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Debtors’ prisons were outlawed in the U.S. nearly 200 years ago, but across the country, people are going to jail because they can’t afford court fines and fees. And despite a 1983 Supreme Court ruling, strapped counties and cities are increasingly passing costs along to offenders, including fees for public defenders. It’s been described the “criminalization of poverty;” we explore the issues.
- Jonathan Rapping President and Founder, Gideon's Promise; Professor, Atlanta's John Marshall Law School; Former Staff Attorney and Training Director, D.C. Public Defender Service
- Joseph Shapiro NPR News Investigations correspondent.
MR. KOJO NNAMDIDebtors prisons were outlawed in this country almost 200 years ago but across the country poor people are going to jail because they can't pay court fees. Financially-strapped counties and cities are increasingly relying on money collected from offenders to pay for the criminal justice system. And districts are contracting with private companies for everything from electronic bracelet monitoring to ticket collection. Some places even charge a fee for a public defender.
MR. KOJO NNAMDIAs courts around the country struggle to interpret a 30-year-old Supreme Court decision on the issue, the fines and fees are hitting the poor hardest. Joining us to discuss this is Joseph Shapiro. He's a correspondent for NPR's investigation's unit. He joins us in studio. Joseph Shapiro, thank you so much for joining us.
MR. JOSEPH SHAPIROThank you, Kojo.
NNAMDIAnd joining us from studios at Georgia Public Radio in Atlanta is Jonathan Rapping. He's the president and founder of Gideon's Promise, an organization which trains and supports the work of public defenders. He's also a professor at the John Marshall Law School in Atlanta. Jonathan Rapping, thank you for joining us.
MR. JONATHAN RAPPINGIt's great to be with you, Kojo.
NNAMDIIf you have questions or comments for us, give us a call at 800-433-8850. Do you think charging a fee for a public defender is fair? Do you think offenders should shoulder some of the costs of the criminal justice system, 800-433-8850. Joseph, you've been working on this for NPR as part of an investigation of these issues. What have you been looking at?
SHAPIROWe did an investigation that we ran in May and we continue to write about it. We looked at how every state now charges user fees to people who go through the court system. So we found that people get charged, as you mentioned, for those ankle bracelets that they get ordered to wear. They get charged for room and board in prison. They get charged for their probation and parole supervision. And then they get charged for things that are even constitutionally required like having a public defender.
SHAPIROAnd we found that in 43 states, plus the District of Columbia, courts are allowed to charge for a public defender. Often it's just the -- it's a -- it ranges -- often it's an administrative fee that you pay upfront and it can range from we found $10 in New Mexico. But in Arkansas they can charge up to $400.
NNAMDIAnd what are the possible scenarios if these people who are charged cannot pay?
SHAPIROWell, we found -- I found cases of people who said, well, I couldn't pay so I thought I didn't need a public defender or this was a low-level nonviolent crime. I didn't think I'd have a problem. I met a man named Tom Barrett in Georgia who passed up the -- he couldn't afford a public defender. He was homeless. And it cost 50 bucks for him. So he said no. He stole a can of beer that's worse less than $2. He ended up in jail for -- sentenced for 12 months. Now he was -- originally he was ordered to -- he was released. He was ordered to wear an electronic monitoring bracelet.
NNAMDIHow much did that cost?
SHAPIRO$12 a day plus there was a $39 a month supervision fee that went to his -- the private probation company that managed his probation. It was over $400 a month. This man had been homeless. The only -- his only income was he got food stamps and he sold his plasma for 35 bucks a pop. And suddenly he has to pay $400 a month and he couldn't do it. He fell behind and they said, all right, you violated your probation. Off to jail.
NNAMDIWell, two kinds of questions come to mind. For all of those people who are saying, Joseph keeps saying paying for a public defender. We thought the whole point of having a public defender service were for people who could not afford to pay for a lawyer. Since when do people -- are people asked to pay for a public defender? You mentioned that there are laws in all -- in 49 states and the District of Columbia that permit this?
SHAPIRORight. So -- and Gideon versus Wainwright the -- and I know Jonathan can talk about this too -- but Gideon versus Wainwright 51 years ago established that people have this right. But it didn't say how it was to be paid for. And public defender services are underpaid. They need funding. Also there's the assumption, by the way, that you can charge somebody maybe a small fee and they can afford it. Now we found out in Tom Barrett's case and a lot of other cases I looked at that people just say, all right, I can't afford it. So they go without a lawyer when they should (sic) .
