Modern-Day Debtors' Prison
by Alec Karakatsanis
September 30, 2020
Alec | Thirty years ago in Bearden v. Georgia, the Supreme Court ruled that you can’t jail someone for the inability to pay a fine. Someone who has the ability can be held in contempt for willfully refusing to comply with a legal obligation. For example, if Bill Gates gets a speeding ticket and refuses to pay it, he can go to jail. But you can't just jail someone who doesn't have the ability to pay because they're poor.
However, in 2014, we found that cities were jailing people for not being able to pay.
It was the standard operating procedure virtually everywhere in the country. In Montgomery, Ferguson, New Orleans, and Jackson, we found that people were getting put into jail for not being able to pay their debt.
frank | A lot of your work centers around challenging the cash bail system. How do the two systems work in tandem?
Yes, people who have been convicted of something like a traffic offense or misdemeanor were being put in jail when they couldn’t pay the fines, the fees, or the court costs. In the bail system, you are in jail before you are even convicted of anything, and if you can’t pay your bail you are stuck there.
And in places like Ferguson, they sort of merge these two systems. When you couldn't pay your debts, they put a warrant out for your arrest, and they put a cash bail on the warrant. If you were arrested on the warrant, you can bail out by paying a cash bond, but that doesn't count towards your debt.
So how did you approach these cases?
The first thing I did was I flew down to Alabama where I used to be a public defender. I started going from court to court, jail to jail, watching the courts, taking notes, and interviewing people to get a sense of the scope of the problem.
In Alabama, the collection of the debt was also privatized. If you couldn't pay, they put you on “probation” with a private company. If you owed $100 in tickets, but you couldn’t afford it, they'd put you on probation. You would get charged an additional $40 a month just for being on probation, but you were only on probation in the first place, because you couldn't pay your ticket.
So let's say you could only afford $20 a month. If you are on probation for five months, you would have paid the $100 original charge, but now you owe an additional $200 on the $100 ticket because you were only paying half of the probation each month. And if you missed a payment, the company could have you arrested.
People would be trapped in this cycle for years, paying thousands of dollars on a ticket that was originally a few hundred dollar tickets, and then they were taken to jail when they couldn't pay. It is one of the most evil practices. It traps an entire class of people in constant government control and surveillance and debt. I mean, people were selling their blood plasma to be able to pay the company.
Was this found to be illegal?
It is definitely illegal. We sued them over this, and there were a number of ways in which these practices were illegal. It is illegal to bring these charges against people without lawyers, it is straight-up illegal to jail people just because they can't pay, and in Tennessee, we actually brought a RICO case against these private companies because essentially they were extorting people.
It's illegal to jail someone because they can't pay, but no one was informing these people of their constitutional rights.
In Oklahoma, we have a statewide case against most of the sheriffs in the state and the private debt collection enterprise. And our cases against the private probation companies have been really successful and most of the companies have been shut down. In Tennessee, we settled for $14.3 million for about 25,000 people, and the county agreed never to hire a private probation company again. In Alabama, the private probation company that was operating in over a hundred cities, folded.
What is the incentive for doing this to begin with? Do people or cities profit?
In our case in New Orleans, the judges funded their own court through the collection of fees and fines. So they needed to extort these people to continue to operate. In New Orleans, the judges, prosecutor, sheriff, and public defender all took a percentage cut of all the fees and fines. Everyone in the system profited from the fees you paid, down to your own lawyer.
The person jailing you, the person arguing your behalf, the person judging the case, were all taking a cut of your money. But, a lot of people think that these schemes are counterproductive for states and cities. They are spending a lot of money on jail costs and not getting much in return.
I don't actually think local governments are doing this to make money. I think they're doing it as an effort to control and punish a predominantly Black community.
Can you talk about some of the other ways people are punished for having outstanding debts?
There are many states where if you can’t pay your fines and fees, you can’t vote. That is either stated directly, like in Florida where the law says you have to pay off your fees in order to vote, or indirectly, where the law says that you have to be off probation or parole in order to vote, but paying off fees and fines is a condition of you getting off parole. There's an article by a UCLA Professor Beth Colgan that more clearly lays out the impact of fees and fines on voting.
The 11th Circuit Court of Appeals that controls Florida, Georgia, and Alabama, led by some of the new Trump appointees, just overturned itself to say that it's not unconstitutional to stop some voting because people can't pay. And the sixth circuit in Tennessee, also with a Republican panel, did the same thing. The federal courts are extremely hostile to poor people voting, and they have decided that it is not unconstitutional to stop somebody from voting.
Can that finding be challenged?
That is the law of the land in Florida, Georgia, Alabama, Tennessee, Ohio, and Michigan. The only way to reverse that is to get the Supreme Court to overturn those decisions, which is obviously something that is seeming increasingly unlikely right now.