Reducing Criminal Justice Debt Through Ability to Pay Legislation

• In Event: Inequality and the Politics of Consumer Debt and Debt Relief

Abstract

The United States leads the world in incarcerating its citizens, contributing to declines in political participation, disproportionate representation of rural areas in legislative bodies, disproportionate effects on communities of color and low-income neighborhoods, and other distortions in social, economic, and democratic outcomes (e.g., Weaver and Lerman 2014, Thorpe 2014). Less is known, however, about the implications of the debt imposed by the criminal justice system on defendants and their communities. Some scholars have documented the wide array of monetary punishments imposed on defendants, which include bail, fees, and fines, that can easily balloon beyond the punishment for the alleged crime (e.g., Katzenstein and Waller 2015). Not only are fees and fines levied for the crime committed, they quickly inflate as a result of defendants’ inability to pay them. This leads to significant debt burdens that can cripple an individual’s financial security long beyond any prison sentence. One policy response is the passage of “ability to pay” legislation, which requires judges to consider a defendant’s financial resources when assessing fines and fees. This paper explores the effectiveness of such policies. In particular, I examine whether this legislation lowers the debt burden on low-income defendants. Drawing on court observations, interviews, and data on fees and fines in several Arkansas courts, I examine whether and how judges apply the standard and defendants’ responses to these fees. Ultimately, I find that “ability to pay” legislation does not lead to more equitable application of fines and fees, both because of the vagueness of the legislation and the fact that most defendants are unaware that their ability to pay may be taken into account and feel that courts are unresponsive to the effects excessive fees have on their long-term financial stability. This project has practical implications for the millions of Americans who have contact with the criminal justice system each year. Unlike other forms of debt, criminal debt cannot be discharged with a bankruptcy, leaving vulnerable individuals and families with few options and at high risk for future financial crises. As a result, identifying pathways that will meaningfully reduce criminal justice financial debt is key to reducing the harm caused by the carceral state.

Author

• Delphia Shanks, Hendrix College