Strictly speaking, the Supreme Court outlawed debtor’s prisons with the 1983 Bearden v. Georgia decision, which held that a judge can only impose a jail sentence for failure to pay if he or she believes the defendant is able, but unwilling to pay.
“To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay,” the Court decided. “Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.”
According to the NPR investigation, judges are increasingly unable to determine whether defendants are unable or merely unwilling to pay their fees and fines. NPR reports that some judges demand defendants relinquish their cell phone service or quit smoking in order to pay their debt.
And the situation is not improving. NPR noted that “defendants are charged for many government services that were once free, including those that are constitutionally required.” The ACLU and Human Rights Watch have documented how the rise of the for-profit prison system in a time of economic downturn has put pressure on states to incarcerate more defendants for increasingly trivial offenses, including the inability to pay court fees and court-ordered fines.
One judge interviewed by NPR, Benton County, Washington’s Robert Swisher, told NPR that defendants “come in wearing expensive jackets,” referring to ones bearing the logos of NFL teams, “or maybe a thousand dollars’ worth of tattoos on their arms. And they say, ‘I’m just living on handouts.'”
He said that he tells such defendants that if these expensive items were a gift, they should ask the giver to provide them with cash to pay their court fees instead — a position that sidesteps the question of how much money a defendant has available to them at the current moment. A jacket or tattoo could have been purchased years earlier, when a defendant had a regular income or was in a stable relationship with a potential benefactor.
Miriam Aukerman, an attorney with the American Civil Liberties Union of Michigan, told NPR that “it’s not that it’s wrong to charge people money as a way to punish them. But there have to be alternatives for people who can’t pay. And that alternative cannot be: incarceration if you’re poor, payment if you’re rich.”
She believes judges may not use all of the available means at their disposal — including assigning community service or waiving the fines and fees entirely — to avoid sending defendants to prison.
Danny Bearden, whose case led to the Supreme Court decision, told NPR that “there are poor people, OK? They got families and everything like that. They work a job. And even when they get behind in trying to pay, they go to jail.”
That, he believes, violates the spirit of the Supreme Court decision that bears his name.
In February, the Ohio Supreme Court issued a “bench card” to every state and municipal court judge explaining how they could avoid sending impoverished defendants to jail.
“It marks an unprecedented move by the Ohio Supreme Court to educate and hold accountable judges who ignore the law,” the ACLU’s Mike Brickner wrote. “The card provides judges with the legal alternatives to collect payments, and the procedure they must follow to determine a person’s ability to pay their court fines.”
[“Man in jail” on Shutterstock]