRUE: PRIVATE
PRISONS
IN
AMERICA
1
(2012),
http://
sentencingproject.org/doc/publications/inc_Too_Good_to_be_True.pdf. Aviram also noted that the growth in
the number of federal prisoners in private prisons was even more dramatic as it was over 780%.
Id.

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defendants enrollment fees as well as monthly supervisory fees. 204 Privatization of probation services reportedly began in the 1970s when Florida
delegated monitoring of misdemeanants on probation to the Salvation Army. 205 Currently, more than 1000 courts located in at least twelve states
annually use private probation companies to monitor “[h]undreds of thousands of Americans.” 206 Often, the companies will market their services to
local entities as “zero cost solution[s],” claiming that they will fund their
operations solely based on funds received from defendants. 207 Under these
“offender-funded” probation models, private companies claim that public
expenditures are not necessary for their services.208
Determining the total amount of supervisory fees that private probation companies collect is difficult because the companies are typically privately held, and states do not require reporting of their collections.209 Human Rights Watch, an independent international organization, found that
$40 million was a conservative estimate of the annual revenue that private
probation companies in Georgia collected in 2013. 210 The private probation
companies consist of both small and large firms. 211 Judicial Correction
Services and Sentinel Offender Services are two of the largest private probation companies.212 The collection practices of these businesses have been
the subject of litigation and criticism. 213 For example, a settlement with

204. EISEN, supra note 39, at 2; Aviram, supra note 201, at 132; Logan & Wright, supra note
24, at 1193.
205. Hannah Rappleye & Lisa Riordan Seville, The Town That Turned Poverty into a Prison
Sentence, THENATION (Mar. 14, 2014), http://www.thenation.com/article/178845/town-turnedpoverty-prison-sentence.
206. HUMAN RIGHTS WATCH, supra note 30, at 16; Rappleye & Seville, supra note 205. The
states using private probation services include Alabama, Colorado, Florida, Georgia, Idaho, Michigan, Mississippi, Missouri, Montana, Tennessee, Utah, and Washington. HUMAN RIGHTS
WATCH, supra note 30, at 16 n.20.
207. HUMAN RIGHTS WATCH, supra note 30, at 14–15.
208. Id. at 15.
209. Id. at 18.
210. Id. at 18–19. For more information about private probation companies in Georgia, see
Sarah Dolisca Bellacicco, Note, Safe Haven No Longer: The Role of Georgia Courts and Private
Probation Companies in Sustaining a De Facto Debtors’ Prison System, 48 GA. L. REV. 227,
238–46 (2013).
211. HUMAN RIGHTS WATCH, supra note 30, at 19.
212. Id. at 20.
213. Id. For a description of some of the allegations against Judicial Correction Services and
Sentinel Offender Services, see Sentinel Offender Svcs. v. Glover, 766 S.E.2d 456, 460 (Ga.
2014) (an appeal involving thirteen individual civil actions); Complaint, Thompson v. Dekalb
Cnty.,
No.
1:15-mi-99999-UNA
(N.D.
Ga.
Jan.
29,
2015),
https://www.aclu.org/sites/default/files/assets/2015.01.29_filed_thompson_complaint.pdf [hereinafter Thompson Complaint] (a federal suit filed by the ACLU on behalf of Kevin Thompson in
Atlanta against DeKalb County, the Chief Judge of the DeKalb County’s Recorder Court, and Judicial Correction Services, Inc.); Rappleye & Seville, supra note 205.

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Montgomery, Alabama requires a three-year ban on contracts with private
probation companies. 214
B. The Rise of Modern-Day Debtors’ Prisons
Despite the statutory and case law prohibitions, the incarceration of
indigents for failure to pay has increased along with the growth of criminal
justice debt. 215 Failure to pay LFOs has resulted in “a significant number of
warrants, arrests, probation revocations, jail stays, and prison admissions in
locales across the country.” 216 For example, one estimate is that half the arrests and up to one-quarter of the incarcerations in Ohio in 2010 were for
fines and costs. 217 From July 2004 to July 2013, the percentage of monthly
bookings in the Tulsa Jail involving warrants for the failure to pay criminal
justice debt for state, non-felony charges increased from eight to twentynine percent. 218 Other examples include reports that fifteen percent of the
inmates in one county in Washington were incarcerated for failure to pay
criminal justice debt, while seventeen percent of pre-trial commitments in
Rhode Island were due to failure to pay court debt. 219 Moreover, a 2010
study of the fifteen states with the highest prison populations found that all
of the states made criminal justice debt a condition of supervision and
arrested individuals for failure to pay or appear at hearings related to the
failure to pay. 220 In many cases, defendants were incarcerated for days before any hearing on ability to pay. 221 Similarly, a study of municipalities in
Missouri found that people who could not afford a bond after arrest for a
failure to pay, could “spend as much as three weeks in jail waiting to see a
judge.” 222

214. Agreement to Settle Injunctive and Declaratory Relief Claims ¶ 8, Mitchell v. City of
Montgomery,
No.
2:14-cv-00186-MHT-CSC
(M.D.
Ala.
Nov.
17,
2014),
http://media.al.com/opinion/other/montgomeryDoc%2051-1%20%20Settlement%20of%20Injunctive%20and%20Declaratory%20Claims%2011-17-2014.pdf
[hereinafter Montgomery Settlement].
215. AM. CIVIL LIBERTIES UNION, supra note 12, at 5.
216. Beckett & Harris, supra note 12, at 524.
217. AM. CIVIL LIBERTIES UNION, supra note 12, at 50 (citing the estimate of Glen Dewar, a
former Montgomery County Public Defender).
218. Casey Smith & Cary Aspinwall, Increasing Number Going to Jail for Not Paying Fines,
TULSAWORLD (Nov. 3, 2013), http://www.tulsaworld.com/news/local/increasing-number-goingto-jail-for-not-paying-fines/article_8b8d2229-c7ad-5e7f-aea2-baeb13390880.html.
219. Beckett & Harris, supra note 12, at 523–24 (citing RHODE ISLAND FAMILY LIFE CTR.,
COURT DEBT & RELATED INCARCERATION IN RHODE ISLAND 4 (2007),
http://www.realcostofprisons.org/materials/Court_Debt_and_Related_Incarceration_RI.pdf).
220. BANNON ET AL., supra note 37, at 20.
221. Id.
222. HARVEY ET AL., supra note 192, at 9.

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In many cases, courts have ignored or weakened the ability to pay
analysis required by legislation and case law.223 Often courts do not make
any determinations of an individual’s ability to pay. 224 A study that focused
on the municipal courts in the Missouri cities of Bel-Ridge, Florissant, and
Ferguson found that the courts “rarely” inquired into defendants’ ability to
pay. 225 The failure to inquire violates Missouri law that courts “shall, insofar as practicable, proportion the fine to the burden that payment will impose in view of the financial resources of an individual.” 226
In February 2015, Equal Justice Under Law, ArchCity Defenders, and
the Saint Louis University School of Law filed federal class action
complaints against the Missouri cities of Ferguson and Jennings asserting
violations of the constitutional rights of indigents who were imprisoned
because they were unable to pay criminal justice debt arising from minor
offenses. 227 The offenses included traffic tickets.228 Describing the municipal jails as “debtors’ prison[s],” 229 the complaints allege that the plaintiffs
have been relegated to overcrowded, unsafe, and unsanitary conditions and
denied medication and proper nutrition. 230 The complaints describe suicides and suicide attempts by indigent individuals unable to make the necessary payments to be released from confinement.231 The complaints assert
that the cities have violated federal and state law by creating a policy and
practice of jailing indigents without determining their ability to pay criminal justice debt or considering alternatives to incarceration.232 The

223. AM. CIVIL LIBERTIES UNION, supra note 12, at 5 (“courts across the United States routinely disregard the protections and principles the Supreme Court established in Bearden v. Georgia”).
224. BANNON ET AL., supra note 37, at 21 (indicating that “defenders in at least five of the [fifteen] surveyed states reported instances where they believed courts had either failed to consider
ability to pay altogether or used an unreasonable standard for determining ability to pay”).
225. HARVEY ET AL., supra note 192, at 3, 9; see also AM. CIVIL LIBERTIES UNION OF N.H.,
DEBTORS’
PRISONS
IN
NEW
HAMPSHIRE
1–2
(2015),
http://aclu-nh.org/wpcontent/uploads/2015/09/Final-ACLU-Debtors-Prisons-Report-9.23.15.pdf (finding that “in 2013
New Hampshire judges jailed people who were unable to pay fines and without conducting a
meaningful ability-to-pay hearing in an estimated 148 cases”).
226. U.S. DEP’T OF JUSTICE, supra note 90, at 53 (quoting MO. REV. STAT. § 560.026 (2012)).
227. Ferguson Complaint, supra note 1, ¶ 1; Class Action Complaint ¶ 1, Jenkins v. City of
Jennings, No. 14:15-cv-00252 (E.D. Mo. Feb. 8, 2015), http://equaljusticeunderlaw.org/wp/wpcontent/uploads/2015/02/Complaint-Jennings-Debtors-Prisons-FILE-STAMPED.pdf [hereinafter
Jennings Complaint].
228. Ferguson Complaint, supra note 1, ¶ 1; Jennings Complaint, supra note 227, ¶ 1.
229. Ferguson Complaint, supra note 1, ¶ 6; Jennings Complaint, supra note 227, ¶ 7.
230. Ferguson Complaint, supra note 1, ¶ 2; Jennings Complaint, supra note 227, ¶ 2.
231. Ferguson Complaint, supra note 1, ¶¶ 122, 206 n.21 (noting “[a]t least four suicides and
suicide attempts by people held because they were too poor to pay for their release have occurred
in local municipal jails just in the past five months”); Jennings Complaint, supra note 227, ¶¶ 3,
238 n.21 (same).
232. Ferguson Complaint, supra note 1, ¶¶ 9, 164; Jennings Complaint, supra note 227, ¶¶ 10,
186.

