How our underfunded courts are bringing back debtor’s prison (and what to do about it)

How our underfunded courts are bringing back debtor’s prison (and what to do about it)

- in Progressive Voices


The United States of America is home to 4% of the world’s population. It meanwhile is home to 25% of world’s jailed population.

The Washington Post recently reported on the dire consequences for a man caught red-handed after his hunger led him to steal $5 worth of snacks in April. Law enforcement subsequently arrested this suspected thief who obviously understood moderation in a way I wish I had in college. The government held him locked him in a cell where he waited for a spot in the mental health facility to open prior to release. While in jail, inmates reported that he often paced his cell covered in his own filth. He died while waiting on August 19, 2015.

In a recent episode from one of HBO’s 9,000 Emmy award winning shows, Last Week Tonight with John Oliver, the show reported on a grandma who the state of Alabama jailed for her failure to pay a traffic ticket she simply did not have the means to pay. Police executed the warrant for her arrest while she posed to society the immense threat from the confines of her home. She was in jail for 10 days following the arrest until the Southern Poverty Law Center came to her rescue. Her name is Harriet Cleveland and she helped end what the SPLC called a modern-day debtor’s prison.

Despite the unconstitutional nature of a debtor’s prison, the message our justice system routinely sends the nation’s poor is this: “As long as you can pay for it, America is the land of the free.”

Lawyers and poor people know all too well the acronyms FTA, FTC, and FTP. For the majority of the population, and especially the electorate in the majority of the districts in North Carolina, these acronyms mean nothing. Is there a Federal Transit Administration? Why is he talking about the Federal Trade Commission?

He’s not.

He’s talking about the offenses of “Failure to Appear,” “Failure to Comply,” and “Failure to Pay.” These are crimes in North Carolina for which law enforcement may issue an arrest warrant, revoke a person’s license, and compound fines already administered, but that could not be paid – not for some wanton disrespect for the law, but because the person simply did not have the means to defray the cost.

Speaking of cost, the state spends a lot of money per person per year to incarcerate an individual. The NC Department of Public Safety calculated that the minimum cost to incarcerate someone is $25,616 per year, or $70.18 per day. In Harriet Cleveland’s case, that would mean her incarceration would have cost the state $701.80.

Meanwhile, the American Bar Association identified the existence of no less than 46,992 collateral consequences associated with a criminal conviction. One thousand and eleven of those are specifically unique to North Carolina. The consequences an individual can expect after the conviction of an offense like Failure to Pay can be overwhelming. One common example is that the individual will lose his license. Without his license, he cannot continue to perform his job. Without his job, he cannot pay the fine that precipitated the initial arrest for his Failure to Pay.

There is, of course, a purpose to court costs and fines. Simply put, they aim to fund the courts without the higher taxes on the general public. Unfortunately, like many of the subjects upon whom the state charges these fines, North Carolina courts are, on the whole, poor. What’s more, for a state that proudly stands at the frontier for research and development, our courts are woefully behind in technological sophistication.

So why isn’t this alternative revenue collection method working better? Simply put, poor people are poor.

So here is my proposal: Let’s make court costs and fines proportional to the individual’s income. The state already has this information (tax returns) and it makes perfect sense for the individual and the state. If the person’s income does not justify any fine, then other alternatives exist like community service that can allow the individual to comply with the court’s requirements without tacking on additional convictions.

One aspect of punishment is the responsibility it entrenches in the wrongdoer. It’s pretty fair to say that a $263 fine for someone who makes $8 an hour (currently above minimum wage) will instill in that person a much greater sense of responsibility and atonement than the same fine administered to someone who bills $1,000 hourly. Instead of making the amount the same, a substantially greater benefit to society and the individual could occur should the state elect to enact legislation to make the court costs and fines proportional to income. Here are some of the potential benefits:

First, it will make it much less likely that a grandma will be hauled off to jail for her failure to pay. That will help the state, too, because it will then not spend money jailing her for 10 days, or around $700.

Second, it will also avoid the collateral consequences associated with the conviction. The person will maintain her ability to drive; and, in turn, that person will keep her job and continue to be a productive member of society. So that also helps society.

Third, not only will the state save money, but it will also make money. A proportional fine on some of the wealthiest in the state could reap substantial benefits for our struggling courts (resources they can’t obtain now because of repeated tax cuts benefiting those same wealthy individuals).

Equality under the law requires proportionality. And clearly, a $263 fine for someone who does not have money to spend on groceries is hardly the same punishment as it is for someone who casually spends $263 for their Louis Vuitton undershirt. The law is the same: drive safely. The message is much clearer for one group than the others.

Fourth and finally, many of those in society who have felt alienated from the law might now feel less alienated under such a system. That would breed a new measure of respect for the law – and in turn, significantly increase the likelihood that they follow the law; and, when they don’t, it substantially increases the likelihood that they will appear for their hearing.

Now I know what you’re thinking. What if cops specifically target the wealthier looking drivers because they know it will mean a greater payout for the state and therefore increase their job security?

That’s a great question, but as the state has so wonderfully proven over the years, the subjective motives of the police are unimpeachable. The only standard that matters is the one of the objective, reasonable officer. If you were able to argue a strong case of Affluenza as a defense (it’s happened), who’s to say that a poor person would not then turn around and argue poverty?

The audacity.

But then what if this makes wealthy people alienated from the law like it did poor people? Wouldn’t that just breed their disrespect for the law? Wouldn’t it increase the likelihood that the extraordinarily wealthy would not follow the law?

As the endless list of U.S. financial system bailouts remind us, if such a scenario does materialize, North Carolinians can rest assured that the government will step up to the plate to protect them as well.

Taylor Hastings practices law at the firm Hastings Law & Counsel, PLLC in Chapel Hill. This essay was adapted from a version that appeared originally on the website of North Carolina Advocates for Justice.