EDITOR’S NOTE: This article was produced as part of The Puffin Nation Fund Fall Fellows Program.
On a recent trip to Albany, New York City Mayor Eric Adams pushed for revision of the state’s bail reform law, in light of the murders of Michelle Go and Christina Yuna Lee, pressing lawmakers to give judges more discretionary power concerning pretrial detention. Mayor Adams’s political tussling over bail reform last month was not new. Since it was introduced in April 2019 by the state legislature, the reform has been fiercely debated in the context of “public safety,” but the relationship between cash bail and criminal justice debt has not been adequately included in these conversations: How does the accrual of criminal justice debt affect public safety in the long run?
Zachary Gillespie, an alumnus of NYU’s Prison Education Program who joined the program’s Debt & Incarceration Project as a student researcher in the spring of 2020, says debt and incarceration are “parallel” to each other. The criminal justice system as we know it saddles incarcerated individuals and those accused of crimes with financial obligations leading to the accrual of debt at nearly every juncture of the legal process, as a form of punishment as well as revenue. “A lot of people in prison are affected by debt in different ways,” said Gillespie. In particular, he emphasizes the fraught and stressful consequences criminal justice debt levies on individuals. “Their commissaries are docked, and what little money they can have sent in are garnished by the state, putting them at risk for food insecurity and other issues.”
For decades, the onus of generating revenue for states and municipalities with strained budgets—most famously Ferguson, Mo.—has been shifted by several states onto those accused and convicted of crimes. This is done through criminal justice fines, fees, and debt, sometimes called “legal financial obligations” or “monetary sanctions”: all the court costs, restitution debts, and bail forfeitures levied on individuals who have been accused or convicted of crimes.
Neil L. Sobol, a Texas A&M University law professor whose research involves debt collection in civil and criminal justice matters, has written that the current criminal justice system produces modern-day debtors’ prisons. “The traditional debtors’ prisons of the 18th and 19th century incarcerated individuals unable to pay civil obligations to creditors,” says Sobol. Fees were unregulated and were assessed for a range of charges to be imposed on the incarcerated to cover the cost of admission, room, board, food, medical care, and release—a practice still common across the United States.
Today, exorbitant fees are often imposed because private entities’ charges are insufficiently or not at all regulated. This compounds social and racial inequalities by creating a two-tiered system of justice, says Sobol, that imposes fines on a population unable to pay them without significant financial strain, as well as the threat of incarceration for nonpayment. This set-up is sometimes called the “debt-to-prison pipeline.”
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A significant component of criminal justice debt comes from the cash bail system, often described by prisoners’ rights advocates as a tool that both criminalizes poverty and fuels mass incarceration. Approximately 500,000 people are held in jail awaiting court on any given day in the United States because of their inability to pay their way out. Although cash bail is sometimes used in other countries, the distinct practice dominated by commercial bail bondsmen can be found only in the US and the Philippines.
For the typical defendant, the median bail bond represents approximately eight months of pay. Incarcerated individuals had an average annual income of $19,185 prior to imprisonment, around 41 percent less than people of similar ages who were not incarcerated. About 80 percent of individuals—both youth and adults—enter the criminal justice system without enough money to hire an attorney. Conceivably, they also would not have the funds to pay back debts accrued while making their way through the system, with ex-inmates owing $13,607 on average in fines and fees, not including bail debt. These fees have been labeled by critics as “poverty penalties,” as they exist only because the defendant couldn’t afford to pay the original debt.
Manuel Galindo, a carceral debt organizer for the Debt Collective whose work focuses on identifying and tackling how the criminal legal system extracts wealth from communities of color, says the entire history of the criminal legal system must be examined to understand how it has reached a point where it is essentially peddling inequality. “This system has deeply affected the financial ability of individuals, keeping people of color incarcerated because of their finances,” said Galindo. “Combined with a historical lack of income and an increasingly financialized criminal legal system, families who have had multiple generations of incarcerated loved ones are stuck in a cycle of incarceration.”