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complaints further allege that over the last five years the cities have
improperly incarcerated hundreds of indigent individuals for non-payment
of criminal justice debt. In addition, the cities allegedly placed thousands
of indigents on payment plans for criminal justice debt for minor offenses
who are now under threat of arrest and incarceration for failure to pay. 233
The complaints also allege that the cities have failed to provide adequate
representation to those incarcerated.234 City officials from Ferguson dispute
the “accuracy of many of the allegations” and have stated that the city’s
policy is to “not to discuss lawsuits that are pending in litigation.”235 Since
the February 2015 filings in Ferguson and Jennings, at least seven other
lawsuits alleging the operation of debtors’ prisons by municipalities have
been filed.236
In instances where courts do have hearings, they often rely on broad
definitions of willfulness to justify a finding that non-payment is based on
willful failure rather than inability to pay. 237 For example, public defenders
claim that some judges have failed to conduct hearings properly and have
found willful failure because non-paying defendants had admitted to smoking or having cable television. 238
Moreover, indigents often do not have counsel at these hearings. 239 In
some states, non-payment is treated as civil contempt, and defendants may
not have a right to counsel. 240 In other cases, as a practical matter, defend-

233. Ferguson Complaint, supra note 1, ¶¶ 213–15; Jennings Complaint, supra note 227,
¶¶ 246–48.
234. Ferguson Complaint, supra note 1, ¶ 215; Jennings Complaint, supra note 227, ¶ 248.
235. Press
Release,
City
of
Ferguson
(Feb.
9,
2015),
https://localtvktvi.files.wordpress.com/2015/02/ferguson-media-statement-regarding-lawsuit.pdf.
236. See Class Action Complaint, supra note 12, ¶¶ 1–2 (federal lawsuit filed in October 2015
against the City of Austin, Texas alleging incarceration of individuals unable to pay criminal justice debt); Shapiro, supra note 12 (identifying six other lawsuits alleging debtors’ prisons filed
against municipalities in September and October 2015).
237. Beckett & Harris, supra note 12, at 526 (stating that “the definition of ‘willful’ nonpayment that is emerging in case law is as broad as the legal definition of discrimination is narrow”).
238. BANNON ET AL., supra note 37, at 21–22; see also Ohio State Bar Ass’n v. Goldie, 119
Ohio St. 3d 428, 2008-Ohio-4606, 894 N.E.2d 1226, at ¶¶ 17–18 (involving the public reprimand
of a judge who failed to follow the state’s requirements for determining ability to pay before incarcerating a defendant for failure to pay a fine).
239. See, e.g., AM. CIVIL LIBERTIES UNION OF N.H., supra note 225, at 1–2 (identifying lack
of representation in hearings in New Hampshire). Additionally, a recent class action complaint
filed against the City of Biloxi, Mississippi, also alleges constitutional violations for incarcerating
defendants for failure to pay LFOs by not holding ability to pay hearings and by not providing
indigent defendants with court-appointed counsel. Class Action Complaint ¶ 9, Kennedy v. City
of Biloxi, Miss., No. 1:15-cv-00348-HSO-JCG (S.D. Miss. Oct. 21, 2015),
https://www.aclu.org/sites/default/files/field_document/complaint_kennedy_v._city_of_biloxi.pdf
[hereinafter Biloxi Complaint].
240. BANNON ET AL., supra note 37, at 22; see also ROOPAL PATEL & MEGHNA PHILIP,
BRENNAN CTR. FOR JUSTICE, CRIMINAL JUSTICE DEBT: A TOOLKIT FOR ACTION 9 (2012),
http://www.brennancenter.org/sites/default/files/legacy/publications/Criminal%20Justice%20Debt

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ants are not provided counsel or decline counsel because they fear they will
be charged additional fees that they cannot afford.241
For example, a 2015 federal lawsuit in Georgia asserts that DeKalb
County, the Chief Judge of the DeKalb County’s Recorder Court, and
Judicial Correction Services, Inc. (“JCS”) violated Kevin Thompson’s
constitutional rights by failing to provide counsel and an indigency hearing
before revoking his probation and jailing him when he was unable to pay
traffic fines and fees. 242 Unable to pay an $810 fine for driving with a suspended license, Thompson was assigned pay-only probation through
JCS. 243 Thompson, a nineteen-year-old, was no longer able to serve as a
tow-truck driver because of the suspension of his license. 244 His efforts to
replace his lost income by borrowing from relatives and looking for
alternative employment were not successful. 245 JCS served Thompson with
a Petition of Revocation of Probation asserting that he had failed to make
required payments of fines and fees and ordering him to appear in court. 246
The Petition did not notify him that indigent defendants had a right to free
court-appointed counsel at revocation proceedings for failure to pay. 247
Purportedly, the JCS officer also misrepresented that he would have to pay
a $150 fee for a public defender and failed to disclose his right to seek a
waiver of the fee. 248 Not understanding that he could seek a waiver of the
fee, Thompson waived his right to a public defender because he could not
afford the fee. 249 At the revocation hearing, Thompson was allegedly not
informed of his right to counsel. 250 A JCS representative told the court that
if Thompson did not pay all of his fees and fines on the date of the hearing,

%20Background%20for%20web.pdf (noting that “Florida, Georgia, and Ohio refuse to recognize
a right to counsel in civil proceedings that could result in incarceration”).
241. PATEL & PHILIP, supra note 240, at 9; Gottschalk, supra note 13, at 490 (stating “many
poor defendants are apparently waiving their right to counsel to avoid having to go into debt to
repay the cost of an assigned public defender”).
242. Thompson Complaint, supra note 213, ¶¶ 38–43, 102–06 (alleging violations of the Due
Process Clause of the Fourteenth Amendment for failure to provide counsel, failure to provide
notice of right to counsel, and misrepresentation regarding cost of counsel); Press Release, Am.
Civil Liberties Union, ACLU Challenges Abusive Debt Collection Practices That Target the Poor
(Jan. 29, 2015), https://www.aclu.org/criminal-law-reform-racial-justice/aclu-challenges-debtcollection-practices-target-poor.
243. Thompson Complaint, supra note 213, ¶¶ 22–23. For a discussion of pay-only probation,
see infra notes 283 to 289 and accompanying text.
244. Thompson Complaint, supra note 242, ¶¶ 9, 51.
245. Id. ¶¶ 5, 17, 27–31.
246. Id. ¶¶ 33–35.
247. Id. ¶¶ 37–38.
248. Id. ¶¶ 39–40.
249. Id. ¶¶ 41–43.
250. Id. ¶ 46.

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he should be jailed. 251 The court agreed and sentenced Thompson to nine
days. 252
In jurisdictions that permit exemptions from incarceration based on
inability to pay, many individuals fail to apply because “the process . . . is
poorly defined or overly complicated.”253 Some jurisdictions may require
the defendant to apply for indigency relief rather than having the court
make an affirmative finding of indigency before incarceration. For
example, New York law requires the defendant to request resentencing to
avoid incarceration for inability to pay a fine.254 In California, defendants,
often unknowingly, waive their rights to ability-to-pay hearings under the
state’s vehicle code because courts fail to notify defendants of their
rights. 255
C. The Disparate Impact of Criminal Justice Debt on the Poor and
Minorities
Although the growth of criminal justice debt has affected millions of
Americans, those least able to afford the sanctions have suffered the most.
While fees have become commonplace in modern society as reflected in the
charging of fees by such institutions as banks, utilities, and airlines,
monetary sanctions imposed by the criminal justice system “carry
repercussions of a different order, amplifying as they often do the already
severe indebtedness of those who are entrapped within its net.” 256 Those
who can afford to pay criminal justice debt can escape this net while those
who are unable to pay become enmeshed in what often seems to be a neverending poverty cycle. The adverse impact of this two-tiered system on the
poor and minorities is reflected in disproportionate assessment of fees, additional monetary sanctions, barriers to re-entry, and stress on families.
The shooting death of Michael Brown and subsequent protests in Ferguson, Missouri have prompted renewed calls for investigation into the
treatment of minorities and the poor in the criminal justice system. 257 Anecdotal and empirical evidence illustrate how the system adversely affects

251. Id. ¶ 47.
252. Id. ¶ 54.
253. PATEL & PHILIP, supra note 240, at 14. Patel and Philip’s Brennan Center Report characterized the courts’ treatment of “‘willful failure to pay’ as ill-defined and amorphous, exacerbating existing confusions.” Id. at 22.
254. N.Y. CRIM. PROC. §§ 420.10(3), (5) (McKinney 2005 & Supp. 2015).
255. BENDER ET AL., supra note 132, at 16 (citing CAL. VEH. CODE § 42003(c) (West 2014)).
256. Katzenstein & Nagrecha, supra note 26, at 561.
257. Amy R. Connolly, Justice Dept. Examining Ferguson Racial Discrimination, UPI.COM
(Feb. 19, 2015), http://www.upi.com/Top_News/US/2015/02/19/Justice-Dept-examiningFerguson-racial-discrimination/6031424340081/; Zachary Roth, Movement Sparked by Ferguson
(Dec.
30,
2014),
Has
Come
a
Long
Way,
MSNBC.COM
http://www.msnbc.com/msnbc/movement-sparked-ferguson-has-come-long-way.

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these groups. 258 Statistics reflect that prisoners are “overwhelmingly
poor” 259 and “overwhelmingly, people of color.”260
Given the
“substantially higher rates of incarceration” for the poor and minorities,
“the effects of harsh penal policies in the past [forty] years have fallen most
heavily on blacks and Hispanics, especially the poorest.” 261 While white
males have a 5.9% chance of incarceration during their lifetime, Hispanic
males have a 17% chance, and black males have a 32% chance.262 As of
December 31, 2013, approximately 3% of black males were imprisoned,
while 0.5% of white males were imprisoned. 263 The disparity is also evident in jails, where blacks and Hispanics represent more than half of the
inmates but less than one-third of the general population. 264 Moreover,
59% of jailed inmates “earned less than $1,000 per month before their arrest
and . . . 29% . . . were unemployed.” 265
Similarly, criminal justice debt has a disparate impact on the poor and
minorities. 266 For example, forty-three states now impose a fee for an indigent’s “free” public defender. 267 More than 80% of defendants qualify for
the right to have appointed counsel. 268 Black defendants are nearly “five
times more likely than white defendants to” use appointed counsel, making
them particularly susceptible to incurring more criminal justice debt in the
form of public defender fees. 269 In addition, black defendants are more
likely than white defendants to remain in jail until trial because they are unable to post bail. 270 The discretionary nature of fees and fines makes them
“especially vulnerable to ethnic and other disparities.”271 For example, the
Department of Justice’s report on the Ferguson Police Department (“FPD”)
reflects the disparate impact on African-Americans where, “[d]espite making up 67% of the population, African Americans accounted for 85% of

258. Laurie L. Levenson & Mary Gordon, The Dirty Little Secrets About Pay-to-Stay, 106
L.
REV.
FIRST
IMPRESSIONS
67,
67
(2007),
MICH.
http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1133&context=mlr_fi (“The dirty
little secret is out; people with more money get a better deal in our criminal justice system.”).
259. Levingston & Turetsky, supra note 82, at 187.
260. Id. at 188.
261. NAT’L RESEARCH COUNCIL, supra note 14, at 5.
262. Levenson & Gordon, supra note 258, at 67.
263. E. ANN CARSON, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, NCJ
24247282, PRISONERS IN 2013, at 2 (2014), http://www.bjs.gov/content/pub/pdf/p13.pdf.
264. SUBRAMANIAN ET AL., supra note 108, at 15.
265. Levenson & Gordon, supra note 258, at 67.
266. BANNON ET AL., supra note 37, at 4.
267. Shapiro, supra note 26; State-by-State Court Fees, supra note 121.
268. BANNON ET AL, supra note 37, at 4.
269. Id.
270. SUBRAMANIAN ET AL., supra note 108, at 15.
271. Beckett & Harris, supra note 12, at 522.

