Poor communities of color are hit the hardest by rising court fees and fines, according to a report released by the U.S. Commission on Civil Rights on Thursday.
The commission recommends that the Trump administration continue to discourage bad practices, such as using fines and fees to raise revenue, rather than improve public safety, because of the negative impact of the fines on low-income people and people of color.
State and local legislative bodies are responsible for setting court fines and fees for people who commit low-level crimes, such as misdemeanors and ordinance violations. According to the report, 47 states have increased these civil and criminal fees since 2010. State and local court budget reductions may play a role in increasing fees and fines.
Often, the collections work is outsourced to companies that exacerbate the burden of heavy fines and fees on the poor and communities of color, according to the report. In many jurisdictions where the services are outsourced, the company’s income comes only from the fees it charges, which means the companies have financial incentives to keep people in debt. The business model is to “pad” on additional fees when people can’t pay up immediately, resulting in a fee on a fee, which doubles or triples the costs already imposed by the court. This system is ripe for corruption.
Neil Sobol, a Texas A&M University professor of law who focuses on abuses by debt collectors in the criminal justice system, said it’s appealing to cities to set up contracts with these companies because it doesn’t cost them anything. For this reason, Sobol said, contracts may be “one-sided” and don’t offer enough accountability and transparency.
“Private probation companies collect fines and fees for the municipality as well as their own fees, and when that money comes in they typically apply it first to their fees. So if there is a shortfall, the municipality is not fully paid,” Sobol said. “So the person remains on probation for a longer time period. More often than not, the fee for the private company is often larger than the original fine. They’re stuck in this never-ending cycle of debt.”
There are other serious repercussions as well, like the suspension of one’s driver’s license, damage to one’s credit score, and even incarceration.
A 2012 New York Times story of an Alabama woman, Gina Ray, fits this pattern. She was fined $179 for speeding, but when the ticket had the wrong date, she failed to appear, and her license was revoked. The next time she was pulled over, she didn’t have a license, and the sum of her fees came to more than $1,500. A probation company took over the process and determined that she would be jailed for failing to pay. Ray was charged for each day she was behind bars. By the time the story ran, she owed over $3,000.
This isn’t a new problem. Although fines and fees began to rise in the 1980s, the 2008 financial crisis increased pressure to generate revenue, according to the report. There has been a lot of previous reporting on the dangers of this so-called “policing for profit” model — and how it affects people of color in particular.
The report cites the work of reporter Dan Kopf, who looked at the U.S. Census Survey of Local and State Finances in 2012. Cities that imposed heavy fines had a larger population of black people in common. Even if municipalities were very poor, they did not receive heavy fining if they were overwhelmingly white and non-Hispanic. Black people were four percent of the population in the median municipality studies, but in the cities where most of the revenue came from fines, Black people made up 19 percent of the population.
A 2014 Human Rights Watch report conducted 75 interviews with people in Alabama, Mississippi, and Georgia — the offender-funded probation model is strongest in Southern states — and found patterns of abusive and financial hardship through companies that collect fees form probationers who committed misdemeanor crimes, such as shoplifting, or people who committed traffic violations. HRW said the blame ultimately lies with public officials who don’t exercise proper oversight of these companies. Most courts don’t track how much companies collect in fees, but HRW estimated that in Georgia alone, probation companies take in at least $40 million.
One of the companies mentioned in HRW’s report was Judicial Correction Services (JCS). JCS, which expanded aggressively in the Mississippi Delta region before pulling out of the state completely in 2013, also ceased operations in Alabama two years ago after getting hit with several lawsuits. Two city councils, Hartselle City Council and Decatur City Council, had recently canceled contracts with the company. There were several lawsuits against the company. Larry Madison, Hartselle’s city attorney, told Decatur Daily, “[T]he cost to defend a lawsuit would be tremendous to taxpayers.” The Southern Poverty Law Center also sent letters to 106 Alabama towns advising them to drop their contracts with the company and said JCS’ tactics could be considered extortion.
A lawsuit against a Tennessee municipality and a probation company filed in 2015 was settled on Thursday. Rutherford County and Providence Community Corrections and Pathways Community Corrections, a company that handles probation cases, agreed to pay $14.3 million to settle the class action. The lawsuit, filed by Equal Justice Under Law and the firm Baker Donelson, accused the parties of extortion and violating federal racketeering laws.
Sentinel Offender Services, which had one-third of its offices in Georgia, recently pulled out of its contracts in the state after a law passed that didn’t allow companies to charge more than three months of fees to people who were on probation due to inability to pay. Before they did, they tried to find other ways to make money. According to the Marshall Project, they asked courts to pay $25 for every person on probation and suggested the court increase fees to bring in more revenue.
“When the private company takes on the role of city or state, all of a sudden they start using the role the city or state has and [the company] uses fines or fees as a way of incarcerating someone,” Sobol said. “They threaten that ‘if you don’t pay this, we’re going to report it to the municipality and you face the possibility of being incarcerated if you don’t pay that fine.’”
“They are supposed to make determination of what someone can pay and ability to pay before incarcerating someone, but individuals aren’t told that nor are they actually given that determination,” Sobol added.
According to the Brennan Center for Justice, 10 million people involved in the criminal justice system are holding $50 billion in debt from fines and fees. These charges increase financial insecurity for low-income people, and perpetuate income inequality. The fees are also responsible for widening the racial wealth gap, since low-income people are the least likely to be able to pay and communities of color are often targeted by unfair policing practices, policy experts say.
In 2016, the Justice Department issued a “Dear Colleague” letter on the issue of enforcing court fines and fees. The letter said that in order for officials to follow basic constitutional principles, courts have to establish that failure to pay was willful, that there are alternatives to incarceration for failure to pay fines and fees, and that costs must safeguard against unconstitutional practices, among other requirements.
“[The U.S. Supreme Court said] inability to pay a fine or fee should not be grounds for incarceration … The fee should be adjusted on the person’s ability to pay. In Europe, they have different system and the fines are based on someone’s income. So they make determination at each level,” Sobol said.
Although he said there may be different considerations in the United States based on what information courts have available, courts can certainly look at poverty level and make determinations accordingly. Financial burdens also exist at every level of the criminal justice system, something advocates of criminal justice reform have called into question. Sobol pointed out that the bail system is harmful to the poor. Parents are also sometimes charged fees for their child’s public defender.
It’s unlikely that the Justice Department will carry on these types of efforts, however. The agency said it would pull back from investigations and lawsuits over abuses within police departments and sees police misconduct as an aberration rather than a systemic problem. Given the administration’s approach toward civil rights matters and oversight of predatory companies, such as for-profit colleges, it is likely that the department could also retreat from previous attempts to cut down on onerous fines.