One of the reasons for our current criminal justice system, according to Galindo, is that insurance companies make up to $2.4 billion by backing bail bond companies to make sure their “interests are represented.” Individuals have to deal with hard-hitting collection practices by debt collectors without the usual legal and consumer protections that shield people from usury and harassment. These debts also stand in the way of the expungement of criminal records, leading to difficulty for formerly incarcerated individuals to reenter society because they do not receive public benefits or have access to credit or housing.
In her book Pound of Flesh: Monetary Sanctions as Punishment for the Poor, Alexes Harris sifts through thousands of court cases to understand how debtors are scrutinized and penalized by the criminal justice system. Harris, a professor of sociology at the University of Washington, writes that in her state the average legal debt those interviewed incurred from exposure to the criminal justice system was $9,000. Even if one is deemed unable to pay, individuals can be thrown in jail multiple times for nonpayment, especially those with criminal records, echoing Sobol’s argument on modern-day debtors’ prisons. However, Harris told the Fair Punishment Project that the current system doesn’t have to work like this, because prosecutors “have a great deal of discretion” in how much individuals are ordered to pay in court.
Many, including Galindo, disagree with this arbitrary method of imposing court fees and fines, including bail. “Punishing people financially is not a form of accountability,” said Galindo. “You can’t charge people for their freedom and expect it to be a fair and equitable system. For an affluent individual, there is no barrier to a free criminal justice system, but for a poor individual, multiple obstacles are stopping them from taking advantage of a just criminal legal system that cannot afford to pay for good attorneys and various fines and fees and are subjected to extended forms of incarceration.”
Take Jeremy Barrett, 36, who sued the Florida Department of Corrections at the end of a three-year sentence for negligence after he suffered a grievous bodily injury after being confined with a cellmate deemed “severely mentally ill.” When he did sue, the department filed a countersuit with a “cost of incarceration lien” that totaled a whopping $54,750—the price of Barrett’s stay in prison for 1,095 days. In his book Profit and Punishment: How America Criminalizes the Poor in the Name of Justice, Tony Messenger writes about Brooke Bergen, who pleaded guilty to a shoplifting charge in 2016 for the theft of an $8 mascara tube and was given a one-year suspended sentence. After violating the terms of her parole by not showing up to a phone check-in, she was reincarcerated and released, but with a caveat: She now owed $15,000 in fines and fees. Messenger argues that this violates the Constitution’s due process guarantee.
Dr. Andrew Ross, a professor of social and cultural analysis at New York University and cofounder of the Debt Collective, says there are many private-sector firms “looking to extract lucre” from an economically helpless population. “They do so at every possible stage of the carceral process: not just bail, but also commissary and phone markups, pay-to-stay [fees], health care premiums, and private probation supervision fees,” said Ross. “Courts, which increasingly function as debt collection agencies in their own right, further guarantee the vulnerability through the judge’s discretionary authority. The carceral system is a shakedown operation, from first to last.”
This carceral shakedown has also extended to juvenile courts, whose informal nature and reduced public visibility present a unique set of problems. Until the end of the 19th century, both youth and adults in America were tried in criminal courts. Then, a movement for juvenile justice took root, inspired by 16th-century education reform in England that differentiated between the cognitive capabilities of youth and adults. In 1899, the Illinois legislature established the first juvenile court in the nation through the Juvenile Court Act in Cook County. The system was “designed to [appreciate] that youth are different from adults,” and to address these differences with a “focus on rehabilitation and child development.”
But these values have been undermined by court fees for witnesses, transportation, court operations, public defenders—sometimes even after the inability to pay is determined—evaluations and testing, probation supervision, mental health, rehabilitative and health care treatment, and more. In many cases, some of these costs can be levied before the court has even judged delinquency—and the money would not be recovered after being paid.