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FPD’s traffic stops, 90% of FPD’s citations, and 93% of FPD’s arrests from
2012 to 2014.” 272
Financial sanctions also disproportionately impact those at lower income levels. 273 Typically, fines and fees in the United States system are
imposed without consideration of the income of defendants. 274 As a result,
these monetary sanctions represent a larger percentage of the earning power
of low-income defendants than of higher income defendants. 275
Moreover, the imposition of criminal justice debt makes it harder for
already impoverished inmates to ever escape poverty. 276 Those unable to
pay not only continue to remain in the criminal justice system but also are
frequently assessed additional fees, referred to by critics as “poverty
penalties,” because such charges only arise for individuals who are unable
to pay the original monetary sanctions.277 Poverty penalties, consisting of
interest, late charges, and collection fees, can put indigent defendants in an
“endless cycle of debt.” 278 Payment or installment plans, arguably designed
to help those in need, may make matters worse by charging payment fees to
participate.279 Fourteen of the fifteen states with the highest prison populations impose poverty penalties. 280 The penalties can have a detrimental impact on the poor. 281 For example, a study of criminal justice debt in
Washington state found that using the median criminal justice debt amount
of $7234, a defendant paying $100 per month, representing 15% of his
expected monthly earnings, would—based on the accrual of interest
charges—still owe nearly $900 after ten years.282
The two-tiered nature of the system is most apparent in situations described as “pay-only” probation where courts impose probation solely because the defendant is unable to pay fines or court costs upfront.283 If the
accused had funds to pay the fines, the defendant would not end up on probation and would no longer be in the system. Defendants unable to pay
fines upfront are subject to additional fees and remain in the system, even

272. U.S. DEP’T OF JUSTICE, supra note 90, at 62.
273. AM. CIVIL LIBERTIES UNION, supra note 12, at 10 (describing the system as one “in
which the poorest defendants are punished more harshly than those with means”).
274. Beckett & Harris, supra note 12, at 509.
275. Id. at 516 (explaining that for the “poor and disadvantaged population . . . legal debt is
typically large relative to expected earnings”).
276. BANNON ET AL., supra note 37, at 2.
277. Id. at 1, 13.
278. Id. at 1.
279. PATEL & PHILIP, supra note 240, at 17.
280. BANNON ET AL., supra note 37, at 17.
281. Id. at 17–18.
282. Harris, Evans & Beckett, supra note 26, at 1776–77.
283. HUMAN RIGHTS WATCH, supra note 30, at 25–27.

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though they pose no threat to society and their underlying offenses, such as
traffic violations, typically do not require incarceration. 284
The problems become even more troubling when private probation
companies are involved. 285 Generally, contracts with private probation
companies require courts to assess monthly supervision fees, ranging from
$35 to $100. 286 As these monthly fees accumulate, they can create substantial burdens for low-income individuals and can even exceed the initial
fines assessed. 287 Failure to pay these fees can be grounds for revocation of
probation, which may result in the probationer’s incarceration.288 When
used in the “pay-only” probation context, the monthly supervision fees create a poverty tax on defendants because they could not pay the fines or
court costs upfront. 289 Moreover, the continuous accrual of monthly fees is
discriminatory against low-income individuals, creating a situation where
“the poorer you are, the more you ultimately pay.” 290
The poverty cycle is often inescapable because criminal justice debt
hampers efforts at re-entry into society. 291 Criminal justice debt negatively
impacts credit scores, which can result in the denial of credit, housing, and
employment opportunities. 292 Additionally, failure to make criminal debt
payments can lead to suspension of driving privileges, affecting the ability
to obtain and keep jobs. 293 Once a driver’s license is suspended, reinstatement and late fees are added to the original fine, and an individual must pay
this debt before she can regain her license.294 California courts have suspended more than four million licenses for failure to pay criminal justice
debt. 295 Similarly, outstanding criminal justice debt may result in denial of
the right to vote.296

284. Id. at 25.
285. For a description of some of the financial hardships private probation companies impose
on indigent probationers, see id. at 22–37. The Human Rights Watch report provides anecdotal
and statistical evidence to support its claims. Id.
286. Id. at 23–24.
287. Id. at 24.
288. Id. at 26.
289. Id. at 27.
290. Id.
291. BANNON ET AL., supra note 37, at 27; EISEN, supra note 39, at 2.
292. BANNON ET AL., supra note 37, at 27.
293. Id. at 2; BENDER ET AL., supra note 132, at 4; Harris, Evans & Beckett, supra note 26, at
1762. For a more detailed discussion regarding the use of suspension of driving privileges to collect traffic fines, see John B. Mitchell & Kelly Kunsch, Of Driver’s Licenses and Debtor’s Prison,
4 SEATTLE J. FOR SOC. JUST. 439 (2005).
294. McCormack, supra note 113, at 230.
295. BENDER ET AL., supra note 132, at 4.
296. BANNON ET AL., supra note 37, at 29. For a detailed discussion of the relationship between criminal justice debt and the denial of voting rights, see Ann Cammett, Shadow Citizens:
Felony Disenfranchisement and the Criminalization of Debt, 117 PENN ST. L. REV. 349 (2012).

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Failure to pay legal financial obligations is also a condition of probation or parole, and violations of probation or parole can in turn result in denial of federal benefits—including food stamps, social security, and housing
assistance. 297 Often low-income defendants have to choose between paying
criminal justice debt and buying necessities.298 For example, Regina Roberts, a single grandmother, whose sole income was disability payments, had
to choose between making criminal justice debt payments and medical debt
payments related to her lung disease and bipolar disorder.299 She had been
assessed nearly $7000 in LFOs following a welfare fraud conviction due to
a caseworker’s error in reporting her income when she sought recertification for her food stamps. 300 A probation officer rejected Ms. Roberts’ payments as too small and had the court extend her original two-year probation
term for an additional two years. 301
The impact of criminal justice debt is not limited to defendants. Collectors may seek recovery from jointly held assets and may even be able to
garnish the earnings of a defendant’s spouse. 302 Funds that may otherwise
be used to support spouses and children are often used to pay criminal justice debt. 303 A report based on interviews with defendants about the
consequences of criminal justice debt found that families and friends often
provide the financial resources to prevent re-incarceration stating, “[e]ven
assuming that it is the returning prisoner who has ‘done the crime,’ it is
often up to . . . friends and family members to help pay the time.” 304
While coping with civil debt issues is difficult for the poor and minorities, criminal justice debt issues often create greater concerns. Unlike civil
debt, criminal justice debt is typically not subject to discharge in bankruptcy and carries with it the threat of arrest and incarceration.305 When services are outsourced to private parties, collectors obtain remedies that
would not be otherwise permissible in civil collection.306 For example, private probation companies can threaten revocation of probation to collect
297. BANNON ET AL., supra note 37, at 28; Harris, Evans & Beckett, supra note 26, at 1762.
298. COOK, supra note 41, at 24; EISEN, supra note 39, at 2.
299. AM. CIVIL LIBERTIES UNION, supra note 12, at 32.
300. Id.
301. Id.
302. Beckett & Harris, supra note 12, at 523 (stating that in Washington state, clerks can
“garnish up to 25% of the earnings of the debtor or his/her spouse and to seize jointly held bank
assets, home equity, and tax refunds”).
303. Id.; MITALI NAGRECHA, MARY FAINSOD KATZENSTEIN & ESTELLE DAVIS, CTR. FOR
COMMUNITY ALTERNATIVES, FIRST PERSON ACCOUNTS OF CRIMINAL JUSTICE DEBT: WHEN ALL
ELSE FAILS, FINING THE FAMILY 3 (2015), http://communityalternatives.org/pdf/Criminal-JusticeDebt.pdf.
304. NAGRECHA ET.AL., supra note 303, at 3; see EISEN, supra note 39, at 4 (concluding that
families adversely impacted by loss of income from incarcerated relatives often pay inmate fees).
305. Harris, Evans & Beckett, supra note 26, at 1762–63.
306. Beckett & Harris, supra note 12, at 513.

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their supervision fees. 307 To put this information into context, Human
Rights Watch describes how defendants could be in a better situation by
taking out a loan with exorbitant terms:
An offender who requires 24 months on probation to pay off a
$1,200 fine, with a $35 monthly supervision fee, would be
financially better off taking out a $1,200, 24-month loan with an
APR of 50 percent. She would also not have to face the direct
threat of incarceration over missed payments, as she would while
on probation. 308
Additionally, non-monetary probation requirements may discriminate
against the poor. For example, court-imposed probation required Quentone
Moore to wear an electronic monitoring bracelet; however, the monitoring
bracelet required a landline telephone. Being homeless, Moore was unable
to comply with the landline requirement and wound up spending fifty-two
days in jail. 309
D. Conflicts of Interest and Distrust in the Criminal Justice System
The current system of assessing and collecting criminal justice debt
has created distrust and conflict of interest issues similar to the concerns
voiced by opponents of debtors’ prisons in the eighteenth and nineteenth
centuries. 310 Distrust of the legal system by the poor and minorities is not a
new issue. 311 As recognized by the Supreme Court, “Justice, if it can be
measured, must be measured by the experience the average citizen has with
the police and the lower courts.”312 For many people, their experience with
the justice system is based on their interactions with the municipal court.313
For those who are assessed with criminal justice debt that they are unable to
pay and threatened with arrest, their measure of justice becomes characterized by distrust and fear. 314 The fear of arrest for failure to pay criminal
justice debt can cause individuals to avoid seeking necessary legal or medi-

307. Developments in the Law: Policing, 128 HARV. L. REV. 1723, 1729 (2015) (describing
how private probation companies have become “debt collector[s] backed by carceral power”); see
also HUMAN RIGHTS WATCH, supra note 30, at 27.
308. HUMAN RIGHTS WATCH, supra note 30, at 29.
309. Id. at 35.
310. See supra notes 52–55 and accompanying text.
311. The topic of class and racial discrimination in the criminal justice system is beyond the
scope of this Article. For more detailed information, see DAVID COLE, NO EQUAL JUSTICE: RACE
AND CLASS IN THE AMERICAN CRIMINAL JUSTICE SYSTEM (1999); Clyde E. Murphy, Racial Discrimination in the Criminal Justice System, 17 N.C. CENT. L.J. 171, 187–90 (1988).
312. Mayer v. City of Chicago, 404 U.S. 189, 197 (1971) (quoting Patrick V. Murphy, The
Role of the Police in Our Modern Society, in 26 THE RECORD OF THE ASSOCIATION OF THE BAR
OF THE CITY OF NEW YORK 292, 293 (1971)).
313. See, e.g., HARVEY ET AL., supra note 192, at 12 (describing experiences in Missouri).
314. HARVEY ET AL., supra note 192, at 12; Westen, supra note 85, at 795.

