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Monetary Sanctions as a Pound of Flesh

America has established a two-tiered system of justice: one for people with financial means and one for people without.

  • Alexes Harris
July 26, 2021
Alfred Gescheidt/Victor de Schwanberg/Science Photo Library
View the entire Punitive Excess series

This essay is part of the Bren­nan Center’s series examin­ing the punit­ive excess that has come to define Amer­ica’s crim­inal legal system.

In their essay intro­du­cing the Bren­nan Center series on Punit­ive Excess, Jeremy Travis and Bruce West­ern ask read­ers to ques­tion the purpose of punish­ment. They write, “punish­ment describes not just what crim­inal justice insti­tu­tions do, but also signi­fies a rela­tion­ship between the state and its citizens.”

Few aspects of the crim­inal legal system illus­trate that as vividly as the system of monet­ary sanc­tions, which requires finan­cial payments from most people who make contact with the crim­inal legal system. In addi­tion to fines asso­ci­ated with specific offenses, they are charged for their court processing, for DNA test­ing, for required post-senten­cing rehab­il­it­at­ive programs (such as drug and alco­hol assess­ment and treat­ment), and even in some instances for the costs of incar­cer­a­tion itself. To use Travis and West­ern’s meas­ure, the rela­tion­ship between the state and citizen in this coun­try, partic­u­larly when the citizen is poor or racial­ized, is one of control, margin­al­iz­a­tion, and perpetual punish­ment.

In most states, all monet­ary sanc­tions must be paid in full before a person is released from court super­vi­sion. In many states, people are unable to vote until all costs are paid. They must remain in constant commu­nic­a­tion with court offi­cials about their living and finan­cial arrange­ments. Not only are monet­ary sanc­tions frequently appen­ded to jail or prison time, so are costs asso­ci­ated with proba­tion and other court mandated require­ments, such as elec­tronic home monit­or­ing.

Since the 1980s, paral­lel­ing the massive growth in convic­tions and incar­cer­a­tion, state and local juris­dic­tions expan­ded the types of fees and fines deman­ded of people convicted of traffic viol­a­tions, juven­ile offenses, misde­mean­ors, and felon­ies. At the same time, the cost to local juris­dic­tions of the expand­ing convic­tion and incar­cer­a­tion rate accel­er­ated as well. As a result, poli­cy­makers turned to the very people convicted to pay for the costs of their own processing and punish­ments. For example, Wash­ing­ton State has a mandat­ory victim penalty assess­ment that must be charged for each misde­meanor ($250) and felony ($500) convic­tion, even if there is no direct victim of the crime in ques­tion.

In some states, judges have actu­ally been gran­ted discre­tion to assess crim­inal defend­ants for the cost of a public defender — in other words, an indi­vidual who cannot afford to pay a lawyer is expec­ted to pay for the lawyer that the state is consti­tu­tion­ally required to provide. Further­more, many juris­dic­tions charge per night in jail or prison. For those too poor to pay, interest, per payment fees, and nonpay­ment penal­ties become penal debt that hangs like a cloud over their famil­ies’ lives.

Many states also allow cities and counties to engage in contracts with private collec­tion compan­ies, and when debt is trans­ferred to these agen­cies, addi­tional collec­tion fees are assessed — as much as 50 percent of the prin­cipal owed. These public-private debt collec­tion arrange­ments affect the indi­vidu­als’ credit scores, limit their employ­ment oppor­tun­it­ies, and inhibit their abil­ity to access hous­ing, educa­tion, and trans­port­a­tion. The price of services such as tele­phone calls, elec­tronic commu­nic­a­tion, video visit­a­tion, and health care include kick­backs from the private compan­ies to local juris­dic­tions — the price the collec­tion agen­cies pay to win exclus­ive contracts.

The system of monet­ary sanc­tions rein­forces our two-tiered system of justice: one for people with finan­cial means and one for people without. Within a soci­ety riven by so much inequal­ity, a system of punish­ment based on economic resources can never be fair or just. This “coerced finan­cial­iz­a­tion” perfectly and purpose­fully places the free­dom of poor and racially margin­al­ized people on a perpetual layaway plan. It’s a system so fully embed­ded in our crim­inal legal system that the Amer­ican Rescue Plan Act, passed by Congress in March 2021 to alle­vi­ate the finan­cial pains of the Covid-19 pandemic, allowed private collect­ors and courts to seize the $1,400 stim­u­lus grants from people burdened with unpaid penal debt, either public or private.

Pain­ful consequences

When they are unable to pay penal debt, people entangled with the crim­inal legal system — already stressed by daily finan­cial choices they must make regard­ing food, health, and child­care — incur addi­tional legal consequences. In many states, they lose their right to drive; then, if appre­hen­ded while driv­ing with a suspen­ded license (even to the job that might enable them to pay their debt), they face renewed incar­cer­a­tion and further finan­cial sanc­tions.