Youth in poverty and youth of color are also likely to face harsher consequences and receive less rehabilitative support than more affluent peers, and those who are incarcerated at a young age are more likely to experience higher rates of recidivism. The long-term consequences of working too much at a young age to pay off debts—receiving low grades and dropping out of school—all undercut the goal of rehabilitation and lead to a brutal cycle of debt. Most people who cannot pay right away never do so, and these monetary sanctions imposed by courts remain for years a burden around the necks of youths involved in the criminal justice system.
“We know that revenues from such schemes are not collected uniformly across the country. Instead, regions with higher shares of Black residents tend to collect higher revenues,” says Dr. Brittany Friedman, assistant professor of sociology at the University of Southern California. These fee structures help to entangle youth more deeply, and unequally, in an unforgiving criminal justice system, contributing to racial disparities in the juvenile justice system.
Friedman cites a 2017 study on criminal justice debt collection demonstrating how cities with a large share of Black residents collect between $12 and $19 more per resident than cities with a smaller share of Black residents. “This creates a cycle of financial indebtedness for the communities hit hardest by our racist criminal legal system, leading to the financial and physical capture of whole generations,” said Friedman. Additionally, the financial burdens imposed on youth undermined familial relationships: One survey gave the example of a grandmother who, in the face of insuperable fees, was told by a county employee that she could avoid paying if she gave up custody of her grandson.
In cases like past-due credit card bills or student loan debt, nonpayment will likely not mean jail time. But when it comes to paying criminal justice debt, life can be more complicated. The financial precariousness of poor parents undermines their ability to comply with court orders. In some states, this inability to follow an order in a delinquency case could be grounds for civil contempt, which could involve a period of imprisonment for up to 90 days, with the possibility of renewal for up to 12 months. Not following a court order could be as simple as not paying for a court-appointed attorney. As a state representative, Leslie Herod sponsored Colorado’s 2021 bill abolishing juvenile justice system fees and erasing all outstanding debt. “Eliminating these fees would allow judges to stop acting as cashiers,” said Herod.
In places like North Carolina, these court fees are not waivable by the court and are automatically imposed with no consideration of an individual’s ability to pay. A range of factors influences these inequalities, including lack of access to good counsel; a system that allows youth with access to exclusive, private services to avoid the juvenile justice system entirely; high rates of children entering the system from the child welfare system; and entry into the system from disproportionately policed schools and neighborhoods.
The death of Kalief Browder, a Bronx teenager who at 16 was wrongly accused of stealing a backpack and spent three years at Riker’s Island in solitary confinement after failing to immediately put up $3,000 in bail, is one of the most well-known failures of the cash bail system and pretrial detention. His tragic passing was regarded by many as precipitating the push for bail reform and the ending of cash bail. Zachary Gillespie says Browder’s story “made a tremendous impact on bail reform in New York” by humanizing people in pretrial detention, and that it brought the issue to the forefront of criminal justice discourse. “I don’t know what the criminal justice system has learned from that, but there has been some change. I feel like his story educated people.” Gillespie believes “that was sort of the reason why Albany approved bail reform.”
For many, like Dr. Sobol and Dr. Friedman, cash bail is a discriminatory practice that disproportionately harms the socioeconomic status of Black and brown people by subjecting them to exorbitant, debt-incurring fines and fees. Besides often leading to further incarceration, it drains public resources and criminalizes poverty. Severing the link between criminal justice revenue and the process of incurring debt through fines and fees is essential to discouraging harmful profit incentives.
Two solutions might be to impose caps in jurisdictions’ budgets on revenue from criminal justice debt and to eliminate cash bail. In the United States, it is frequently wealth that shapes the outcomes of those held in jail before trial. The criminal justice system’s claim of “legitimacy” is undermined when states create monetary incentives to profit from fines, fees, and forfeitures. Instead of penalizing behavior that threatens public safety, the system punishes poor people simply for being poor.