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cal help. 315 The same fear can result in reluctance to show up at their workplace. 316 In certain situations, the imposition of criminal justice debt can
encourage individuals to commit crimes to obtain the funds necessary to
pay criminal justice debt.317
Where racially discriminatory practices exist or appear to exist, distrust can rise to even greater levels. These situations can result in concerns
about racial profiling. 318 For example, the Ferguson Police Department has
been accused of “us[ing] racially discriminatory practices in targeting
minorities for minor offenses and putting them in jail if they can’t pay
fines.” 319 The Department of Justice’s report found “substantial evidence of
racial bias among police and court staff in Ferguson.” 320
The dramatic increase in the level of criminal justice debt at a time of
budgetary shortfalls has created an impression that criminal justice debts are
imposed primarily for collecting revenue rather than serving a penological
rationale. 321 Concerns about revenue collection are generally greater in
economically depressed counties, putting more pressure on those least likely to afford the burden of criminal justice debt. 322 The use of criminal jus315. NAT’L RESEARCH COUNCIL, supra note 14, at 305 (identifying Alice Goffman’s ethnographic study describing how probationers and parolees in Philadelphia “and those with outstanding warrants, even for trivial offenses, avoid the police and courts at all costs—even when they are
the victims of violent attacks and other serious crimes—out of a justified fear that they will be sent
to prison or jail”); see Harris, Evans & Beckett, supra note 26, at 1761 (also relying on Goffman’s
study and concluding that “being wanted by the police shapes the lives of the urban poor, often in
adverse ways”).
316. Harris, Evans & Beckett, supra note 26, at 1761.
317. COOK, supra note 41, at 11 (reporting that seventeen percent of those surveyed in Alabama admitted to committing crimes to obtain money to pay criminal justice debt and that the
number was greater when the interviewer was independent rather than a criminal justice officer);
see Bearden v. Georgia, 461 U.S. 660, 670–71 (1983) (revoking probation of someone who does
not have the ability to pay “may have the perverse effect of inducing the probationer to use illegal
means to acquire funds to pay in order to avoid revocation”); Katzenstein & Nagrecha, supra note
26, at 566 (recognizing “[t]o the extent that the excessive burdens of debt direct the poor toward
additional crime, the failure to make payments on state monies owed leads to reincarceration, and
responsibility as valued behavior simply cannot be learned by overwhelming individuals who are
already struggling financially, reason exists on all sides of the aisle to reverse the direction of the
growing debt collection regime”); see also Westen, supra note 85, at 795 (referring to the 1968
President’s Commission on Riots and Civil Disorders for the conclusion that “the belief is ‘pervasive’ in ghetto areas that the courts in imposing fines discriminate against the poor, that the judicial system has become an object of distrust, and that this distrust has increased the level of
crime”).
318. HARVEY ET AL., supra note 192, at 13 (report of certain municipalities in Missouri claiming that “the current policies adopted by the municipal court system lead to the impression of the
courts and municipalities as racist institutions that care much more about collecting money—
generally from poor, black residents—than about dispensing justice”).
319. Connolly, supra note 257.
320. U.S. DEP’T OF JUSTICE, supra note 90, at 5.
321. AM. CIVIL LIBERTIES UNION, supra note 12, at 8 (recognizing that criminal justice debt
represents a “critical revenue stream” for otherwise inadequately funded justice systems).
322. HUMAN RIGHTS WATCH, supra note 30, at 14.

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tice debt to fund unrelated activities of states and localities “effectively
turn[s] courts, clerks, and probation officers into general tax collectors.” 323
Imposing criminal justice debt on the poor to fund the court system creates
potential conflicts of interests for judges who face conflicting concerns over
providing justice and collecting revenue.324 The practice “can interfere with
the judiciary’s independent constitutional role . . . and, in its most extreme
form, threaten the impartiality of judges and other court personnel.” 325
Similarly, for probation and parole officers, the traditional role of supervising and monitoring individuals to protect the public and prevent new offenses is often in conflict with the new role of debt collector. 326
The problem of conflicts of interest may be even more dramatic with
the privatization of services. 327 As more states and localities have turned to
privatizing prisons, jails, supervision, and collection, the incentives for
these third parties to profit are often in conflict with the goals of the
criminal justice system. 328 For example, private probation companies who
typically provide their services at no charge to municipalities, rely solely on
fees collected from the persons that they monitor.329 As a result, for these
companies, “every person who successfully completes probation is a lost
source of revenue.” 330 Additionally, the private parties may act without ad-

323. BANNON ET AL., supra note 37, at 30.
324. AM. CIVIL LIBERTIES UNION, supra note 12, at 9 (referring to the acknowledgement by
the chief judge of the New Orleans criminal court that “it creates an appearance of impropriety
when judges must rely in part on collecting LFOs from poor defendants to keep their courts running”).
325. Id. Another concern arises with part-time justices who have non-judicial roles in the system. See, e.g., HARVEY ET AL., supra note 192, at 11 (describing situations in Missouri where
part-time municipal judges may also serve as prosecutors in other municipalities).
326. BANNON ET AL., supra note 37, at 31.
327. Logan & Wright, supra note 24, at 1213 (describing how “[r]isk also spikes when private
vendors get involved”). But see John Archibald, Alabama’s For-Profit Courts Turn American
(Nov.
21,
2014),
Dream
into
Nightmare,
AL.COM
http://www.al.com/opinion/index.ssf/2014/11/alabamas_for-profit_courts_tur.html (arguing that
merely eliminating government use of private probation companies does not eliminate conflicts as
government, too, can act for profit rather than justice).
328. See, e.g., Aviram, supra note 201, at 132 (stating that “the emergence of private probation outfits has led to allegations that probationary decision-making has shifted from ostensibly
neutral courts to for-profit corporations looking to reap financial gain by using probation as a tool
to fine and fee cash-strapped individuals”); Developments in the Law: Policing, supra note 307, at
1729–30.
329. Radley Balko, A Debtors’ Prison in Mississippi, WASH. POST (Oct. 21, 2015),
https://www.washingtonpost.com/news/the-watch/wp/2015/10/21/a-debtors-prison-inmississippi/. For more detail about private probation companies relying solely on collections from
probationers, see supra notes 207–208 and accompanying text.
330. See Balko, supra note 329 (asserting that “if you hire a probation company on a contract
that makes probations the sole source of the company’s revenue, that company will have a strong
incentive to treat probationers more as cash machines than as human beings”).

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equate supervision by the court or local government. 331 The lack of
oversight leads to accountability issues and creates the potential for corruption. 332
IV. A FRAMEWORK FOR REDUCING INCARCERATION OF INDIGENTS WHO
FAIL TO PAY CRIMINAL JUSTICE DEBT
Given the return of debtors’ prisons as well as the historical concerns
that led to calls for their abolition, it is time to implement more effective
alternatives to reduce the incidence of incarceration of individuals who are
unable to pay legal financial obligations. This Part evaluates some of the
current proposals—namely abolishing monetary sanctions, basing fines on
earnings, and enforcing current laws. This Part then recommends a hybrid
approach and suggests modifications to broaden the scope and enforceability of the current proposals.
A. Alternatives
1. Abolish Monetary Sanctions
Professors Katherine Beckett and Alexes Harris advocate the abolition
of fees and fines as currently used in the United States criminal justice system. 333 Based on their analysis, the cost of these sanctions outweighs the
benefits. 334 Their proposal is based on three general concerns: the need for

331. HUMAN RIGHTS WATCH, supra note 30, at 57–61 (describing problems with lack of government or judicial supervision of private probation companies); Developments in the Law: Policing, supra note 307, at 1729–30 (asserting that when using private probation companies “local
governments have little control over how fee schemes are structured or which probationers are
hounded”); Logan & Wright, supra note 24, at 1213–14. Thompson v. DeKalb County is a recent
case involving a county’s and court’s improper delegation of authority and supervision to a private
probation company. See Thompson Complaint, supra note 213, ¶ 96.
332. HUMAN RIGHTS WATCH, supra note 30, at 63–67 (discussing accountability and corruption issues under the current private probation system); Logan & Wright, supra note 24, at 1213–
14.
333. Beckett & Harris, supra note 12, at 519. Beckett and Harris expressly exclude restitution
charges from the sanctions that they claim should be abolished. Id. at 510 (arguing that restitution
payments differ from fines and fees in that restitution payments are made to specific victims as
opposed to the government). For additional support for the abolition approach, see Katzenstein &
Nagrecha, supra note 26, at 556. Professor Ruback contends that the restrictions should be limited to fees and costs. R. Barry Ruback, The Benefits and Costs of Economic Sanctions: Considering the Victim, the Offender, and Society, 99 MINN. L. REV. 1779, 1820 (2015). Similarly, a recent draft of the Model Penal Code (Second) of Sentencing also proposes that fees and costs be
abolished. See Kevin R. Reitz, The Economic Rehabilitation of Offenders: Recommendations of
the Model Penal Code (Second), 99 MINN. L. REV. 1735, 1757–61 (2015) (citing MODEL PENAL
CODE: SENTENCING § 6.04D(2), Alternative § 6.04D(1) (Tentative Draft No. 3, 2014)).
334. Beckett & Harris, supra note 12, at 519.

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a “convincing penological rationale,” the unfairness of imposing monetary
sanctions, and the conflicts of interests created by the system. 335
With respect to the penological justification, they argue that fees and
fines, as imposed in the United States, do not serve the traditional
penological goals of “incapacitation, rehabilitation, deterrence, and
retribution.” 336 The discretionary and unpredictable nature of monetary
sanctions prevents effective deterrence while their disproportionately punitive nature “approaches vengeance rather than retribution.”337 Moreover,
Beckett and Harris argue the sanctions often are counterproductive and create hurdles that prevent re-integration of defendants into society. 338
Beckett and Harris point to the inequity in the imposition of monetary
sanctions as a reason for abolishing them. In particular, they identify the
problems of supplementing prison sentences with monetary sanctions, the
inherent class bias in assessing monetary sanctions without adjustments for
income, and the use of incarceration for failure to pay criminal justice
debt. 339 Moreover, as Beckett and Harris note, the sanctions imposed often
have deleterious impacts on the families of defendants. 340
Finally, Beckett and Harris are concerned about funding the criminal
justice system through leveling monetary penalties on defendants.341 Specifically, they are skeptical about whether collections, especially when
measured against their substantial indirect costs, result in “a net financial
gain.” 342 They contend that the use of a system that relies on fees for funding can lead to conflicts of interest for judges and other actors involved in
assessing and collecting fees to support the system. 343 Given these concerns, Beckett and Harris suggest that fees and fines, as currently used in
the United States, should simply be abolished. 344
While the abolition proposal has advantages as a bright-line approach,
complete abolition seems extreme. As a practical matter, political and financial considerations will likely prevent the complete abolition of monetary sanctions. 345 Polls indicate that Americans “overwhelmingly” support
335. Id. at 519−28.
336. Id. at 519.
337. Id. at 520.
338. Id.
339. Id. at 521–25.
340. Id. at 523.
341. Id. at 527−28.
342. Id.; see also Pat O’Malley, Politicizing the Case for Fines, 10 CRIMINOLOGY & PUB.
POL’Y 547, 551 (2011) (relying on Harris and Beckett’s findings and noting that “fees probably
are at best fiscally neutral because . . . the costs of collection approach the revenue raised,” and
when factoring in their social costs fees are likely “fiscally counterproductive”).
343. Beckett & Harris, supra note 12, at 528.
344. Id. at 528–29.
345. Traci R. Burch, Fixing the Broken System of Financial Sanctions, 10 CRIMINOLOGY &
PUB. POL’Y 539, 539–41 (2011). Professor Reitz explains that while the first choice of the draft-

