Even the Right to an Attorney Comes With a Price Tag: 21st Century Debtors’ Prisons

The mass incarceration system in the United States is structured to make poverty itself a crime. Peter Edelman, early on in his book, offers some initial examples of how.

In New Orleans’s Municipal Court, Section A, even when the judge was presiding, not a word was audible to anyone in the audience, and, with multiple negotiations happening simultaneously around the room, no one in the gallery could understand anything that was going on. In the center of the grim circus were the shackled men wearing orange jumpsuits — almost all African American — being held for arraignment, awaiting trial because they could not make bail, or doing time for criminal contempt because they had not appeared in response to a ” judicial attachment” or bench warrant for nonpayment of debt owed to the court. Most of the shackled men, many quite young, were embarking on (or well along in) a long or even endless voyage of debt and incarceration. Unlike other jurisdictions, New Orleans does not jail people at the time they are sentenced and unable to pay a fine. But this is a distinction without a difference: many of the accused are held for days before being arraigned, and more are in for longer times while awaiting trial because they can’t afford to post bail. More yet will serve multiple stints in jail for nonpayment of debts to the court, ad infinitum.

In too many cities and small towns across the country, scenes like the one in New Orleans occur every day. The details differ, but high fines and fees are the order of the day in juvenile as well as adult courts. Even in jurisdictions and individual courtrooms where low-income arrestees are not jailed when initially sentenced, the dearth of public defenders, the almost ubiquitous use of money bail (in adult courts), and the ever-mounting payments owed mean repeated time in jail along with unmanageable debt. Ferguson is almost everywhere.

Constitutional violations on the part of the courts are rife, and they go uncorrected largely because of the shortage of public defenders. Police often violate the Fourth Amendment, making stops without reasonable suspicion, making arrests without probable cause, and using excessive force. First Amendment rights are violated when free expression is suppressed, including prohibition of the use of cellphone cameras to film police activity in a public setting. Fourteenth Amendment rights are curtailed when there is racial, economic, and other discrimination by police, judges, and other officials who disregard equal protection and due process.

The very act of jailing an indigent person for a fine-only, low-level offense is unconstitutional, and many of these jailings occur in states that actually have laws explicitly banning debtors’ prisons. In 1983 the Supreme Court heard the case of Danny Bearden, an illiterate ninth-grade dropout who was convicted of receiving stolen goods and placed on probation with a fine of $500 and a $250 order of restitution. His parents put up the first $200. Danny Bearden was going to pay the rest himself but was laid off from his factory job. He tried very hard to find work, but finally had to tell the probation people he had lost his job and could not make the payment then due. His probation was revoked and he was sent to jail. The Supreme Court decided in Bearden v. Georgia that “punishing a person for his poverty” violates the equal protection clause and that an indigent defendant cannot be jailed for inability to pay a fine unless he has “willfully refused to pay the fine or restitution when he has the means to pay.”

Yes, Bearden and state law are flouted every day. The people who hear the low-level cases are often municipal judges or justices of the peace who are not lawyers or are lawyers but serve part-time and practice in completely different areas of the law. Some judges do not know the law, but other judges know it well and apply it harshly nonetheless.

The Supreme Court has not given clear guidance for what “willfully refused” means, and the literature abounds with instances where the judge said the defendant had expensive-looking shoes or the like and therefore must be able to pay. A judge in Illinois asked all defendants if they smoked, and when any said yes, the judge said they have the means to pay. A judge in Michigan found that because the defendant had cable television he was capable of paying.

And the Bearden ruling that a defendant’s ability to pay must be taken into account does not apply when a person is arrested on a bench warrant for defaulting on a payment plan, because now the debtor has committed a crime that does carry a jail sentence. Failure to pay constitutes criminal contempt, which allows incarceration as well as further fines and fees. Because the contempt is a crime that allows jailing, there is no protection for indigence and Bearden becomes irrelevant. The right to an attorney that stemmed from Gideon v. Wainwright applies (which doesn’t mean one is available), but Bearden does not apply.

Even the right to an attorney comes with a price tag. The Supreme Court decided in Fuller v. Oregon that charging a fee for a public defender can be constitutional if people who would suffer a “manifest hardship” are relieved from paying it (a requirement ignored in some states). In fact, forty-three states charge for having a public defender. Florida does not waive its $50 public defender application fee for the indigent, instead instructing its courts to include it as part of sentencing or as a condition of probation.

In North Carolina, defendants have to pay not only the $50 fee but also the full value of the defense services provided, and in Virginia a defendant must pay up to $1,235 for a public defender on each count for certain felonies. South Dakota charges $92 an hour; even a defendant found innocent nonetheless owes $920 for ten hours of representation. If he cannot pay, it is a crime.

Coming into focus now is the highly questionable constitutionality of money bail — the practice of making a defendant put up a large sum of money to ensure that he will appear for trial, regardless of whether he poses a danger to the community or himself. Defendants who cannot come up with bail — in low-level matters as well as in more serious cases — are kept in jail pending trial. The unmistakably different impact of money bail on the rich and poor calls for litigation, which is now under way in a growing number of courts, both on equal protection and due process grounds and the Eighth Amendment’s explicit ban on “excessive bail.”

[The Cook County Court system reformed bail for the poor last July. It is currently in the process of implementation.]

Copyright of Peter Edelman (2017). Not to be reposted without permission of the publisher, The New Press.