Consequences accel­er­ate, teth­er­ing people to the crim­inal legal system: not only are people who are behind in their payments sent regu­lar court summonses, but in some instances even those making their monthly payments must regu­larly report to the court about their employ­ment and living arrange­ments. This requires many to miss work and to find child­care and trans­port­a­tion (partic­u­larly if their driver’s licenses are suspen­ded) just to attend court hear­ings. When people have been summoned to court but failed to receive notice or chose not to attend out of fear of incar­cer­a­tion, bench warrants are issued for their arrest.

An addi­tional legal consequence related to monet­ary sanc­tions is the over­poli­cing that plagues so many communit­ies of color. Because local govern­ments have come to rely so heav­ily on revenue gener­ated from fines and fees, traffic cita­tions have become a tool for profit-making. This “pock­et­book poli­cing” encour­ages police to use their author­ity and discre­tion to make “pretextual” traffic stops — judge­ment calls that often involve such things as a faulty tail­light, expired license tabs, or an air freshener improp­erly suspen­ded from the rear­view mirror. And when police use their discre­tion to decide whom they are going to pull over, they pull over Black drivers dispro­por­tion­ately more often than white drivers. Black drivers are consequently searched one and a half to two times more often than white drivers. Costly cita­tions for fines and fees fall most heav­ily on those least able to pay them. These fines and fees lead to perpetual state surveil­lance, wealth extrac­tion, and the social control of people who are poor and racially margin­al­ized.

Needed policy reform

Set within the context of the crim­inal legal system, this system of punish­ment is nuanced, but it isn’t complic­ated. Policy implic­a­tions are clear. In fact, recog­niz­ing this system as a purpose­ful mech­an­ism designed by both policy and stat­utes allows us to clearly see that it can be dismantled. This set of guid­ing prin­ciples and prac­tices should be estab­lished by state and local poli­cy­makers and court lead­er­ship.

First, stat­utes must be revised to discon­tinue monet­ary sanc­tions asso­ci­ated with felony convic­tions. There is no reason that someone sentenced to incar­cer­a­tion should also receive finan­cial penal­ties, much less be charged daily room and board fees. Fines and fees charged to people who are sentenced to live behind bars, without access to employ­ment and a living wage, are prima facie excess­ive.

Second, monet­ary sanc­tions are also excess­ive when imposed on chil­dren, the unem­ployed, the unhoused, or those suffer­ing from mental health or chem­ical addic­tion disorders. Burden­ing people who are unable — and who may never be able — to pay fiscal debts is a cruel punish­ment.

Third, fiscal penal­ties attached to lower-level offenses that do not call for incar­cer­a­tion, such as traffic viol­a­tions or misde­mean­ors, must be calib­rated to indi­vidu­als’ abil­it­ies to pay the total sum within, say, two years. Coun­tries around the world rely on day fine systems that calcu­late a score based on both the sever­ity of the offense and the daily wage of the convicted indi­vidual.

Fourth, state and local juris­dic­tions must discon­tinue the prac­tice of suspend­ing driver’s licenses related for nonpay­ment of any court fine and fee and cease issu­ing warrants related to nonpay­ment.

Fifth, state and local juris­dic­tions, along with law enforce­ment agen­cies, must review and revise prac­tices related to pretextual traffic stops. Less than one month after the police killing of Daunte Wright in Brook­lyn Center, Minnesota, the mayor and city coun­cil enacted an ordin­ance to create a new Depart­ment of Community Safety and Viol­ence Preven­tion. Among other things, this restruc­tur­ing of police duties trans­ferred the respons­ib­il­ity of traffic enforce­ment to an unarmed civil­ian unit.

Finally, states must require all juris­dic­tions to report (without names attached, to protect indi­vidual privacy) all monet­ary sentences and fees, regu­larly and system­at­ic­ally, to a state-monitored data­base. Such data should include amounts collec­ted, amounts waived, means of levy (fine, fee, surcharge, resti­tu­tion, etc.), and any addi­tional charges imposed related to nonpay­ment, such as late fees, interest, and collec­tion fees.

The evid­ence is clear: The Amer­ican system of monet­ary sanc­tions is a purpose­ful punish­ment aimed at extract­ing wealth from indi­vidu­als, their famil­ies and communit­ies — a pound of flesh that many just do not have left to give. It is a system that valor­izes those “deserving” of redemp­tion (people with finan­cial means) and stig­mat­izes those deemed not deserving of redemp­tion (people living in poverty).

Impov­er­ished citizens who are sentenced to monet­ary sanc­tions clearly under­stand their rela­tion­ship to the state — they are forever indebted, forever subjec­ted to court and police surveil­lance, control, and punish­ment. We have altern­at­ive punish­ment and rehab­il­it­at­ive options; we just need the will to make these changes.

Alexes Harris, PhD, is the Pres­id­en­tial Term Professor and professor of soci­ology at the Univer­sity of Wash­ing­ton. She is the author of the book A Pound of Flesh: Monet­ary Sanc­tions as a Punish­ment for the Poor.