SHAPIROBut the assumption was, oh, maybe they'll hit the lottery next week and they'll have money to pay so we'll put this fee on them. And when they get the money, they can pay. But what happens is that it means that they have this debt that follows them for a long time.
NNAMDIJonathan Rapping, this obviously touches on the work of your organization Gideon's Promise for which you were just awarded a MacArthur Genius Grant. Congratulations, by the way. But what about the idea of a nominal fee for a public defender?
RAPPINGWell, I think the problem, Kojo, is that there are lots of people who can't afford even a nominal fee without it being an incredible hardship to them. If you or I were in trouble, we would find resources to hire a lawyer and it wouldn't affect other aspects of our life. But what we see in criminal justice systems in some of the most cash-strapped places is that people show up and judges try to determine whether they can afford a lawyer by asking if they drive a car, if they have a house. They'll say, boy, you're wearing a wristwatch. You can certainly afford a lawyer.
RAPPINGAnd so I think what this really touches on is what we're talking about is a symptom of a much larger problem. We have a system of justice that has other-ized and dehumanized populations of people based on race and based on income. And when you see people as less than human, you can accept really low standards of justice for those people. And the idea that they should have to mortgage their home or sell their car or get rid of their wristwatch just to have a day in court is something we would never accept for our own family members. It really is a symptom of a larger problem of two different systems of justice.
NNAMDIWhy don't you explain a little more about that, Jonathan, because it's my understanding that fees can be waived for the poorest defendant. But does that address the issue for those who truly cannot afford it?
RAPPINGWell, fees can be waived but again, you -- judges have to make the determination that someone truly can't afford a lawyer. And while some judges will waive fees, other judges might be incredibly strict in how they scrutinize whether someone can afford $50. As Joe pointed out, in many parts of Georgia people accused of crimes have to pay $50 to have a lawyer.
RAPPINGThere are places where people are brought into court for first appearance in mass. And the judges will say to them, listen, you've got two choices. You can pay $50 and get a public defender or you can just talk to the prosecutor over there who's going to offer you a plea today. And for a person for whom $50 is what they used to feed their family that week they say, I'll just go talk to the prosecutor myself.
RAPPINGThey end up without having the advice of counsel, taking a plea, not even aware of all of the collateral consequences that might go along with that. They might lose their ability to live in public housing. They might lose their job. They might lose licenses that they need to work and to be employed. And so it really is a problem that is much larger than just $50 or a nominal fee.
NNAMDI800-433-8850. Do you think someone should go to jail for failing to pay court fees, 800-433-8850? Joseph Shapiro, what about the legal side to this? Debtors prisons, as we said, were outlawed nearly 200 years ago. And the Supreme Court weighed in on this more than 30 years ago. So why are people going to jail across the country because they cannot pay court fees?
SHAPIROBecause when the Supreme Court said that you can't send someone to jail for not -- for being too poor to pay their fines and fees, the court did not say how to determine whether someone was too poor to pay those fines and fees. The court said you could jail someone if they willfully refuse to pay. So it's left up to judges to determine it.
SHAPIROAnd so there's not a standard way of doing it. It's like Jonathan said, sometimes they'll -- they'll say, oh, you got a nice watch. Apparently you have the money. They'll tell people can you use your welfare check? Can you use your veterans benefits? Can you get money from your parents? So there's no set way of determining whether someone is too poor to pay. And courts use their own practices.
SHAPIROBut again, it's up to judges. They have a lot of discretion. And they may say we -- I had a judge that told me that he looks at somebody who walks into his courtroom. And if they're wearing a nice jacket he says, well, where'd you get the money for that jacket? If they have a lot of tattoos on he says, boy, you paid a thousand bucks for tattoos, you must have that money.
NNAMDIWhat about the role of private companies playing in the criminal justice system now? What are some of the issues raised there?
SHAPIROWell, the issue of private probation has actually come up today before the Georgia State Supreme Court. They're looking at this issue. Tom Barrett, the man who went to jail after he sold a can of beer worth less than $2, his case has come up before that court today. And the issue there is that around the country, small courts will sometimes turn their probation system over to private companies. The small courts, they don't have a lot of money, it's hard to manage the probation system. So a private company will come in and they say, look, we won't charge you for this. We'll make the money off of fees that we charge somebody. But what happens is that a private company then has a lot of power.