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the idea of offender funding. 346 Moreover, given state budgetary concerns,
states are unlikely to release potential revenue sources. To the contrary, the
economic considerations have led to increased growth in fees assessed. 347
Additionally, monetary sanctions can be effective for individuals who can
pay. 348
2. Base Fine Amounts on Income Levels
An alternative to abolishing sanctions is to assess sanctions based on a
defendant’s income. Sweden and Germany are examples of countries that
apply a graduated system known as “day-fines.” 349 In countries using a
day-fine system, fines are typically the primary source of punishment. 350
Day-fines are calculated based on the severity of the crime and the
defendant’s daily income. 351 The goal of the day-fine system is to create
“an equivalent level of economic burden to offenders of differing means
who are convicted of similar offenses.” 352 As a result, under the day-fine
system defendants convicted of the same offenses would pay the same percentage of their income, meaning that individuals with greater incomes
would be assessed larger absolute fines. 353
The day-fine system has several advantages over the traditional system
in America. First, it has a fairness component so that individuals are assessed the same relative sanction, regardless of their income. 354 Additionalers of the Model Penal Code was to abolish fees and costs, they recognized that in the “short- or
middle-term” most jurisdictions would not adopt an abolitionist approach, so they included an alternative that would allow for such sanctions subject to “a host of substantive and procedural limitations.” Reitz, supra note 333, at 1757–60 (citing MODEL PENAL CODE: SENTENCING §
6.04D(2), Alternative § 6.04D(1) (Tentative Draft No. 3, 2014)).
346. Id. at 539–40 (citing surveys conducted by the Roper Center for Public Opinion Research
and Gallup, including a 1991 survey which found that over ninety percent of respondents favored
“requiring convicted criminals to pay a substantial share of the cost of their imprisonment” (quoting ROPER CENTER FOR PUBLIC OPINION RESEARCH, NATIONAL VICTIMS WEEK STUDY (1991)).
347. Id. at 540–41. For a discussion of the growth in use of fees, see supra notes 194 to 197
and accompanying text.
348. Ruback, supra note 82, at 577–78.
349. Tonry & Lynch, supra note 91, at 128. Professors Beckett and Harris affirmatively state
that their abolition suggestion does not apply to day fine systems. Beckett & Harris, supra
note 12, at 519 (asserting that their “analysis pertains only to the imposition of fees and fines in
the contemporary United States and does not extend to European-style imposition of day fines”).
350. Beckett & Harris, supra note 12, at 514 (noting that “fines serve as an alternative rather
than as a supplement to incarceration”); Tonry & Lynch, supra note 91, at 128 (describing use of
fines in the Netherlands, Germany, and Sweden).
351. Beckett & Harris, supra note 12, at 514–15; Tonry & Lynch, supra note 91, at 128.
352. George F. Cole, Fines Can Be Fine—And Collected: Here’s How, JUDGES’ J., Winter
1989, at 5, 7.
353. Beckett & Harris, supra note 12, at 514–15; Cole, supra note 352, at 7.
354. Cole, supra note 352, at 7. On the other hand, some commentators assert the day-fine
system would create proportionality concerns because of the differences in fines for wealthy and
poor defenders. See, e.g., O’Malley, supra note 342, at 547.

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ly, since sanctions are based on a defendant’s ability to pay, collection
would presumably be easier. 355
Although day-fine systems have been operating in several European
countries for years, implementation in the United States may be difficult,
especially given the American penchant for use of imprisonment. 356 The
use of monetary sanctions is substantially different in Europe than in the
United States. 357 While Europe tends to rely on monetary sanctions as the
sole source of punishment, in the United States, monetary sanctions are often a supplement to other forms of punishment, including incarceration and
probation. 358 In the United States, fines are typically set at the judge’s discretion without consideration of defendant’s earnings, and fines often accompany prison sentences and probation.359 Generally, American judges do
not view fines as an adequate alternative to imprisonment or probation. 360
Additionally, the day-fine systems in Europe rely on the courts’ access
to financial information regarding citizens. Such information, while available in Europe, is generally not available in the United States. 361 To implement a similar system in the United States would require that courts have
access to defendants’ financial records, such as bank accounts and tax returns. However, such a system would likely be expensive to implement and
would raise privacy issues. 362
3. Enforce Current Laws
Instead of seeking to abolish monetary sanctions or overhaul the
system of setting fines, a third alternative is to develop a more effective
system for enforcing existing laws designed to prevent incarceration of
indigents. Prompted by American Civil Liberties Union (“ACLU”) concerns of abuse, in 2014 the Ohio Supreme Court and the Colorado legisla-

355. Cole, supra note 352, at 7.
356. Tonry & Lynch, supra note 91, at 132 (stating that the most difficult obstacle to implementing day fines “is the modern American preoccupation with absolute severity of punishment
and the related widespread view that only imprisonment counts”). Although some pilot day-fine
programs have been conducted in the United States, they have been in limited areas for limited
timespans and for the most part have focused on misdemeanors. See id. at 129–30 (describing test
programs that occurred for relatively short time spans in 1988–1994 in Staten Island, New York
and counties in Arizona, Connecticut, Iowa, and Oregon).
357. Beckett & Harris, supra note 12, at 514–15; Tonry & Lynch, supra note 91, at 128.
358. Beckett & Harris, supra note 12, at 514–15; Tonry & Lynch, supra note 91, at 128.
359. Beckett & Harris, supra note 12, at 514–15; Tonry & Lynch, supra note 91, at 128.
360. Tonry & Lynch, supra note 91, at 128 (citing a national survey of judicial attitudes).
361. Cole, supra note 352, at 7–8 (reporting the results of a judicial survey reflecting that
judges have limited information about income, employment, and assets of defendants); Ruback,
supra note 82, at 576–77.
362. Ruback, supra note 82, at 576–77.

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ture established plans designed to enforce existing laws and end the problem of incarcerating indigents for failure to pay criminal justice debt.363
Ohio’s reforms were prompted by reports from the ACLU in 2010 and
the ACLU of Ohio in 2013. 364 A 2010 investigation by the ACLU of five
states, including Ohio, found that the subject states had improperly incarcerated individuals who were unable to pay criminal fines.365 Specifically,
the 2010 report found that although Ohio has some of the toughest laws
prohibiting the incarceration of individuals for failure to pay fines and fees,
Ohio courts were ignoring these restrictions and imprisoning individuals
who were unable to pay their criminal justice debt. 366 After the release of
the 2010 report, the ACLU of Ohio received notices of abusive practices
throughout the state, especially from Huron County. 367 The ACLU’s review of public records, as well as in-person court observation, revealed
“egregious evidence of debtors’ prisons practices.” 368 Based on these
findings in Huron County, the ACLU of Ohio conducted a statewide
investigation of ten other counties finding that “debtors’ prisons practices
[were] undoubtedly a statewide phenomenon in Ohio, potentially affecting
thousands of individuals.” 369 The 2013 report, based on the a statewide
investigation, concluded, “[u]ntil the state Supreme Court takes action,
thousands of Ohioans will continue to be relegated to the outskirts of hope,
where the crime of poverty sentences them to a vicious cycle of
incarceration, burdensome fees, and diminishing optimism for a better
363. Jeremy Pelzer, Ohio Supreme Court Takes Lead in Cracking Down on Illegal ‘Debtors’
(July
22,
2014),
Prisons’,
CLEVELAND.COM
http://www.cleveland.com/open/index.ssf/2014/07/ohio_supreme_court_takes_lead.html;
Kiela
Parks, Gov. Signs Debtors’ Prison Ban Into Law, COLO. RIGHTS BLOG (May 13, 2014),
http://aclu-co.org/blog/gov-signs-debtors-prison-ban-law/. For a discussion of the Colorado legislation, see Recent Legislation, Criminal Procedure—Indigency Tests—Colorado Requires OnThe-Record Indigency Proceedings Prior to Incarceration for Failure to Pay Fines, 128 HARV. L.
REV. 1312 (2015). Highlighting the reforms from Colorado and Ohio is not meant to imply that
other jurisdictions have not also adopted reforms. See, e.g., PATEL & PHILIP, supra note 239, at
11–22 (discussing reform efforts in Florida, Maryland, Massachusetts, Rhode Island, and Washington).
364. See AM. CIVIL LIBERTIES UNION, supra note 12; AM. CIVIL LIBERTIES UNION OF OHIO,
THE OUTSKIRTS OF HOPE: HOW OHIO’S DEBTORS’ PRISONS ARE RUINING LIVES AND COSTING
COMMUNITIES
(2013),
http://www.acluohio.org/wpcontent/uploads/2013/04/TheOutskirtsOfHope2013_04.pdf.
365. AM. CIVIL LIBERTIES UNION, supra note 12, at 44–45.
366. AM. CIVIL LIBERTIES UNION, supra note 12, at 43–44. The restrictions on use of incarceration for debt identified in the report include the constitutional restriction on imprisonment for
debt, and the statutory and case law restrictions preventing use of incarceration to collect costs,
restitution, and other fees. Id. at nn.129 & 134–36 and accompanying text (citing OHIO CONST.
art I, § 15); State v. Self, 2d Dist. Montgomery No. 20370, 2005-Ohio-1120; see also OHIO REV.
CODE ANN. §§ 2929.18[D], 2929.28[D] (Supp. 2014).
367. AM. CIVIL LIBERTIES UNION OF OHIO, supra note 364, at 8.
368. Id. at 8–9 (finding that “approximately 22% of the total bookings in the Huron Country
Jail were related to failure to pay fines”).
369. Id. at 9.

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life.” 370 In April 2013, the ACLU of Ohio demanded that the Ohio Supreme Court “promulgate clear rules . . . [to] end debtors’ prisons in
Ohio.” 371
By February 2014, the Ohio Supreme Court had responded to the call
for action and taken the lead in establishing reforms aimed at ending incarceration based on the inability to pay criminal justice debt.372 The Ohio
Plan provides trial judges with a laminated “bench card” with “user-friendly
encapsulations and graphics” that set forth the restrictions on the use of incarceration for criminal justice debt.373 Specifically, the card distinguishes
between fines and court costs. 374 The card states that court costs, including
fees, are civil debt obligations so that incarceration is not available as a collection method. 375
For fines, incarceration is available only after a determination by the
court at a hearing that the defendant’s failure to pay is based on a willful refusal to pay as opposed to an inability to pay. 376 Defendants are entitled to
reasonable notice of the hearing and a right to counsel, including a public
defender. 377 If a court rules that the defendant can pay, the judgment must
include findings of fact regarding defendant’s income, assets, and debts. 378
Moreover, as specified in the bench card, courts cannot use their
contempt powers to incarcerate someone for failure to pay a fine, and
“unpaid fines and/or court costs may neither be a condition of probation,
nor grounds for an extension or violation of probation.” 379 The card cautions judges that they are subject to “disciplinary violations” if they fail to
follow the provisions for the collection of fines.380 In addition to the bench
370. Id. at 20.
371. AM. CIVIL LIBERTIES UNION OF OHIO, supra note 364, at 20.
372. Pelzer, supra note 363 (stating that “[t]he Ohio Supreme Court has likely done more than
any other state supreme court to stop the unconstitutional jailing of people who can’t afford to pay
fines or court costs”); ‘Debtors’ Prisons’ Struck Down by Ohio Supreme Court, HUFF POST (Feb.
5, 2014), http://www.huffingtonpost.com/2014/02/05/debtors-prisons-ohio_n_4732596.html; Ohio
Bans Debtors’ Prisons, A.B.A. J., Oct. 2014, at 61 (commentator remarking on the actions of the
Ohio Supreme Court, stated that “[w]ith swiftness almost unknown to any big-state, sprawling
judiciary, the chief justice [of the Ohio Supreme Court] set in motion corrective measures that virtually ended the [debtors’ prison] practice within the year”).
373. Ohio Bans Debtors’ Prisons, supra note 372, at 61. A copy of the “bench card” is available online. SUPREME COURT OF OHIO, OFFICE OF JUDICIAL SERVS., COLLECTION OF FINES AND
COURT
COSTS
IN
ADULT
TRIAL
COURTS
(2015),
http://www.supremecourt.ohio.gov/Publications/JCS/finesCourtCosts.pdf.
374. SUPREME COURT OF OHIO, supra note 373 (citing State v. Swift, 2d Dist. Montgomery
No. 20543, 2005-Ohio-1595.
375. Id.
376. OHIO REV. CODE ANN. § 2947.14(A) (LexisNexis 2014); SUPREME COURT OF OHIO,
supra note 373.
377. § 2947.14(B); SUPREME COURT OF OHIO, supra note 373.
378. § 2947.14(C); SUPREME COURT OF OHIO supra note 373.
379. SUPREME COURT OF OHIO, supra note 373.
380. Id.

