Tackling Debtors’ Prisons: Reflecting on the Death of Eileen DiNino

On Saturday, June 7, Eileen DiNino died in a Berks County, Penn., jail.

An unemployed mother of seven, the 55-year-old DiNino was doing a 48-hour sentence for failing to pay truancy fines. According to an AP report, over the course of several years, her debt to local authorities amounted to about $2,000. While initial fines arose from truancy violations by her children, a subsequent spate of associated mandatory fees drove her deeper into debt. These charges included $8 for a “judicial computer project”; $60 for Berks constable; $40 for “summary costs” for several court offices; and $10 for postage. Local lawyer Richard Guida remarked: “In recent years, the government has found all sorts of interesting ways to extract money from people.”

The death of DiNino is another tragic episode compelling mainstream America to pull its head out of the sand and examine how the criminal justice debt cycle punishes the poor.

Perhaps the first glimmers of light appeared with the 2010 reports from the Brennan Center and the ACLU. Both documents chronicled a set of compelling stories, emphasizing the apparent irrationality of the now common practice of putting people behind bars for traffic fines, loitering violations, as well as failure to pay contrived court charges like those levied on DiNino. The ACLU labeled this the resurgence “debtors’ prisons,” an institution supposedly outlawed almost two centuries ago.

The present year has brought another flurry of reports and exposés. NPR did a broad brush set of stories entitled “Guilty and Charged” touching on a range of fines and fees. Human Rights Watch added a new dimension in February with an in-depth study of profiteering by privatized probation companies in the South. Finally, The New York Times joined the chorus in May with an op-ed asserting, “It is difficult to imagine a more unjust and counterproductive way of paying for such a system than to dump its costs on those least able to afford them.”

While research and media exposure are beginning to elaborate the complexities of a punitive regime that has been hammering poor people for more than two decades, analysis to date has overlooked some key issues. Typically, criminal justice debt reporting focuses on apparently irrational laws and rogue companies that profiteer at the expense of the poor. However, the criminal justice debt cycle is not an aberration.

Criminal Justice Debt and the Changing State

The rise of criminal justice debt is consistent with the overall restructuring of state functions since the early 1980s. This restructuring has featured reduced spending on welfare programs, the upgrading of the security functions of the state and retooling government departments and programs to emphasize private sector-style cost efficiencies. The expansion of this neoliberal approach has meant the shrinking and shuttering of state-funded facilities and programs that served the poor, leaving millions vulnerable to the criminal justice system.

For example, services like mental health treatment have been stripped from communities and essentially relocated inside carceral institutions. According to a report from the Treatment Advocacy Center, in 2012, more than 350,000 people with serious mental illnesses resided in the nation’s prisons and jails, about 10 times as many as those in state mental health facilities. Furthermore, the scaling back of public housing, tighter restrictions on TANF (Temporary Assistance for Need Families) and the defunding of childcare have combined with the application of punitive local laws to help book the poor a place behind bars. The Brennan Center report documented the most extreme examples of such local laws. They include ordinances against sleeping or lying down in public, bans on “aggressive” panhandling, even the outlawing of the sharing of food in public spaces to halt efforts by groups like Food Not Bombs to feed the hungry. Silicon Valley and several other California locales have recently made it unlawful for a person to live in their car.

Debt and Jail Construction

Largely missing from accounts of legislation has been the link to massive spending on jail construction, a major contributor to county and municipal financial woes. Local jail capacity expanded from 389,171 in 1990 to 891,271 by 2013, a period during which daily jail population counts doubled. However, because jail stays are typically short, static figures fail to capture the scope of the local dragnet. In 2013, 11.5 million people spent time in jail, about one in 20 adults. Meeting the rising demand for incarceration accounted for a big chunk of the increase in local criminal justice spending, which ballooned from $21 billion in 1982 to $109 billion in 2006. These growing expenditures forced local authorities to seek new funding sources to expand carceral capacity. Recovering costs from users, which avoided unpopular property tax hikes, became a favored solution.

The NPR study examined “user” fees for criminal justice in all 50 states plus the District of Columbia. Their survey revealed how a punitive financial system has emerged virtually everywhere. According to their findings:

• In at least 43 states and the District of Columbia, people can be billed for using a public defender.
• In at least 41 states, prisoners can be charged room and board for jail and prison stays.
• In at least 44 states, individuals who have been released can be billed for their own probation and parole supervision.
• And in all states except Hawaii and the District of Columbia, there’s a daily fee for the electronic monitoring devices imposed as a condition of sentence, bail, probation or parole.

While the majority of these measures are implemented at the county or municipal level, local actors often need enabling laws from state legislators to sanction actions like charging for public defenders or electronic monitoring. To add more revenue to the user fee stream, county jails themselves frequently add further charges on “clients,” such as exorbitant prices for phone calls to family, higher than market rates for commissary goods, co-pays for medical services and fees for video visitation.

Race and Gender in the Criminal Justice Debt Cycle

The race and gender aspect of criminal justice debt has also been largely missing in existing reports. As with prisons, the starting point for involvement in the criminal justice debt cycle is contact with law enforcement. Research in many states and cities has revealed racial disparity in police traffic stops and arrests. For example, a study in my hometown of Champaign, Ill., found that 88 percent of all jaywalking arrests 2007-11 and 75 percent of marijuana arrests targeted African Americans, who comprise only 16 percent of the city’s population. Not surprisingly, consistently more than half of the county jail population in recent years has also been African American. Bureau of Justice statistics reaffirm this profile, reporting that in 2013, 36 percent of the people in jails were African American, nearly triple their presence in the general population.