SHAPIROThey work with the judge. They recommend when it's time -- if somebody hasn't paid, they recommend when it's time to issue an arrest warrant. The judge has to finally make that decision, but you end up giving a private company a lot of power. And it's a private company that makes its money off of the fees when people are charged these fees and forced to pay.
NNAMDIHere's Dominic in Springfield, Va. Dominic, you're on the air. Go ahead please.
DOMINICYes, sir. It's very -- as a ex-offender, we have another take on it. A lot of us believe that the system is geared to keep you in the system. But you mention -- it's a good thing that your panelist mentioned something about private industry breaking in. And it's going on all around the country. But the common sense thing to look at this, when private industry breaks into this area is, when the public -- when it's a public enterprise, you know, getting run by, you know, taxpayers, public and that, there's no incentive for more bucks. And then when you privatize it, just like the guy who just -- who's on your panel was trying to say...
DOMINIC...the incentive is to make more money. And if you have people getting out of the system and going legitimate, how are they going to make money?
NNAMDIJonathan Rapping, care to comment on our caller Dominic's assertion that from the standpoint of an ex-offender, this is how people are just kept in the system.
RAPPINGWell, I appreciate that. I think that's a thoughtful comment. I think there are these pressures. We now live in a society, and over the last 40 years we've become more and more of a society that pressures every professional in the criminal justice system to be tough on crime. And the response has been that politicians and legislators have criminalized more behavior. There's more pressure on police to police poor communities and communities of color, more pressure on prosecutors to charge more people. But yet there aren't the resources put into the system needed to make sure that all of these cases are handled consistent with justice.
RAPPINGAnd so what happens is, the system starts finding shortcuts, finding ways to have justice on the cheap. One way we do it is we hold people pretrial on bonds they can't make, which is an effective way to coerce them to plead guilty. It may be the only way they can get out. Prosecutors can overcharge, so that they have more leverage to force people to take pleas and give up their right to trial. But another way the system deals with it, is they turn to the poor and they try to squeeze every penny out of poor people. And I think we accept it, because we really don't believe people in the criminal justice system deserve the justice we would want for our own.
RAPPINGI just would like to say this, Kojo. I think, if we would remember that people in the criminal justice system aren't demons, aren’t monsters, they really are, quite frequently, the person who's bagging your groceries, the person who's serving you coffee at your local coffee shop, maybe your neighbor. Many of us are one paycheck away from needing a public defender. And if we could remember that people in the criminal justice system are members of our community and people we care about and should care about, I think there's be much more political will to change these practices we're talking about.
SHAPIROKojo, and to add to Jonathan's point, we've looked at how the criminal justice system -- well, we've looked at why these fees have grown so much over the last 40 years, and it's related to the 40 years of tough-on-crime policies. The -- starting from the 1970s, the criminal justice system got very crowded -- jails, prisons, courtrooms. And it's expensive. It was $6 billion a year for states to run their courts in 1980.
NNAMDIThose are the financial pressures on states and counties and cities?
SHAPIROWhat's that? It...
NNAMDIAre those the financial pressures that are...
SHAPIROYeah. Sure. And now it's $67 billion. They money has to come from somewhere, as Jonathan said. And lawmakers weren't going to raise taxes. So you -- so they figured out they could pass on these costs to the very unpopular group, these people who were going through the courts.
NNAMDIGot to take a short break. When we come back, we'll continue our conversation with Joe Shapiro and Jonathan Rapping about the criminalization of poverty, if you will. But you can call us at 800-433-8850. Do you think someone should go to jail for failing to pay court fees? Do you think charging a nominal fee for a public defender is, well, okay? 800-433-8850. You can send email to email@example.com or send us a tweet @kojoshow. I'm Kojo Nnamdi.
NNAMDIWelcome back to a segment that we're calling the Criminalization of Poverty, known elsewhere in other circles as poverty capitalism. We're talking with Joseph Shapiro. He's a correspondent for NPR's investigations unit. And Jonathan Rapping, president and founder of Gideon's Promise, an organization which trains and supports the work of public defenders. Inviting your calls at 800-433-8850. Here is Cutter in Edgewater, Md. Cutter, you're on the air. Go ahead, please.
