New Article: Torie Atkinson, A Fine Scheme: How Municipal Fines Become Crushing Debt in the Shadow of the New Debtors’ Prison, 51 Harv. CR-CL __ (forthcoming 2016). Abstract below:
As state and local budgets tighten, municipalities have turned to civil fines and penalties to fill empty coffers. Beginning in the 1960s, these fines and fees, often termed legal financial obligations (“LFOs”) or economic sanctions, arose as a way to shift the costs of criminal adjudication to those “using” the system: those charged with criminal activity. Defendants in criminal cases began having to pay restitution, court costs, room and board, and even public defender fees. As time went on, fees spiraled into new areas, such as DNA testing fees, medical examination fees, even jury fees. Today, a weak economy, misplaced faith in the “broken windows” theory of criminology, and lack of regulatory oversight have allowed municipalities to extend this practice into petty criminal violations.
Many areas are now using jail time to coerce poor, mostly minority violators of small infractions into paying up or getting put away. These fines are often for petty misdemeanors or violations, such as truancy fees, driving infractions, public drunkenness or urination, jaywalking, or even bounced checks for government services such as school lunches. Yet these fees are only the beginning, as municipalities tack on additional court fees, payment plan fees, costs, and interest at rates of up to 12%. Small debts spiral into enormous ones, and nonpayment can result in civil contempt: incarceration. To make matters worse, collection of these debts is often outsourced to private debt collectors, who not only use aggressive tactics but can tack on additional collection fees, creating a never-ending cycle of debt and incarceration. This cycle is not only devastating to the poor and poor communities, but it makes no sense, as people wind up jailed at costs far exceeding their original fines. The result is that the rich may walk away, while the poor must pay or stay.
Existing literature has focused on those incarcerated for serious crimes who emerge from prison with enormous debts. However, most poor people face legal debt without having faced prison or parole, but as a routine municipal fine or fee for local ordinance violations. Part I of this Note explores the origins of legal financial obligations, while Part II explains the shift to this system both as a revenue stream and as a “broken windows” tool for social reform. Part III examines the equal protection and due process limitations on economic sanctions — protections being ignored by municipalities all across the country. Part IV illustrates how the current scheme operates outside the bounds of the Constitution, as a shadow system where violators have no right to counsel, are not asked about their financial ability to pay, and are turned over to private collection companies who concern themselves only with the bottom line. These practices have disastrous effects on poor communities, particularly communities of color, and the collateral consequences are discussed in Part V. I address several alternatives to this system and avenues for legal reform, as well as obstacles to such reform, in Part VI.