Brick-and-mortar debtors’ prisons were once common in the United States, locked institutions where people were sent to work off unpaid debts.
Two signatories to the Declaration of Independence did time in debtors’ prison; so did Confederate general Robert E. Lee’s father. But by the mid-1800s, the practice of locking up people too poor to pay their debts went out of fashion and was banned under state and federal law.
Among criminal justice reform advocates, though, the phrase “debtors’ prison” still has resonance. They argue that the government is still actively locking up people too poor to pay their debts. This time, it’s the failure to pay debt from criminal justice costs that land them behind bars. For many poor people, advocates say, overly burdensome criminal justice costs create an inescapable cycle of debt and jail.
In the 1970s, the US Supreme Court ruled it unconstitutional to put people in jail solely because they can’t afford to pay their criminal justice costs, but low-income people are still jailed because of unpaid criminal justice costs.
» What are criminal justice costs?
Criminal justice costs start piling up from the moment a person is arrested on suspicion of committing a crime, and can continue long after they’re found guilty. They come in the form of cash to bond out of jail before trial, as court fees and fines, as supervision fees for folks on probation or parole. There are also costs associated with being incarcerated.
Fines come as actual punishment levied for committing a crime. Fees, though, are applied broadly, and are used to help fund various operations of the government, often but not always connected to the criminal justice system.
Take court fees, for example: People convicted of misdemeanors are subject to a range of different fees, and will pay a minimum total of $178. There’s a mandatory clerk’s fee, a records management fee, a judicial support fee and an indigent defense fee. Everyone pays those. Then there are extra fees assessed depending on the crime and its circumstances: a drug court fee, a range of fees if the case goes to trial, a fee if there’s video evidence from a police body camera.
» What happens if you don’t, or can’t, pay?
The consequences for not paying those fines and fees are severe, and range from compounding costs – fines and fees for failing to pay fines and fees – to jail time. Failure to pay probation fees, for example, can mean an individual gets their probation revoked and they land behind bars.
“When you get trapped in the system, and you owe money, it could result in you being incarcerated,” Dallas County Chief Public Defender Lynn Richardson says. “Those fines build up over time, and then if you’re poor you may make a decision whether I pay my light bill to keep my lights on, or I buy diapers for the baby, or I pay my costs, fines and fees.”
Even for traffic tickets or other minor citations can have big consequences. You can’t be sent to jail in Texas for a broken tail light, but you can be sent to jail if you fail to pay the ticket for the broken light (state lawmakers have made moves to stop that from happening -- more on that later.) Even if they stay out of jail, people can end up saddled with costs that go well beyond the original fine if they don’t have the cash to pay it right away, in the form of additional court fees, payment plan fees, license renewal fees and other fees.
There are other collateral consequences: If a judge issues an arrest warrant for non-payment, finding employment or housing can be challenging. And unpaid fees and fines can make it impossible to renew expired licenses.
Richardson says judges are increasingly looking at the capacity of an individual to pay the fines and fees associated with their criminal convictions, and choosing to waive fees for folks who can’t afford them, or substitute fees and fines for alternative non-financial punishments like community service. Still, she says, not all judges take the initiative to understand an individual’s financial conditions, and leave people saddled with fees and fines they’re unable to pay.
“If you’re able to pay [criminal justice costs], it’s part of the penalty for being in the justice system,” Richardson adds. “But for those that don’t have the money – the homeless, those people who do have mental health issues, substance abuse issues – you’re getting blood from a turnip because they don’t have it.”
» How many people are locked up for failure to pay fines and fees?
It’s hard to say exactly how many people are incarcerated for failing to pay criminal justice costs. According to a 2017 report from Texas Appleseed, a non-profit advocacy group, one in eight misdemeanor cases in Texas are paid off in whole or in part with jail time. Other studies have found as many as one in five people in county jails are there because of unpaid fines or fees.
These don’t include people detained in county jails before trial who don’t have the cash to bond out or hire a bail bondsman. The Texas Judicial Council estimated local governments paid more than $905 million in 2016 to house people being held before their trial, though it’s not clear how many were eligible for release and simply could not afford to get out.
And none of these numbers include those who choose to go to jail because they cannot afford their criminal justice costs. On probation for methamphetamine possession, Chainnaron Soeurn was paying more than $2,000 per year in fees, and found that and other conditions of probation impossible to meet. So he walked himself into Hutchins State Jail, where he is finishing his probation period behind bars but free of the supervision fees he says were onerous.
“I was like, ‘You know what? Just lock me up, let me do my time, get back out to my family,'” Soeurn told KERA.
» What’s being done about so-called debtors’ prison policies in Texas?
Texas has moved in recent years to address debtors’ prison policies. In 2017, the Texas Legislature began requiring judges to ask about an individual’s ability to pay fines when imposing a sentence and to waive fees or offer alternatives like a payment plan or community service to those who can’t afford to pay. Lawmakers also put limits on the ability to issue arrest people for failing to pay costs from low-level, class C misdemeanors like traffic tickets or city ordinance violations.
Reformists have found some successful challenging burdensome criminal justice costs in court in recent years. Last year, the state Court of Criminal Appeals found some costs unconstitutional. Earlier this month, civil rights groups sued the state over the Driver Responsibility Program, a surcharge levied on top of punishment and fines for certain traffic violations. According to the lawsuit, 1.4 million Texans had their licenses suspended for failure to pay the surcharge.
Observers of the state legislature say the court cases may prompt more action from lawmakers on the collateral consequences of criminal justice costs on low-income Texans in the 2019 legislative session.
The legislature is also expected to take up the question of bail reform in 2019. A broad reform agenda passed the House last year but failed in the Senate. Since then, Harris, Galveston and Dallas Counties have faced lawsuits over bail practices that leave some poor, non-violent offenders stuck in jail because they lack the cash to go free. And in August, Gov. Greg Abbott laid out his own bail reform ideas after a highway patrol trooper was gunned down by a man who had the cash to bond out.