CUTTERYeah. I just recently moved out to Maryland from Arkansas. But a few years ago, I had a friend that actually went to jail. And, you know, while they were holding her, she called me. And as soon as she called me, an automated system came up and said, hey, if you want to accept this call from this person, it'll be $9.00 a minute, which I just thought was crazy. Because, you know, even with cell phones and all this now, we've got unlimited and free and all this other stuff. So I just thought the amount was crazy. But also, I would like to see a more progressive penalty based on what people make.
CUTTERRight now, you know, if you're doing 60 miles an hour in a 45 zone, no matter what, you get paid this flat fee of, let's say, $200. Where that doesn't really put a dent in most people, you know? It's not really, it doesn't affect them as much.
NNAMDIWell I really want to get back to the issue of people in the criminal justice system, as opposed to civil penalties for things like driving too fast or traffic violations. And how common, Joe Shapiro, is what Cutter just talked about? The $9 per minute (unintelligible).
SHAPIROThat actually -- that's become pretty common, charging for the phone calls. I know -- I think maybe that WAMU had done some reporting on that locally and then I know the public radio station in Chicago as well.
NNAMDIYep. It's fairly common. Jonathan, people realize that the criminal justice system is broken. But it isn't just about resources, as Joe talked earlier about jurisdictions need, it's more than that. It's a whole culture, isn't it?
RAPPINGI think it is a whole culture. You know, I started my career, Kojo, in Washington, D.C., at one of the -- at a model public defender office, one of the few offices in the country where public defenders have manageable case loads and the resources necessary to give poor people the kind of representation our Constitution demands. After 10 years of doing that, I moved to Georgia and did work in Georgia and Alabama and Mississippi and Louisiana. And it was my introduction into criminal justice systems that have come to accept an embarrassingly low standard of justice for poor people. And you would see these passionate public defenders come into these systems, well intentioned -- they were just as good as any lawyer I worked with in D.C.
RAPPINGBut very quickly the system would beat the passion out of them. And within a few years, they would either quit or become resigned to the status quo. And you would see judges and prosecutors and defenders who came to accept this standard of justice as the norm. And so I think you're right, it's a cultural issue.
RAPPINGAnd so much of what we're trying to do at Gideon's Promise is groom a generation of public defenders, not just to have the skills to provide people the representation they deserve today, but to change this criminal justice narrative. To get people to appreciate values that we have abandoned, values that are just fundamental to our democracy. And I think until we change that culture, there are people in the system who don't get that what's happening is unjust.
NNAMDIJoe Shapiro, the recent events in Ferguson, Mo., brought more public attention to these issues. I was amazed to learn that the city collected $2.6 million in court fines and fees. And that that was the city's second-largest source of income. But now, they may be addressing this issue. Can you talk about what's going on there?
SHAPIRORight. So that turned out to be a big source of the discontent in that city and in that area. So the city council in Ferguson, two weeks ago, when they came back -- had their first meeting since the shooting of Michael Brown -- they took a first step to try to cut back on the collection of these fines and fees. They said there would be a cap on how much they collected. They got rid of a couple fees -- or they proposed getting rid of a couple. One is a $25 fee if you don't show up in court. It turned out, a group called ArchCity Defenders, a public defense group in St. Louis County, had done a report.
SHAPIROThey found that in Ferguson, the courts closed -- when people came in, had to pay their fines and fees, the courts closed a half an hour after the sessions started. And if you showed up late, you were -- you couldn't get in. You were marked as not showing up. And there would be a warrant issued for your arrest. So what happened is that last year -- Ferguson's a town of 21,000 people -- at the municipal court -- so this is what does traffic violations, low-level misdemeanors -- 21,000 people in the city, 33,000 arrest warrants were issued. Now, a lot of these were for people who were driving through...
SHAPIRO...passing through and other towns. But that's how you get this $2.6 million you talked about. And those people end up having these things follow them. They can lose jobs. They can go to jail when police stop them and they find this outstanding warrant.
NNAMDIHere's Kelly in Vienna, Va. Kelly, your turn.
