Aug. 17, 2016
Earlier this month, President Obama shortened the prison sentences of 214 federal inmates, mostly low-level drug offenders. While in office, Obama has granted 562 commutations – more than the past nine presidents combined. More commutations are expected before he leaves the White House next January. According to the Associated Press, most of the 214 people whose sentences were commuted will be getting out of prison in December.
However, for individuals emerging from prison, such as those freed under Obama’s Clemency Initiative, getting out is just the first step. What follows can be a challenging reentry process fraught with barriers to finding employment, locating housing, and receiving public assistance.
On top of all of that, many former prisoners face a mountain of debt after they are released that ranges from hundreds to tens of thousands of dollars. This debt, which can result from debt carried over from life before prison, legal and inmate fees accrued during incarceration, and unpaid child support, is difficult, if not impossible, to pay off after prison. According to Lauren-Brooke Eisen at the Brennan Center for Justice, “successful re-entry into society can be nearly impossible for former inmates who, already facing the difficulty of securing gainful employment with a criminal record, are burdened with immense debt after completing their prison stay.” In fact, in some cases, failure to pay the debt can land them right back behind bars, leading to a vicious cycle of re-incarceration.
This scenario is played out in Netflix’s Orange Is the New Black (I know, I know, I used an example of OITNB in my last post, but it’s just so relevant!) when the character Tasha “Taystee” Jefferson is let out of prison on parole. Several episodes later, she’s back in prison reporting to her friend Poussey Washington that “Minimum wage is some kinda joke, I got a part time job working at Pizza Hut and I still owe the prison $900 in fees I gotta pay back.” Taystee’s scenario is all too common.
So why is the criminal justice system imposing increasing debts on individuals? The most commonly cited rationale is that states and local courts are looking to offset burgeoning incarceration budgets. As the incarceration rate in the U.S. has risen steeply since the 1970s, so have the fiscal costs. According to a 2014 report, the annual cost of corrections has reached more than $80 billion. Presently, all 50 states allow for the imposition of fines on defendants. Further, roughly 63 percent of states impose additional fines due to nonpayment of “legal financial obligations.” These fees, which are often imposed without taking into account the ability to pay, can range from “user fees” for a prisoner’s stay in prison to costs associated with utilizing a public defender.
A 2014 Talk Poverty article lists some of the other fees that correctional facilities across the nation charge their inmates. These fees include restitution payments and contributions to victim funds, as well as daily “room and board” fees, which are authorized in 43 states. Some states charge inmates for medical care. (This map illustrates which states permit correctional facilities to charge inmates for their cost of incarceration as well for medical fees while incarcerated.) Some of the charges are for smaller things like toilet paper and clothing. In 2009, Maricopa County, Arizona, began charging inmates $1.25 a day for meals in the county jail. Though many of these fees are for small amounts, they add up quickly and can result in a defendant emerging from the system with a seemingly insurmountable level of debt.
In addition to the other myriad of fees and fines inmates can incur, owing child support creates a heavy debt burden. More than half of the roughly 2.2 million people incarcerated in the United States are parents, and at least one in five owes child support. Many inmates aren’t aware that child support payments will keep piling up throughout their imprisonment. However, this lack of knowledge does not eliminate the possibility that they may come out owing several times the amount they owed going in. This policy design is also harmful to the parent who isn’t imprisoned as they are in need of the child support but are unable to get it.
A big part of the problem is that in some states, like Georgia and Montana, incarceration is legally considered a form of willful or voluntary unemployment. These states view incarceration as voluntary unemployment because the crime, which led to the inability to work or pay child support, is a voluntary act. This makes it so the non-custodial parent is unable to petition for a reduction in child support payments.
As mentioned above, many former prisoners struggle to find work when released which makes it more difficult to pay off their debt. Approximately 60 percent of former inmates remain unemployed one year after their release. If they are fortunate enough to find a job, they will earn 10 to 40 percent less than similar workers without a history of incarceration. Further, their wages can be garnished to pay fines and fees. If an individual owes money, placing barriers to obtaining a driver’s license is also a common practice among states, even though it frequently impedes an individual’s ability to secure employment. Most important, these fees increase the chance that people will end back behind bars – either for not being able to pay, or because the need to find money right away pushes people towards illicit sources of income.
