Reforming Criminal Justice Debt

December 15, 2011

Last year, the Brennan Center published a comprehensive national report on the negative consequences criminal justice debt has on poor people. The report highlighted how underfunded criminal justice systems have sought to fill budget gaps by administering fees, fines and surcharges more and more aggressively, with less and less consideration of people’s ability to pay. Since the initial publication of this report, advocates around the country have mobilized around legal and legislative action to protect poor people from the unfair consequences of criminal justice debt.

Last week in Washington, D.C., at the National Legal Aid and Defenders’ Association (NLADA) Centennial Conference, the Brennan Center hosted a panel to highlight some particularly successful and inspiring efforts. The panel featured Nick Allen of Columbia Legal Services (CLS) in Washington State, Melissa Broome of the Job Opportunities Task Force in Maryland, and Carl Takei of the ACLU’s National Prison Project.

Nick Allen presented his organization’s successful pursuit of legislation for new waivers and reductions of interest on certain fines and fees. Interest on legal debt in Washington accrues at the high rate of 12 percent per year during incarceration, when prisoners are either unemployed, or making extremely minimal rates working inside prisons, and thus effectively unable to make payments. Before the legislation passed, one of CLS’ clients entered prison with $35,000 in debt. By release, his debt was more than $100,000 due to interest accrued. The new legislation allows a person to petition the court, after release, for a waiver of all interest that has accrued on their non-restitution legal debt during incarceration. The legislation received bipartisan support due to its potential for encouraging realistic payments of legal debt, reducing the costs of debt-related re-incarceration over time, and contributing to successful re-entry.

Melissa Broome spoke of the Job Opportunities Task Force’s efforts to pass legislation ensuring that existing statutory fee exemptions for poor parolees are actually enforced. In 2009, a Brennan Center report found that categorical exemptions put into place by the Maryland legislature to protect people who are unable to pay were largely inaccessible and unenforced. The legislature had vested the Parole Commission, a body with which parolees have little ongoing contact, with the exclusive authority to grant exemptions. The Commission routinely imposed the $40-per-month fee, without conducting evaluations of whether parolees should receive exemptions. Resulting debts led parolees to avoid meeting with their parole agents, which would then lead to parole violations and re-incarcerations, costly to the state. After significant advocacy efforts to highlight the negative consequences of inadequate fee exemptions, Maryland this year passed legislation to ensure that parolees are informed of and have better access to the fee exemption process.

Carl Takei outlined the ACLU’s litigation strategy to protect poor people from the rise of new debtors’ prisons in several states. This alarming practice violates the Supreme Court’s decision in Bearden v. Georgia, which dictates that it is a violation of the Fourteenth Amendment to jail someone who has failed to pay fines or restitution due to indigence. The ACLU’s report, In For A Penny, details its strategy of litigation and public education to put an end to this unconstitutional practice in Louisiana, Michigan, Ohio, Georgia and Washington.

Last week’s panel showcased promising examples of how to tackle reform in the creation and collection of criminal justice debt, and how to protect poor people from unjust consequences. A forthcoming Brennan Center report will highlight such stories, and provide further examples of achievable reforms that can be implemented across the country. As cash-strapped criminal justice systems continue to enhance debt collection, activists, advocates and policymakers must continue to fight penny-wise, pound-foolish practices and their disproportionate effects on poor people.