KELLYHi. I have a family member who struggles with addiction and has been in and out of the criminal justice system for a number of years. And it's just been my experience -- or watching her go through this process -- the really high amount of fines and fees that she has to pay I think really gets in the way of her being able to get back on her feet. And so, you know, she -- this is a person who makes, you know, $15,000 or $20,000 a year. And she has thousands of dollars in fines that she's been trying to pay off for years. And I think that that's the way to -- one important way to look at it is, is it standing in the way of people becoming, you know, productive, valuable members of society again?
NNAMDIWhich seems to be the argument that Jonathan Rapping is making. But he's making more of that argument about how we view people who are in the criminal justice system. Before you respond, Jonathan Rapping, I'd like you to hear from Anthony in Port Tobacco, Md., who addresses that issue specifically. Anthony, your turn.
ANTHONYThank you, Kojo. Love your show. First, I loved Gideon's Promise documentary. I saw it on HBO a couple of years ago. But my son is -- graduated recently from a local university with a degree in criminal justice, and just graduated from the local police academy. But I was shocked, throughout his education, how much he would come back from a semester in school and say -- talk about people he would potentially arrest as felons or convicts, even before they'd been adjudicated in the judicial process. It was like he was being taught that anyone he comes into contact with is...
NNAMDIOh, I'm sorry. Anthony, we seem -- you seem to have lost your connection. But Jonathan Rapping, the point that Anthony was making is that his son was referring to people who were arrested as felons routinely. And of course, that plays in with what you're talking about, about how we view poor defendants in the criminal justice system.
RAPPINGAbsolutely. Anthony and Kelly really could have been panelists on this show. I thought their remarks were both really insightful. And to Anthony's point, we use a language in the criminal justice system that helps this dehumanizing, this otherizing. We refer to people as defendants. There are children, we call them respondents, right? We no longer call people by their names. People are given numbers. It's part of the dehumanizing.
RAPPINGAnd so when you do that, you can understand why Kelly's point happens -- why it is that rather than wanting to help Kelly's family member beat this addiction and become a productive member of society -- which is really what justice should be all about, is helping people get back on the right track, pay your debt to society and get back on track -- instead, we are chasing these pennies to try to fuel a criminal justice system that's overblown. And we've let this economic and efficiency value get in the way of justice. And we're losing who we are as Americans.
NNAMDIJoe Shapiro, speaking of the economic inefficiency, I'm wondering about the real costs of doing things this way, both to society and to taxpayers. Isn't it expensive to incarcerate someone?
SHAPIROIt's very expensive to incarcerate someone. It's expensive to go after them, to find them. It's a pretty inefficient way of making money. And I think actually Kelly made that point. It's expensive to families. You know, in Washington State, for example -- by the way, these fines and fees really add up. We're not talking about small amounts of money. We found hundreds, thousands of dollars. In Washington State, for the average amount that's owed for somebody on felony -- so these are fees, fines and restitutions on a felony count -- $2,500 per person. And it's hard to make that debt ever go away. So you get extra costs. You get -- in Washington State, they charge 12 percent interest on that felony amount that you owe.
SHAPIROAnd these are often people who have drug convictions. So, yeah, so it's just burdensome. It's hard for them to get going again. In Washington State, I met a woman named Janie Fuentes, a long history of drug addiction, finally clean and sober. She had all these, she had several thousand dollars of fines and fees to pay off. So she went to the court and they said, we'll put you on work crew. But they charged her a fee, $5.00 a day, to be on the work crew to pay off her fines and fees. She had to borrow it from her daughter.
NNAMDIJonathan, we're almost out of time. But tell us a little bit about the initiative you've launched in Maryland and why you say it's not just about training great lawyers, but also about having the time to get to know clients.
RAPPINGWell, we're partnering -- Gideon's Promise is partnering with the State of Maryland to bring this model of developing lawyers who don't just represent individual clients, but who are pushing the system to live up to our highest values. We started this partnership in May. I'm incredibly proud of it because, although we've grown from an organization with 16 lawyers and two offices in 2007 to an organization that has trained over 300 lawyers across 15 states, this is the first time we've worked with a statewide system. And we are transferring our model to a statewide system. And I think it...
NNAMDIAnd I'm afraid that's all the time we have. Jonathan Rapping is the president and founder of Gideon's Promise, which trains and supports the work of public defenders. Jonathan, thank you for joining us.
NNAMDIJoseph Shapiro is a correspondent for NPR's investigations unit. Joe, thank you for joining us.
SHAPIROYou're welcome, Kojo.
NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.
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