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card, the Ohio Supreme Court has established training for judges, probation
officers, and court employees. 381
Just as an ACLU reports prompted judicial action in Ohio, an ACLU
investigation led to legislative action in Colorado to deal with debtors’ prisons. 382 The Colorado chapter of the ACLU had conducted a two-year study
that focused on the use of “pay or serve” warrants by the municipal courts
in three large cities in Colorado.383 These warrants required defendants to
either pay the full amount of their monetary sanctions or serve jail time to
pay off their debt.384 As reported in demand letters sent to the mayors of
Westminster, Northglenn, and Wheat Ridge, the ACLU of Colorado found
that the municipal courts in these cities incarcerated indigent individuals
who failed to pay criminal justice debt without consideration of their ability
to pay. 385
The ACLU also alleged that the procedure of incarcerating indigents
under pay or serve warrants was fiscally unsound as the system had increased the costs of incarceration, and fines were never collected. 386 For
example, the investigation found that in one jail during a five-month period,
the loss to the municipality was $110,000 as about 150 people served about
1000 days in jail resulting in a cost of over $70,000 for incarceration and
the cancelation of $40,000 in fees.387 The ACLU letters demanded that the

381. Jeremy Pelzer, For Poorer Ohioans, Illegal Jail Time Can Be Tough to Fight,
(Aug.
4,
2014),
CLEVELAND.COM
http://www.cleveland.com/open/index.ssf/2014/08/for_poorer_ohioans_illegal_jai.html;
Ohio
Bans Debtors’ Prisons, supra note 372 , at 61 (“extensive provision of new training programs”).
382. Act of May 9, 2014, ch. 164, 2014 Colo. ALS 164, (codifies as amended at COLO. REV.
STAT. § 18-1.3-702 (2015)); Parks, supra note 363.
383. Press Release, Am. Civil Liberties Union, Colorado Cities Illegally Jail Poor People for
Failure to Pay Fines (Dec. 16, 2013), https://www.aclu.org/criminal-law-reform/colorado-citiesillegally-jail-poor-people-failure-pay-fines. The ACLU found that nine of the sixteen largest cities in Colorado use “pay or serve” warrants. Christopher N. Osher, Colorado Cities Jail Poor
Who Can’t Pay Fines for Minor Offenses, DENVER POST (Dec. 15, 2013),
http://www.denverpost.com/news/ci_24726701/colorado-cities-jail-poor-who-cant-pay-fines.
384. Osher, supra note 383.
385. Letter from Rebecca T. Wallace & Mark Silverstein, ACLU of Colo., to Joyce Downing,
Mayor
of
Northglenn
3
(Dec.
16,
2013),
http://static.aclu-co.org/wpcontent/uploads/2014/02/2013-12-16-Downing-ACLU.pdf; Letter from Rebecca T. Wallace &
Mark Silverstein, ACLU of Colo., to Joyce Jay, Mayor of Wheat Ridge 3 (Dec. 16, 2013),
http://static.aclu-co.org/wp-content/uploads/2014/02/2013-12-16-Jay-ACLU.pdf; see also Press
Release, Am. Civil Liberties Union, supra note 383.
386. Press Release, Am. Civil Liberties Union, supra note 383.
387. Id. As described in the demand letters, imprisoning an indigent defendant who is unable
to pay a fine results in a “net loss. . . of more than $70 per day.” Letter from Rebecca T. Wallace
& Mark Silverstein, ACLU of Colo., to Herb Atchison, Mayor of Westminster 5 (Dec. 16, 2013),
http://aclu-co.org/wp-content/uploads/files/2013-12-16%20Atchison-ACLU.pdf; Letter from Rebecca T. Wallace & Mark Silverstein to Joyce Downing, supra note 385, at 5; Letter from Rebecca T. Wallace & Mark Silverstein to Joyce Jay, supra note 385, at 6.

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municipalities cease their unconstitutional practice of incarcerating individuals for failure to pay fines without determining their ability to pay. 388
Following the ACLU investigation, Colorado enacted legislation
designed to reduce the incidence of debtors’ prisons. The ACLU
proclaimed the legislation to be “the first of its kind across the country and
will serve as a model for other states.” 389 Specifically, Colorado amended
its statute dealing with the due process requirements for monetary payments. 390 Unlike the Ohio Supreme Court’s distinction between fines and
fees, the amended Colorado statute replaces “fine” with the broader term
“monetary amount” to reflect that the amendments apply to all courtimposed monetary amounts. 391 The amendment further requires that if a
court imposes a monetary amount on a defendant, that the court instruct the
defendant that if she is unable to pay the amount due at any time, she must
contact the court or the court’s designated official to explain the inability to
pay. 392 Recognizing the impact of monetary sanctions on the poor and their
families, the statute sets forth procedural protections that, among other
things, prohibit incarceration “when a defendant is unable to pay a
monetary amount due without undue hardship to himself or herself or his or
her dependents.” 393 A court may not revoke probation, find a defendant in
contempt of court, or incarcerate a defendant for failure to pay:
unless the court has made findings on the record, after providing
notice to the defendant and a hearing, that the defendant has the
ability to comply with the court’s order to pay a monetary amount
due without undue hardship to the defendant or the defendant’s
dependents and that the defendant has not made a good faith
effort to comply with the order.394

388. Letter from Rebecca T. Wallace & Mark Silverstein to Herb Atchison, supra note 388, at
5–6; Letter from Rebecca T. Wallace & Mark Silverstein to Joyce Downing, supra note 385, at 5–
6; Letter from Rebecca T. Wallace & Mark Silverstein to Joyce Jay, supra note 385, at 6–7.
389. End Debtors’ Prisons, AM. CIVIL LIBERTIES UNION OF COLO., http://acluco.org/campaigns/end-debtors-prisons/ (last visited Oct. 6, 2015). Additionally, the provision
made the list of ten ways that Colorado made history in 2014. Nathan Woodliff-Stanley, From
Pot to Protests: 10 Ways Colorado Made History in 2014, HUFF POST (Mar. 2, 2015),
http://www.huffingtonpost.com/nathan-woodliffstanley-/from-pot-to-protests-10w_b_6402052.html.
390. Act of May 9, 2014, ch. 164, 2014 Colo. ALS 164, (codifies as amended at COLO. REV.
STAT. § 18-1.3-702 (2015)).
391. Id. (amending COLO. REV. STAT. § 18-1.3-702(a) (2013)); Recent Legislation, supra note
363, at 1315–16 (classifying the change as “a subtle but important fix that captures court costs and
fees in addition to fines”).
392. Act of May 9, 2014, ch. 164, 2014 Colo. ALS 164, (codifies as amended at COLO. REV.
STAT. § 18-1.3-702 (2015) (amending COLO. REV. STAT. § 18-1.3-702(2)(a) (2013))).
393. Id. (amending COLO. REV. STAT. § 18-1.3-702(3)(a) (2013)).
394. Id. (amending COLO. REV. STAT. § 18-1.3-702(3)(c) (2013)).

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Moreover, the amendment eliminates pay or serve warrants, by providing
that courts may only issue warrants for failure to appear.395 A criticism of
the Colorado approach is that it fails to define “undue hardship.” 396
B. Hybrid Approach
Instead of trying to completely overhaul the system by eliminating
monetary sanctions or setting fines as a percentage of income, a more
practical and less extreme approach—given budgetary issues and the
information currently available to courts—would be to eliminate the most
egregious sanctions, provide flexibility to rely on earning levels in setting
sanctions, and establish procedures to ensure that courts enforce the
restrictions that the Supreme Court established in Bearden. 397
As described in Part II, Bearden requires that a court assess an individual’s ability to pay and alternative measures of punishment before revoking probation and incarcerating a defendant for failure to pay a fine or
restitution. 398 Although the Bearden Court set forth these restrictions more
than thirty years ago, courts have not adhered to its mandate.399 To comply
with Bearden, states should follow the lead of Ohio and Colorado in establishing practical methods for reducing the incidence of debtors’ prisons.
Both plans recognize the due process and equal protection considerations
developed in Bearden that people should not be incarcerated simply because they are unable to pay criminal justice debt. This Section proposes a
system that uses the Ohio and Colorado plans as models to establish a
practical method of enforcing the requirements of Bearden but also
incorporates the abolition of certain charges and sets certain fines based on
income levels.
1. Determine the True Nature of Charges and Whether Charges
Should be Assessed
The first step in deciding whether incarceration should be permitted
for the failure to pay a monetary charge is to assess the primary purpose for
the charge. In practice, the terms “fines,” “fees,” “costs,” and “restitution,”
are often used interchangeably. 400 Legislatures and courts should evaluate

395. See id. (striking provision in COLO. REV. STAT. § 18-1.3-702(2) (2013) stating “If the
defendant fails to pay a fine as directed, the court may issue a warrant for his or her arrest . . . .”).
396. Recent Legislation, supra note 363, at 1316–17.
397. Ruback, supra note 82, at 574 (“That state courts do not follow the law does not necessarily mean that all economic sanctions should be abolished. Rather, actions should be taken to
make the courts follow the law.”).
398. Bearden v. Georgia, 461 U.S. 660, 667–72 (1983); see supra Part II B.
399. See supra Parts II.B.1 & III.B.
400. See Logan & Wright, supra note 24, at 1203–08 (discussing how the categorization of
criminal justice debt impacts its treatment).