Sociologist Alexes Harris has uncovered another twist on racial disparity in criminal justice finance. According to her extensive survey in the state of Washington, Latinos received higher fines and fees when similarly situated than any other racial group.

The criminal justice debt cycle has a gender expression as well. Punishments for allegedly irresponsible parenting such as truancy or school tardiness are on the rise, with women of color the prime targets, but poor white mothers like Eileen DiNino also often caught in the trap.

DiNino was found dead in a jail cell that Saturday morning, hours after she surrendered to serve a 48-hour sentence for the $2,000 in fines, fees and court costs racked up since 1999 as the result of her children’s truancy. Her cause of death is unknown.

A Wisconsin county has put a fine of $114 on parents whose kids practice bullying. In cities like Dayton, Ohio and Baton Rouge La., police have done roundups and arrested parents whose children have been absent from school beyond the legal limit. In May, police in the heavily African American parish of East Baton Rouge arrested eight mothers on account of their children’s truancy. In one of the most extreme examples of parenting penalties, in 2011, Kelly Williams Bolar of Akron, Ohio, ended up with a felony conviction and a 10-day jail sentence for falsely reporting that her daughter lived with her father to get the girl into a better school.

Changing the System

So what can be done to stop the spread of this punitive criminal justice debt cycle? To date, the report recommendations have largely dwelled on removing certain ordinances or enacting some form of a sliding payment scale to enable the poor to avoid “poverty penalties.” While such measures would ameliorate the situation to some extent, the heart of addressing the criminal justice debt cycle lies in a philosophical change in how society treats the poor, especially poor people of color. Without an alteration of mindset, local political leaders and law enforcement will continue to pass legislation and regulations that create two sets of laws and two sets of urban spaces, one for the wealthy and one for the poor. The key intervention points in interrupting the criminal justice debt cycle are just as much about philosophical transformation as they are about policy or legislation.

For example, the starting point in undermining the criminal justice debt cycle is to attack racial profiling in police stops and the excessive use of tactics like stop-and-frisk. These are the contact points that provide recruits for local jails and get people caught up in the debt cycle, even when they have committed no crime other than being poor, vulnerable and presenting the wrong racial profile. However, eliminating these sorts of actions requires a massive re-conscience-ization of law enforcement personnel and debunking notions like hot-spot policing. Ultimately, this involves the un-making of years of equating young men of color and their associates with criminal activity.

Another obvious set of targets are the financial penalties which have become the legal vehicles for keeping people in jail. Alexes Harris has called for the elimination of “all non-restitution monetary sanctions for criminal offenses.” While this would go a long way, even many restitution claims are dubious, especially in the case of victimless crimes like drug possession. But fundamentally restructuring these financial penalties involves yet another pair of mindset shifts. First, striking the user fees acknowledges that criminal justice is a state responsibility, to be funded by tax dollars, not via payments extracted from the shallow pockets of the poor. Second, removing the use of fines and fees represents a rejection of putting a monetary value on punishment and equating punishment with justice. By implication, the need would be to move toward a more restorative justice approach, informed not only by the impact of the crime on the victim but on transforming the social circumstances of the person committing the crime.

In the short term, two very specific policy measures could go a long way toward halting the criminal justice debt cycle. The first, also recommended by the ACLU, would be to stop the widespread practice of suspending driver’s licenses as punishment for failure to pay fines in non-traffic cases. Suspending licenses is self-defeating. In many situations, people need a car to drive to work to earn the money to repay the fine or to carry out parenting responsibilities. Even with a suspended license, chances are they will drive anyway, eventually get pulled over by the police, and start a new cycle of incarceration and fines for driving without a license.

The second would involve the virtual elimination of cash bail except in the most serious of cases. Typically more than 60 percent of those in the nation’s jails have not been sentenced. Many are held in custody for weeks or months simply because they lack the cash to put up a small bond. A recent study in New York City found 11,000 people in one year who spent all their pre-trial time incarcerated because they couldn’t put up bail of $100 or less. Extended pre-trial stays in jail only add to debt and worsen a person’s financial position on the street. Washington DC has virtually eliminated the use of cash bail with essentially no negative impact in terms of people showing up for court appearances or committing new crimes while awaiting resolution of their case.

The final and perhaps most important step to halting the criminal debt cycle is to stop building more jail cells. In many local jurisdictions, jail construction is the largest capital expenditure in the budget. Pushing local authorities to re-direct tax dollars to mental health facilities, substance abuse treatment, youth job creation and public housing initiatives will help carry many people away from the criminal justice system into the non-carceral life.

No quick policy fix will stop the criminal justice debt cycle or debtors’ prisons. Michelle Alexander and others have argued that a broad-based social movement will be required to reverse mass incarceration. Similar initiatives at a local level, driven by organizations led by the urban poor, will likely be necessary to precipitate the kinds of changes that will fully eliminate a practice that was supposed to have been outlawed in the 1830s – locking people up because they are too poor to pay their debts.