‘People Are Punished Simply Because They Are Poor’.
In 1833, the United States outlawed the incarceration of people who failed to pay off their debts. A century and a half later, in 1983, the US Supreme Court affirmed that jailing indigent people simply because of their inability to pay fines and fees was unconstitutional, under the 14th Amendment’s Equal Protection clause. And most recently, in February 2019, the Court ruled that the 8th Amendment’s ban on excessive fines applies not only to the federal government, but to state and local governments as well.
Despite these legal rulings, there has been a rise in recent years of “modern-day debtors’ prisons”—the illegal practice of jailing of poor people for their failure to pay legal debt that they cannot afford.
“Across the country, state and local governments are increasingly relying on the collection of court fines and fees from people involved in the legal system as a way to generate revenue for governments and to pay for the legal system itself,” says Nusrat Choudhury, deputy director of the American Civil Liberty Union’s (ACLU) Racial Justice Program. “As a result, even something that appears to be minor—such as a traffic ticket or misdemeanor—can balloon into fines and fees totaling hundreds, and even thousands, of dollars that a person cannot pay.”
This is a significant problem in the US, where four out of ten people would face difficulty covering a $400 emergency expense, Choudhury says.
On Wednesday, September 18, Choudhury will visit the School of Public Health to speak at the Public Health Forum “Modern-Day Debtors’ Prisons: Race and Revenue Generation in Courts Across America.”
Ahead of the event, Choudhury spoke about the racial injustice of debtors’ prisons, and shared the stories of individuals she has represented in court to fight for their constitutional rights.
Can you describe the work that you do as deputy director of the ACLU Racial Justice Program?
I help lead a team of more than a dozen people who are committed to combatting racism, white supremacy, and the drivers of racial inequality in the United States. The ACLU Racial Justice Program attacks racial injustice in the economy, in education, and in the criminal legal system using litigation, advocacy, and public education.
My work focuses on dismantling racial injustice in the criminal legal system, which includes practices that criminalize poverty. Across the country, we see that people are punished simply because they are poor or low-income, and people of color are disproportionately impacted. This happens when people are sentenced to pay fines and fees and then punished with jail, suspension of their driver’s licenses, collection fees, and other draconian punishments when they cannot pay.
These punishments violate basic constitutional rights to fair treatment in the legal system, regardless of wealth. They also hurt people’s ability to keep their jobs, find work, and care for their children, driving people deeper into poverty, debt, and involvement with the criminal legal system, with devastating consequences on individuals, their families, and entire communities.
To what extent does the court’s withholding of information—such as a person’s right to legal representation—contribute to this problem?
Not only are people not informed of their rights, they’re also often misled about what those rights are, and this can happen in a variety of contexts.
The ACLU sued on behalf of Kevin Thompson, a teenager in DeKalb County, Ga., who was under the supervision of Judicial Correctional Services, Inc. (JCS), a private probation company whose sole role was to collect the money that he owed the court that he could not afford to pay.
Kevin was sentenced to pay more than $800 in fines and fees for a traffic ticket—an amount he could not afford as an unemployed teenager without a valid driver’s license. Still, Kevin did odd jobs and to earn whatever money he could, and he paid around $85.
A JCS probation officer charged Kevin with probation violation because he had not secured the entire amount due. She also told him that if he wanted a public defender, he had to pay $150. Not only did the JCS employee fail to inform Kevin of his right to court-appointed counsel to assist him at his probation revocation hearing, she also misinformed him that he would have to pay $150 for a public defender, even though the fee was $50 and could be waived on the basis of financial hardship.
As a result, Kevin went to court without the help of a lawyer to which he was entitled, as an indigent person facing potential jail time for failure to pay. In a proceeding that lasted minutes, the judge revoked Kevin’s probation and ordered him to serve to five days in jail. The failure to inform people of their rights, including their critical right to counsel, can directly lead to the deprivation of liberty and the imposition of other unlawful punishments simply because people are poor.
How do these unfair and illegal practices affect other parts of people’s lives?
When a person is incarcerated or loses their driver’s license because they cannot pay money to a court, there are terrible, cascading effects on the individual, their family, and their broader community.
Incarceration is often simply devastating. When people are jailed, they may lose their jobs and their housing, and may even fear losing their children to child welfare services because they are not home to care for them. Sometimes the children of people who are jailed for inability to pay do not even know where their parents are. Once arrested and taken to jail, the parents may not have the chance to call their families to inform them of what has happened.
In much of the United States, a driver’s license is essential to economic survival. When people are punished with the suspension of their driver’s licenses because they cannot pay money to a court, they lose a lifeline to look for a job or to keep the job they have. Without that income, people with suspended driver’s licenses cannot support themselves and their families. Entire families suffer because a parent with a suspended driver’s license cannot get to work or the grocery store, or take their children to school or the doctor.
The story of Twanda Marshinda Brown illustrates these problems. Ms. Brown is a mother who was jailed for 57 days because she could not pay fines and fees for traffic tickets to a court in Lexington County, South Carolina. During those 57 days, her biggest fear was that her 13-year-old son was going to be taken away from her by child welfare services.
The harm to Ms. Brown and her son was the result of an illegal jailing. Mr. Brown is a plaintiff in a federal lawsuit challenging the incarceration of people for up to two months—without ever being brought before a judge for a hearing on their ability to pay, informed of the right to counsel, or appointed an attorney—simply because they could not pay money to courts, The consequences of violating Ms. Brown’s constitutional rights were significant. While in jail, she lost her job, incurred additional debt that she could not pay, and was separated from her kids. So the ripple effects on families, on communities, and on entire economies is huge.