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monetary charges based on their primary penological rationale and recognize that other reasons for charges may exist. The label “fine” should be
reserved for charges that have a primarily punitive or deterrent purpose,
while “restitution” should be for charges primarily designed to compensate
victims, and “fees” should refer to charges and costs that are primarily
designed to reimburse expenses.
Analyzing the true nature of a charge would provide courts and legislatures the opportunity to determine if the charge is one that should be
imposed. 401 For example, a case could be made that courts should not require application fees or reimbursement charges for public defenders. 402
Such charges disproportionately affect indigent clients and may leave them
without representation if they cannot afford to pay. The process could also
be used to help determine whether to eliminate or reduce charges that are
merely used to collect revenue for non-criminal justice matters.403 For example, the Ferguson report stressed the problems that occur when municipalities improperly use the criminal justice system for revenue collection
rather than public safety. 404
The process should also examine situations where imposition of fees is
fiscally counterproductive. 405 For example, a study in Rhode Island from
2005 to 2007 found that “15% of the incarcerations [for court debt] cost the
state more than the amount owed by the individuals.”406 Reforms following
impact analysis studies of LFOs in Rhode Island led to reductions in incarceration costs to the state and an increase in criminal justice debt collect-

401. An additional consideration that is beyond the scope of the article is whether a fine violates the Eighth Amendment’s restriction on “excessive fines.” U.S. CONST. amend. VIII. For
recent discussions regarding renewed calls for the use of the Eighth Amendment to justify restrictions on criminal justice sanctions, see Beth A. Colgan, Reviving the Excessive Fines Clause,
102 CAL. L. REV. 277 (2014); EISEN, supra note 39, at 6–7; Eisen, supra note 104; Development
in the Law Policing, supra note 307, at 1742–45.
402. Beckett & Harris, supra note 12, at 526–27. A detailed discussion of whether fees and
charges should be assessed for public defenders is beyond the scope of this Article. For a discussion addressing the application fee issue, see Wright & Logan, supra note 109. For calls to end
the use of public defender charges, see AM. CIVIL LIBERTIES UNION, supra note 12, at 11.
403. Logan & Wright, supra note 24, at 1206–07 (discussing cases, including cases involving
charges for a law library, overhead, and overtime payments where “courts have invalidated various costs and fees when the connection between the assessment and its particular use [was] too
attenuated.”); Ruback, supra note 82, at 576 (suggesting elimination of fees especially those at the
county level designed for revenue generation).
404. U.S. DEP’T OF JUSTICE, supra note 90, at 2.
405. See, e.g., PATEL & PHILIP, supra note 240, at 11 (suggesting that jurisdictions perform an
“impact analysis of proposed and existing fees” to determine “whether a policy is fiscally sound,
or merely a hypothetical revenue source that will actually cost more to implement than it generates
in revenue”). For more details about the fiscally counterproductive nature of incarcerating indigents, see infra note 39 and accompanying text.
406. RHODE ISLAND FAMILY LIFE CTR., COURT DEBT & RELATED INCARCERATION IN
RHODE
ISLAND
4
(2007),
http://www.realcostofprisons.org/materials/Court_Debt_and_Related_Incarceration_RI.pdf.

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ed. 407 The reforms in Rhode Island included allowing judges to establish
payment plans and waive fees and fines for those unable to pay. 408 Additionally, to prevent unnecessary jail time, judges are required to promptly
hear cases involving individuals arrested for failure to appear at payment
hearings. 409
Additionally, courts and legislators could look at standardizing charges
to combat allegations about discriminatory treatment in the system. 410 Such
an approach could help alleviate concerns that the judicial system is more
interested in revenue collection than the administration of justice.
One approach to evaluating fines and fees would be to use independent
commissions. Professors Wayne Logan and Ronald Wright advocate the
use of such commissions “to assess, monitor, and control the everexpanding, pell-mell collection of LFOs.” 411 Under their proposal, “[t]he
commission should comprehensively review existing LFOs, approve newly
proposed LFOs, and collect and publish data relevant to their legal and policy desirability.” 412 Independent commissions with a broad range of interested parties could further reduce conflicts of interest and concerns over excessive reliance on revenue generation. 413 Additionally, independent
commissions could create much needed transparency by evaluation and
publication of their findings on existing and proposed fines and fees. 414
This would allow for comparison of fines and fees among municipalities
and provide for more effective public scrutiny of local practices.415
2.

Prohibit Incarceration for Failure to Pay Reimbursement
Charges

Having established the true nature of a charge, courts should not be
permitted to use the threat of imprisonment as a method of collecting funds
that will merely reimburse costs or expenses of those involved in the
criminal justice system. In such circumstances, the beneficiaries of the
407. See, e.g., PATEL & PHILIP, supra note 240, at 13 (reporting a reduction of “$190,000 in
marginal costs” and an annual increase of over $160,000 in funds collected).
408. Id.
409. Id.
410. See, e.g., CARL REYNOLDS ET AL., TEX. OFFICE OF COURT ADMINISTRATION, A
FRAMEWORK TO IMPROVE HOW FINES, FEES, RESTITUTION, AND CHILD SUPPORT ARE ASSESSED
COLLECTED
FROM
PEOPLE
CONVICTED
OF
CRIMES
27–30
(2009),
AND
https://csgjusticecenter.org/wp-content/uploads/2013/07/2009-CSG-TXOCA-report.pdf (describing a plan designed to “[c]larify and consolidate the sprawling variety of state and local fees and
costs into a comprehensible package”); see also Burch, supra note 345, at 542 (discussing the
Texas proposal).
411. Logan & Wright, supra note 24, at 1178.
412. Id. at 1215.
413. Id. at 1215–26.
414. Id. at 1221–26.
415. Id. at 1222.

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payments should be limited to the same remedies available to creditors and
collectors of civil debts. For example, when a defendant uses a public defender and then fails to pay the fees, the state can threaten incarceration for
failure to pay. But when a defendant hires a private attorney and then fails
to pay his attorney’s fees, the attorney would not be able to employ the
same coercive collection techniques. The state should be limited to the
same remedies as the private attorney. 416 The Ohio Plan recognizes this difference by stating that while non-payment of fines may result in incarceration, non-payment of fees and costs are civil obligations subject only to civil remedies. 417
3.

Establish Guidelines and Procedures for Determination of
Indigency for Failure to Pay Fines or Restitution

Under the hybrid approach to reforming modern-day debtors’ prisons,
individuals should not be imprisoned for the failure to pay fines or
restitution if the failure to pay is due to their inability to pay. As part of the
process for making the ability-to-pay determination, courts should only
allow incarceration after the court has given the defendant notice and had a
hearing where specific findings of ability to pay are made on the record.418
Moreover, defendants should be notified of their right to counsel and be
provided a court-appointed attorney if they are unable to afford one.419 The
ability-to-pay determination should, as outlined under the Colorado plan,
take into account the potential undue hardship not only to the defendant but
also to the defendant’s dependents. 420

416. Paul M. Stein, Note, Imprisonment for Nonpayment of Fines and Costs: A New Look at
the Law and the Constitution, 22 VAND. L. REV. 611, 631 (1969).
417. SUPREME COURT OF OHIO, supra note 373.
418. As discussed, the Ohio plan requires notice of a hearing and specific findings before incarcerating an individual for failure to pay. See infra notes 376 to 378 and accompanying text.
419. AM. CIVIL LIBERTIES UNION, supra note 12, at 11 (recommending the use of courtappointed counsel for criminal justice debt hearings); AM. CIVIL LIBERTIES UNION OF WASH. &
COLUMBIA LEGAL SERVS., Modern-Day Debtors’ Prisons: The Ways Court-Imposed Debts Punish
People
for
Being
Poor
20
(2014),
https://acluwa.org/sites/default/files/attachments/Modern%20Day%20Debtor’s%20Prison%20Final%20(3).p
df (advocating “assistance of counsel [for individuals] whenever appearing in court or signing an
order to be entered with the court for LFO collections”). As a part of a settlement agreement in a
federal action, the City of Montgomery, Alabama established procedures for enforcing the indigency hearing requirements of Bearden in its municipal courts. These procedures include the appointment of a public defender in all indigency hearing matters. Montgomery Settlement, supra
note 214, ¶ 5.
420. COLO. REV. STAT. § 18-1.3-702(3)(a) (2015). Texas criminal procedure requires that a
court consider “the defendant’s employment status, earning ability, and financial resources; and
any other special circumstances that may affect the defendant’s ability to pay, including child support obligations and . . . any financial responsibilities owed by the defendant to dependents or restitution payments owed by the defendant to a victim” in assessing whether misdemeanants should
be required to reimburse a county for jail time. TEX. CODE CRIM. PROC. ANN. art. 42.038(d)

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To help streamline and standardize the process, specific guidelines and
forms should be developed to allow courts to address the inability-to-pay
issue properly. 421 Although this may seem like a heavy burden, courts routinely make assessments about an individual’s need for a public defender. 422
A similar process should be developed for determining ability to pay. For
example, a settlement by the City of Montgomery, Alabama requires that
for the next three years its municipal courts will have indigency hearings in
failure to pay matters and establishes procedures for the hearings. 423 At
these hearings, courts will rely on the federal poverty level in determining
indigency and will be able to inquire about information listed in defendants’
affidavits of substantial hardship. 424
In cases where courts find inability to pay, courts should be authorized
to use alternative methods, including a reduction in the amount of the
monetary sanction. 425 Allowing courts to reduce fees and fines in cases of
indigency has the appeal of the day-fine system in making the penalties
proportionate to the defendant’s earning level. Unlike switching to a dayfine system, this process would not require a complete overhaul of the system used to impose monetary sanctions. Instead, it would be limited to cases of indigency and would be just one of the alternative methods available

(West 2006). A 2010 study suggests that Texas extend this requirement to other fee considerations and that other states adopt this requirement. BANNON ET AL., supra note 37, at 29.
421. AM. CIVIL LIBERTIES UNION, supra note 12, at 11; AM. CIVIL LIBERTIES UNION OF
WASH. & COLUMBIA LEGAL SERVS., supra note 419, at 19 (advocating the use of “clear statewide
criteria for determining a person’s ability to pay LFOs”).
422. See, e.g., WASH. STATE OFFICE OF PUB. DEFENSE, DETERMINING AND VERIFYING
INDIGENCY FOR PUBLIC DEFENSE 13−19 (2014), http://www.opd.wa.gov/documents/01852014_Determining_Indigency.pdf (discussing the process for determining indigency for the purposes of obtaining a public defender in Washington state). The topic of determining eligibility for
counsel for indigent defendants is beyond the scope of this Article. For more detailed information, see 3 WAYNE R. LAFAVE, JEROLD H. ISRAEL, NANCY J. KING & ORIN S. KERR,
CRIMINAL PROCEDURE § 11.2(g) (3d ed. 2014) (discussing indigency standards); Wade R. Habeeb, Annotation, Determination of Indigency of Accused Entitling Him to Appointment of Counsel, 51 A.L.R.3d 1108, 1108−24 (1973).
423. Montgomery Settlement, supra note 214, at app. 1.
424. Id. But see John P. Gross, Too Poor to Hire a Lawyer but Not Indigent: How States Use
the Federal Poverty Guidelines to Deprive Defendants of Their Sixth Amendment Right to Counsel, 70 WASH. & LEE L. REV. 1173, 1215−18 (2013) (advocating the use of the Center for Women’s Welfare’s Self-Sufficiency Standards rather than the Federal Poverty Guidelines for determining eligibility for a public defender).
425. The Supreme Court in Bearden identified that courts could consider “the propriety of
reducing the fine” as an alternative to incarceration. Bearden v. Georgia, 461 U.S. 660, 674
(1983).