The system is not supposed to work this way. In the United States, the practice of arresting and jailing people because they cannot pay local court fines and fees was outlawed nearly 200 years ago. More than 30 years ago in the case of Bearden v. Georgia (1983), the U.S. Supreme Court ruled that a judge cannot imprison a person for failure to pay a criminal fine unless the failure to pay was “willful.” Nevertheless at least 15 states have made this a standard practice.
The injustices are compounded when municipalities hire for-profit probation agencies to oversee the collection of misdemeanor fines and the probation of people who have committed minor infractions. Currently, 13 states use for-profit companies to manage their probation services. If people are not able to pay off their fine at sentencing they are then put on probation and are expected to pay companies, such as Judicial Correction Services, Inc, for their services. However, as these companies charge their own fees, many low-income offenders end up paying higher additional fees to their probation agency than they were sentenced to pay initially.
On “Last Week Tonight,” host John Oliver explains, “If you have money, committing a municipal violation may pose you a minor inconvenience. If you don't, it can ruin your life.” He goes on to say that although courts know that not everyone can pay fines, that does not stop them from issuing another warrant, subjecting the individual to arrest, jail, and additional fines and court fees. Oliver ends the segment by saying that, “Not only should municipalities not be balancing their books on the backs of their most vulnerable citizens, but we cannot have a system where committing a minor violation can end up putting you in [jail]."
Most troubling is that these practices have a disparate impact on communities of color. As discussed in the book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, minorities are disproportionately represented in our nation's' jails and prisons. Today, approximately 60% of people in America’s prisons are racial and ethnic minorities. In the words of Michelle Alexander, author of The New Jim Crow, “Like Jim Crow (and slavery), mass incarceration operates as a tightly networked system of laws, policies, customs, and institutions that operate collectively to ensure the subordinate status of a group defined largely by race.” And as communities of color are also disproportionately poor, these particular fines and fees disproportionately affect them.
In recent years, organizations like the American Civil Liberties Union (ACLU) and the Southern Poverty Law Center have filed lawsuits all across the country challenging debt collection practices, including in Alabama, Georgia, Washington State, Ohio, and Michigan. “Across the country, the freedom of too many people is resting on their ability to pay,” said Nusrat Choudhury, an ACLU attorney. “We seek to dismantle that two-tiered system of justice, which disproportionately punishes people of color.”
Some states have also started to take action. In 36 states and DC, incarceration is no longer officially considered "voluntary" impoverishment. In these states, an imprisoned parent is legally entitled to request to have their monthly child support bills modified to as little as $50 a month. In rare cases, it’s even suspended altogether while the individual is incarcerated. However, this still not only requires that the imprisoned parent be aware that the child support order can be modified but also that they file an extensive amount of paperwork.
Meanwhile, action is pending on the federal level. The Obama Administration has authorized a federal law that would reclassify incarceration as involuntary unemployment and stop child support from accruing. These regulations are set to be implemented by states by 2017.
Currently, the high recidivism rates in the United States make it clear that we have failed as a nation to equip prisoners with the tools for successful re-entry. We are releasing them with little to build a life on. The most recent study on recidivism by the Brennan Center for Justice showed that 77 percent of ex-offenders came back into contact with the criminal justice system within five years of their release.
Many recommendations have been made for reforming the use of user fees and the collection of criminal justice debt. Reforms should include advocating for the elimination of jail fees for individuals that the states choose to detain or at the very minimum, setting caps on fees for using the criminal justice system. Improving the assessment of whether an individual is able to pay fees and fines prior to their imprisonment is also an important step. Finally, financial advising before entering prison, as well as before exiting prison, would help prepare people for the realities that they will face once they are released.
Given that the vast majority of incarcerated individuals (95 percent) will one day be released, it is critical that we ensure that they are not unfairly penalized and have the necessary tools to succeed upon rehabilitation. Further, we should move forward with the above recommendations and acknowledge that enforcing the repayment of debts without considering the needs and financial circumstances of returning citizens is ineffective and counterproductive to all parties involved.