Cross-posted on the American Constitution Society Blog
Protests in Ferguson, Mo. led to investigations that uncovered a deeply problematic justice system that pulled thousands of people into a web of criminal justice debt and aggressive debt collection practices. Among those harsh enforcement practices: Driver’s license suspension for failure to pay court-imposed debts. Using driver’s license suspension to enforce debt payment is not unique to Ferguson. Today, driver’s license suspensions are a frequently used tool to enforce collection of criminal justice debt.
“Criminal justice debt” refers to the accumulation of fees and fines that a defendant acquires while being processed through the justice system. Fees and fines may be imposed for anything from restitution to make the victim whole to punitive fines designed to deter future wrongdoings. Most commonly, courts impose user fees to recover operating costs. These fees are imposed at various stages throughout the process; including charges for bookings, jail stays, prosecution, public defense and probation services.
Fees and fines do not disappear once a person has been convicted and incarcerated. Rather, those costs linger. When combined with other debts most people face – credit card debt, child support and insurance payments, for example – the additional costs of criminal justice debt can be difficult or impossible to pay. In California alone, there is more than $10 billion in uncollected, court-ordered debt.
Enter collection enforcement, such as suspension of a driver’s license. It is growing in popularity. In 2010, the Brennan Center reported that at least eight of the 15 states with the largest prison populations suspended licenses based on missed debt payments: California, Florida, Louisiana, Michigan, North Carolina, Pennsylvania, Texas and Virginia. At least four states suspended licenses for failure to appear in court for an arrest warrant, the underlying cause being failure to pay debts. In the Lone Star state, individuals convicted of a drug offense have their licenses suspended for 180 days. In Florida, a drug conviction leads to license suspension for one year. Nationally, 40 percent of license suspensions are for unpaid traffic tickets, unpaid child support and drug offenses.
Driver’s license suspension for failure to pay child support is particularly troubling. All 50 states have statutory or administrative provisions to suspend licenses for not complying with child support orders. In Virginia, for example, a 2011 bill authorized the Department of Social Services to suspend a license for delinquent child support payments and prohibited reinstatement until delinquency is paid in full. Michigan, too, has a bill to suspend a driver’s license if a parent is behind in payments.
Suspensions are counterintuitive, as the enforcement mechanism actually inhibits future repayment of debt. Suspending a person’s license impedes one’s ability to maintain employment and earn money to satisfy the debt. It can also complicate attending court appearances. The Justice Department’s recent report on Ferguson profiled a woman facing a driver’s license suspension. She explained, “I am a hard working mother of two children and I cannot by any means take care of my family or work with my license being suspended and unable to drive.” This woman is not alone. In one of Milwaukee’s poor neighborhoods, two out of three African American men of working age does not have a license, reported NPR in 2015. In California, more than 17 percent of adults have suspended licenses that “make it harder for people to get and keep jobs, harm credit ratings and raise public safety concerns.”
Driver’s license suspension can lead to unnecessary incarceration, too. It is unconstitutional to incarcerate a person for failure to pay court-debts because he or she cannot pay; nevertheless, people are often incarcerated for failure to adhere to debt collection enforcement practices. Driving with a suspended license leads to substantial fees, possible jail time, additional suspension time or license revocation – all of which can prolong a person’s entanglement with the justice system and increase someone’s chances of being incarcerated for other offenses stemming from nonpayment, like contempt of court.
License suspension can be a valuable enforcement tool, particularly for those who commit offenses related to unsafe driving practices. Someone driving under the influence of alcohol or with repeated, serious moving violations should face suspension of their license to ensure public safety. But using driver’s license suspension to enforce debt collection – with no other relation to the offense – creates more challenges to the offender than it’s worth.
Some lawmakers are taking steps to reduce counterproductive reliance on driver’s license suspensions. Here are some examples:
- In St. Paul, Minn., Ramsey County Prosecutor John Choi piloted the Driving Diversion Program in 2009 to assist individuals charged with driving after suspension earn back their license while keeping a temporary license.
- In Wisconsin, Milwaukee officials created the Center for Driver’s License Recovery and Employability in 2007 to connect people with services and help regain licenses.
- In 2012, Washington stopped suspending licenses for failure to pay nonmoving traffic violations. Suspensions have fallen by half, according to a recent New York Times article.
- In California, new legislation – Senate Bill 405 – would require counties to create amnesty programs for people with outstanding criminal justice debts. It would also require the DMV to restore driving privileges to those in the program.
These reforms are great steps toward reducing the challenges of criminal justice debt. Here’s another: Impose fees and fines in line with what an offender can actually pay. Rather than creating diversion and debt forgiveness programs, measure an individual’s ability to pay the debts before providing alternatives to cope with non-willful nonpayment. As courts increasingly struggle to address criminal justice debt, this analysis will prove even more potent.