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to the court. 426 Other alternatives to incarceration include payment plans
and community service. 427
4. Provide Notice, Training, and a Forum for Lodging Complaints
Merely setting up a comprehensive system is not sufficient unless parties are aware of the available protections and safeguards. As in Ohio,
bench cards should be distributed to courts explaining the proper procedures to follow. 428 The Ohio Plan also provides training for judges and
court personnel. 429 Training should be made available for all parties involved in assessing and collecting charges including judges, court staff,
probation officers, collectors, prosecutors, police officers, public defenders,
and defendants. While municipalities might balk at the expenses involved
with training, they should be reminded that incarceration of those unable to
pay is often more costly than the amounts recovered. 430 Moreover, the improper incarceration of indigents for failure to pay may subject municipalities to costly lawsuits and federal investigations.431
Pro-bono clinics, legal-aid services, and law students all offer the potential for helping to educate indigent defendants about their rights.432
Clear notices of procedures and rights should be provided to all defendants,
posted in courtrooms, and provided on all citations.433
426. Bearden requires courts to consider the availability of “adequate alternative methods of
punishing the defendant” before revoking probation. Bearden, 461 U.S. at 668–69.
427. See, e.g., Montgomery Settlement, supra note 214, at app. 1 (listing payment plans and
community service as alternatives to incarceration for those who the courts finds do not have the
ability to pay).
428. For a discussion of the Ohio bench card, see supra notes 373 to 380 and accompanying
text.
429. Ohio Bans Debtors’ Prisons, supra note 372, at 61; see also AM. CIVIL LIBERTIES
UNION, supra note 12, at 11 (suggesting training for judges and court officials). Similarly, the
Montgomery settlement also requires the training of public defenders, and prosecutors. See
Montgomery Settlement, supra note 214, ¶¶ 5–6.
430. See PATEL & PHILIP, supra note 240, at 14 (“Timely ability-to-pay determinations also
save states money, allowing states to avoid needless costs incurred in futile collection attempts.”).
For a discussion of how incarcerating individuals for failure to pay is fiscally counterproductive,
see infra note 405 to 406 and accompanying text.
431. See, e.g., Ferguson Complaint, supra note 1, ¶ 1; Jennings Complaint, supra note
227, ¶ 1; U.S. DEP’T OF JUSTICE, supra note 90; Shapiro, supra note 12.
432. See, e.g., Thomas F. Geraghty, The Criminal/Juvenile Clinic as a Public Interest Law
Office: Defense Clinics; The Best Way to Teach Justice, 75 MISS. L.J. 699 (2006); Steven Zeidman, Sacrificial Lambs or the Chosen Few?: The Impact of Student Defenders on the Rights of the
Accused, 62 BROOK. L. REV. 853 (1996).
433. AM. CIVIL LIBERTIES UNION OF OHIO, supra note 364 (suggesting making available
printed and online information regarding rights of defendants); AM. CIVIL LIBERTIES UNION OF
WASH. & COLUMBIA LEGAL SERVS., supra note 419 (suggesting that courts “develop educational
materials to make sure that individuals understand that ability to pay is a crucial issue, are informed about mechanisms for seeking relief, and are aware of their right to counsel”); BETTER
TOGETHER, MISSOURI COUNCIL FOR A BETTER ECONOMY, PUBLIC SAFETY-MUNICIPAL COURTS,
15 (2014), http://www.bettertogetherstl.com/wp-content/uploads/2014/10/BT-Municipal-Courts-

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A system should be established for allowing defendants to report abuses in the collection of criminal justice debt. Defendants should have a forum to file complaints. 434 Consumers who have complaints against civil
debt collectors have the ability to file complaints with the Consumer Financial Protection Bureau (“CFPB”). 435 The system allows consumers to submit complaints of abuses by debt collectors via the internet, mail, telephone,
or fax. 436 The CFPB then, in turn, submits the complaints to the collectors
to help resolve disputes. 437 A similar system should be adopted to deal with
complaints in the collection of criminal justice debt.
5. Establish Effective Enforcement Mechanisms
Given the track record of courts’ non-compliance with the requirements of Bearden, reporting regarding use of ability-to-pay hearings, monitoring such hearings, and sanctioning violations are necessary. 438 Judicial
oversight could be conducted through existing state judicial review and
conduct processes. Additionally, the independent commission approach
suggested by Professors Logan and Wright could also create a system for
monitoring and tracking the use and enforcement of LFOs. 439 Recording
court hearings would assist in monitoring courtroom procedures and investigating courtroom complaints.440
To evaluate the outsourcing of services to private parties, oversight
and reporting are essential. As a condition to performing services for municipalities, private parties should be required to report to municipalities the
amounts collected from defendants and how such amounts were allocated
(for example, amounts allocated to fees or fines). 441 Such information
should be available for public review.
Report-Full-Report1.pdf (suggesting that “a basic list of rights, procedures, and consequences
should be listed on the back of every municipal citation issued” and that the list should be “prominently displayed at the entrance of every court session”).
434. HUMAN RIGHTS WATCH, supra note 30, at 8 (suggesting “a mandate to receive and investigate confidential complaints of abusive behavior involving private probation firms from probationers and other members of the public”).
435. See Consumer Complaint Database, CONSUMER FIN. PROT. BUREAU,
http://www.consumerfinance.gov/complaintdatabase/ (last visited Dec. 7, 2015).
436. CONSUMER FIN. PROT. BUREAU, FAIR DEBT COLLECTION PRACTICES ACT: CFPB
ANNUAL
REP.
11
(2013),
http://files.consumerfinance.gov/f/201303_cfpb_March_FDCPA_Report1.pdf.
437. Consumer Complaint Database, supra note 435.
438. See AM. CIVIL LIBERTIES UNION OF WASH. & COLUMBIA LEGAL SERVS., supra note 419
at 20 (advocating “expand[ing] reporting requirements to account for the cost of collection
LFOs”).
439. Logan & Wright, supra note 24, at 1226.
440. See Montgomery Settlement, supra note 214, ¶ 1 (requiring recording of court proceedings as part of the City of Montgomery, Alabama’s settlement agreement).
441. HUMAN RIGHTS WATCH, supra note 30, at 8–10 (recommending the publication of private probation company collection information and use of oversight mechanisms including inspec-

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If violations of procedures are found or reported, they should be quickly investigated, especially given the potential for loss of liberty in these cases. To the extent violations are proven, sanctions should be issued and
published so that the public is made aware of the parties involved. For example, judges could be disciplined for violations,442 and contracts with third
parties could provide penalties for violations and non-compliance, including
loss of future services from the jurisdiction. 443 Publication of sanctions and
penalties imposed on actors involved in abuses (including judges and private probation parties) should also act as a deterrent to future violations and
should create more accountability for public and private parties. 444 Additionally, making the public aware of the efforts at reform should help quell
some of the public distrust issues by allowing the public to understand that
the system is addressing the abuses and that relief for abuses is available.
Finally, we need to continually monitor and study our efforts and
mechanisms. Given the recent Ohio and Colorado plans, we should accumulate data to assess whether these systems are working. Initial reports
from the Ohio System have been favorable, as an Ohio ACLU lawyer has
stated “abuses have largely been stamped out.” 445 On the other hand, the
ACLU of Colorado has recently alleged that since January 2014, Colorado
Springs has violated Colorado’s new legislation by using “pay or serve”
sentences to incarcerate hundreds of indigent individuals to pay off their
fines at a rate of $50 per day. 446 In three-quarters of these cases, individuals
were incarcerated for offenses that were only punishable by fines.447
tions of private probation companies). Georgia has enacted legislation that became effective July
1, 2015 establishing oversight and requiring transparency and financial reporting requirements for
private probation companies. H.B. 310, 153rd Gen. Assemb., Reg. Sess. (Ga. 2015). For a description of the legislation, see 2015 Session of the General Assembly, ACCG LEGISLATIVE
UPDATE,
May
2015,
at
6,
http://www.accg.org/library/external/2015_5_15_Legislative%20Update%20FINAL%20EV.pdf.
442. See, e.g., Ohio State Bar Ass’n v. Goldie, 119 Ohio St. 3d 428, 2008-Ohio-4606, 894
N.E.2d 1226, at ¶¶ 17–18 (reprimanding a judge who failed to follow the state’s requirements for
determining ability to pay before incarcerating a defendant for failure to pay a fine). But see Jeremy Pelzer, Punishment Is Rare for Judges Who Illegally Jail Poor Ohioans for Court Debts,
(Aug.
5,
2014),
CLEVELAND.COM
http://www.cleveland.com/open/index.ssf/2014/08/punishment_is_rare_for_judges.html (discussing difficulties in disciplining judges).
443. See, e.g., Montgomery Settlement, supra note 214, ¶ 8 (establishing a three-year ban on
contracts with private probation companies).
444. For example, in cases of elected judges, receiving a public reprimand could result in not
being re-elected. See Pelzer, supra note 442 (reporting ACLU of Ohio’s Mike Brickner’s comments regarding how disciplining judges could lead to negative publicity, which could result in
voters electing a different judge).
445. Ohio Bans Debtors’ Prisons, supra note 372, at 61.
446. Letter from Nancy Woodliff-Stanley & Mark Silverstein, ACLU of Colo. to Wynetta
Massey, Colorado Springs City Attorney 1–3 (Oct. 22, 2015), http://static.aclu-co.org/wpcontent/uploads/2015/09/2015-10-22-Massey-Silverstein-Wallace-pay-or-serve.pdf; Press Release, Am. Civil Liberties Union of Colo., Colorado Springs Sentences Hundreds of Impoverished
People to Debtors’ Prison in Violation of U.S Constitution and State Law (Oct. 22, 2015),

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V. CONCLUSION
Despite the popular notion that modern society has abolished debtors’
prisons, Americans continue to be incarcerated simply because they are unable to pay their debts. The same concerns that prompted calls to end debtors’ prisons in the eighteenth and nineteenth centuries have returned as indigent defendants are unable to pay criminal justice debts. The monetary
charges imposed upon defendants are often unrelated to the alleged crimes
and unfairly discriminate against the poor and minorities. The need for revenue generation is often in conflict with the goals of the criminal justice
process. As a result, the assessment, imposition, and collection of criminal
justice debt have created distrust in the system, and indigent defendants and
their families have become trapped in what seems like an endless poverty
cycle. It is time to restore that trust by adopting measures to end debtors’
prisons. Moreover, once they are abolished, we need to remain vigilant to
ensure that debtors’ prisons never return.

http://aclu-co.org/colorado-springs-sentences-hundreds-of-impoverished-people-to-debtorsprison-in-violation-of-u-s-constitution-and-state-law/.
447. Letter from Nancy Woodliff-Stanley & Mark Silverstein, ACLU of Colo. to Wynetta
Massey, Colorado Springs City Attorney, supra note 446, at 2 (including over 200 cases involving
soliciting for charity near streets or highways and over sixty-five cases involving being in city
parks after closing time).