Criminal Justice Debt: A Barrier to Reentry
Many states are imposing new and often onerous “user fees” on individuals with criminal convictions. Yet far from being easy money, these fees impose severe – and often hidden – costs on communities, taxpayers, and indigent people convicted of crimes. They create new paths to prison for those unable to pay their debts and make it harder to find employment and housing as well to meet child support obligations.
This report examines practices in the fifteen states with the highest prison populations, which together account for more than 60 percent of all state criminal filings. We focused primarily on the proliferation of “user fees,” financial obligations imposed not for any traditional criminal justice purpose such as punishment, deterrence, or rehabilitation but rather to fund tight state budgets.
Across the board, we found that states are introducing new user fees, raising the dollar amounts of existing fees, and intensifying the collection of fees and other forms of criminal justice debt such as fines and restitution. But in the rush to collect, made all the more intense by the fiscal crises in many states, no one is considering the ways in which the resulting debt can undermine reentry prospects, pave the way back to prison or jail, and result in yet more costs to the public.
• Fees, while often small in isolation, regularly total hundreds and even thousands of dollars of debt. All fifteen of the examined states charge a broad array of fees, which are often imposed without taking into account ability to pay. One person in Pennsylvania faced $2,464 in fees alone, approximately three times the amount imposed for fines and restitution. In some states, local government fees, on top of state-wide fees, add to fee burdens. Thirteen of the fifteen states also charge poor people public defender fees simply for exercising their constitutional right to counsel. This practice can push defendants to waive counsel, raising constitutional questions and leading to wrongful convictions, over-incarceration, and significant burdens on the operation of the courts.
• Inability to pay leads to more fees and an endless cycle of debt. Fourteen of the fifteen states also utilize “poverty penalties” – piling on additional late fees, payment plan fees, and interest when individuals are unable to pay their debts all at once, often enriching private debt collectors in the process. Some of the collection fees are exorbitant and exceed ordinary standards of fairness. For example, Alabama charges a 30 percent collection fee, while Florida permits private debt collectors to tack on a 40 percent surcharge to underlying debt.
• Although “debtors’ prison” is illegal in all states, reincarcerating individuals for failure to pay debt is, in fact, common in some – and in all states new paths back to prison are emerging for those who owe criminal justice debt. All fifteen of the states examined in this report have jurisdictions that arrest people for failing to pay debt or appear at debt-related hearings. Many states also use the threat of probation or parole revocation or incarceration for contempt as a debt-collection tool, and in some jurisdictions, individuals may also “choose” to go to jail as a way to reduce their debt burdens. Some of these practices violate the Constitution or state law. All of them undercut former offenders’ efforts to reintegrate into their communities. Yet even though over-incarceration harms individuals and communities and pushes state budgets to the brink, states continue to send people back to prison or jail for debt-related reasons.
• As states increasingly structure their budgets around fee revenue, they only look at one side of the ledger. Strikingly, there is scant information about what aggressive collection efforts cost the state. Debt collection involves myriad untabulated expenses, including salaried time from court staff, correctional authorities, and state and local government employees. Arresting and incarcerating people for debt-related reasons are particularly costly, especially for sheriffs’ offices, local jails, and for the courts themselves. For example, Brennan Center analysis of one North Carolina county’s collection efforts found that in 2009 the government arrested 564 individuals and jailed 246 of them for failing to pay debt and update address information, but that the amount it ultimately collected from this group was less than what it spent on their incarceration.
• Criminal justice debt significantly hobbles a person’s chances to reenter society successfully after a conviction. In all fifteen of the examined states, criminal justice debt and related collection practices create a significant barrier for individuals seeking to rebuild their lives after a criminal conviction. For example, eight of the fifteen states suspend driving privileges for missed debt payments, a practice that can make it impossible for people to work and that can lead to new convictions for driving with a suspended license. Seven states require individuals to pay off criminal justice debt before they can regain their eligibility to vote. And in all fifteen states, criminal justice debt and associated collection practices can damage credit and interfere with other commitments, such as child support obligations.
• Overdependence on fee revenue compromises the traditional functions of courts and correctional agencies. When courts are pressured to act, in essence, as collection arms of the state, their traditional independence suffers. When probation and parole officers must devote time to fee collection instead of public safety and rehabilitation, they too compromise their roles.
All of these policies are at odds with America’s growing commitment to reduce recidivism and over-incarceration, and to promote reentry for those who have been convicted of crimes. As states look to ways to shave their prison and jail budgets without compromising public safety, eliminating the debt-based routes back to jail – both direct and indirect – is an obvious choice for reform.
In light of these findings, this report makes the following recommendations for reforming the use of user fees and the collection of criminal justice debt in state and local policy environments:
• Lawmakers should evaluate the total debt burden of existing fees before adding new fees or increasing fee amounts.
• Indigent defendants should be exempt from user fees, and payment plans and other debt collection efforts should be tailored to an individual’s ability to pay.
• States should immediately cease arresting and incarcerating individuals for failure to pay criminal justice debt, particularly before a court has made an ability-to-pay determination.
• Public defender fees should be eliminated, to reduce pressures that can lead to conviction of the innocent, over-incarceration, and violations of the Constitution.
• States should eliminate “poverty penalties” that impose additional costs on individuals who are unable to pay criminal justice debt all at once, such as payment plan fees, late fees, collection fees, and interest.
• Policymakers should evaluate the costs of popular debt collection methods such as arrests, incarceration, and driver’s license suspensions – including the salary and time spent by employees involved in collection and the effect of these methods on reentry and recidivism.
• Agencies involved in debt collection should extend probation terms or suspend driver’s licenses only in those cases where an individual can afford to repay criminal justice debt but refuses to do so.
• Legislatures should eliminate poll taxes that deny individuals the right to vote when they are unable to pay criminal justice debt.
• Courts should offer community service programs that build job skills for individuals unable to afford criminal justice debt.
Alicia Bannon was a Liman Fellow and Counsel in the Brennan Center’s Justice Program at the time she conducted her work on this report. She is currently a John J. Gibbons Fellow in Public Interest and Constitutional Law at Gibbons P.C. Previously, Ms. Bannon clerked for the Hon. Sonia Sotomayor in the U.S. Court of Appeals for the Second Circuit and the Hon. Kimba M. Wood in the U.S. District Court for the Southern District of New York. She also previously worked at ICS Africa in Kenya and at the Center for Global Development in Washington, D.C. Ms. Bannon received her J.D. from Yale Law School and her A.B., summa cum laude, from Harvard College.
Mitali Nagrecha is currently at the City of Newark Office of Reentry working on policy and contracting in an effort to reduce recidivism and increase workplace participation by people with criminal records. At the time she worked on this report, Ms. Nagrecha was a Simpson Thacher Fellow in the Brennan Center’s Justice Program, working on access to justice issues. Prior to joining the Brennan Center, Ms. Nagrecha worked as a litigation associate at Simpson Thacher & Bartlett LLP. Ms. Nagrecha also served as a Fulbright Scholar in India, where she studied urban development and planning. She earned her B.A. at Cornell University and her J.D. cum laude from The University of Pennsylvania Law School.
Rebekah Diller is Deputy Director of the Justice Program at the Brennan Center. Ms. Diller coordinates litigation, policy research and advocacy to improve access to justice for low-income people and leads the Center’s work on legal financial obligations. Previously, she served as a staff attorney and then director of the New York Civil Liberties Union’s Reproductive Rights Project and as an attorney representing low-income clients in civil cases at Legal Services for the Elderly in Queens and Housing Works, Inc. She received her J.D., with high honors, from New York University School of Law, and her B.A., cum laude, from Rutgers College.