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Jessica Pishko: The Price of Freedom

June 12, 2014

In today's debtor's prisons, incarceration is expensive and starting over is nearly impossible.

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Image from Flickr via Mark Dolce

By Jessica Pishko

Tomas Barrett, an Augusta, Georgia man, was living in a subsidized apartment costing $25 a month, and making money selling his blood plasma ($30 a pop) when he was arrested for stealing a $2 beer from a convenience store. As part of his probation, he was required to wear an electronic monitoring system, a device which monitors alcohol consumption by measuring alcohol levels in sweat. The monitoring device, though required by the courts, was not free. Barrett was required to pay nearly $400 every month in fees to a private company that provides the electronic monitoring equipment and checks in on his progress. Unemployed and barely making ends meet, Barrett fell behind in his payments and found himself facing jail time for owing money.

Sara Geraghty, an attorney at the Southern Center for Human Rights who works on cases involving defendants who are unable to pay criminal penalties, gave me another real-life example. A Georgia woman was fined $705 for lacking proof of car insurance. She couldn’t pay the fine on her court date and was given one year’s probation. Today, instead of owing just the ticket fine, she owes the private probation company a probation charge: $30 a month, totaling $350 a year, all payable up front. Her fine totals over $1,000 and also includes a tax on the amount owed. If she fails to make her payments on time, she will face jail.

Effectively, these privatized probation companies have created a modern-day debtor’s prison, where people who cannot pay are threatened with revocation of their probation and, consequently, jail time. As more and more states charge for mandated services like drug tests and electronic monitoring, those who cannot pay risk their liberty. A recent NPR investigation found that nearly every state in the US charges for services that are required, even some that are constitutionally guaranteed, like court-appointed attorneys, probation monitoring, and even room and board for jail time served. Private probation companies are perhaps some of the worst offenders in this system, extorting increasingly higher fees to benefit their bottom line and threatening to revoke parole if people cannot pay. Falling behind in these payments doesn’t just damage a credit report; it lands people in prison.

The first prisons were not built to contain murderers (or else all royal families would have members in prison), but rather to house debtors.

Insolvency has frequently been associated with moral turpitude dating back to Roman times when a debtor’s body could be carved up and distributed to his creditors. The first prisons were not built to contain murderers (or else all royal families would have members in prison), but rather to house debtors. As contrary as it seems, debtor’s prison was deemed suitable for those who could not—or would not—pay their bills. The idea then, as it is now, was to frighten people into payment. Theoretically, a resourceful person could pony up enough cash if their life and liberty were at stake.

As made infamous by Dickens novels, these prisons were miserable places to be. They were a mainstay in England until the mid-nineteenth century (most American states outlawed debtor’s prisons in the 1830s). Samuel Johnson famously spent time in debtor’s prison for a measly debt of five pounds. Many states in the now-US were founded for those seeking to escape debt, notably Georgia, which was advertised as a refuge for those who could not pay what they owed.

While the logic of imprisoning people who needed to work off debt was dubious at best, at least debtor’s prisons of yore had what were called “beggar’s gates,” where the impoverished could reach their arms through the bars and beg for alms. In the modern-day incarnation, these people are hidden away in jails, putatively for parole violations, unable to meet the mounting demands of their debts. Rather than serve as a haven for the debt-laden, Georgia now has 80 percent of its misdemeanor parolees (people who have committed crimes ranging from shoplifting and traffic violations to domestic violence) supervised by private companies with the power to garner arrest warrants for nonpayment.

In Bearden v. Georgia, a defendant was imprisoned for failure to pay restitution and fines related to his robbery conviction. His excuse: he’d lost his job. The Court held that this violated the 8th Amendment against cruel and unusual punishment. The Supreme Court held in 1983 that the government cannot put people in jail for failure to pay unless that failure is “willful.” But states have historically had difficulty interpreting this case, and the current-day system doesn’t seem much different from the facts held unconstitutional in Bearden.

Private probation companies are worried about the bottom line, not the individual nor the needs of society.

Some would argue that the fines are just. Electronic monitoring, after all, allows people to move about freely, so long as they obey the terms of their parole. States face increasing pressure to fund an ever-expanding criminal justice system without raising taxes, and many states are trying to decrease their overpopulated jails by releasing people accused on minor crimes on parole. Judges who see defendants come into court and claim poverty, sometimes sporting expensive tattoos and name-brand clothing, find it hard to pity those who cannot come up with enough liquid cash to pay their fines. As someone who enforced child support orders (another situation where debtors face jail time), I can attest that it was hard to feel sorry for fathers who skipped out on payments but had multiple cars, televisions, and electronic devices.

But, these private probation companies routinely use their power over individuals to engage in sneaky tactics to overcharge people and threaten them with jail time, even when there are other options available, such as requiring community service. These companies are profitable, raking in $125 million in fees each year from Georgia citizens alone. The Georgia Department of Audits and Accounts even went so far as to issue a scathing report, accusing private probation companies of routine abuse, such as requiring individuals to continue paying fines even when their probation term had expired. The report pointed out that nonpayment was routinely cause for arrest, even when arrest was not in the best interests of justice: “Our review of cases notes and warrant requests found several instances in which providers appeared to improperly use warrants or the threat of arrest to compel payments.” In other words, private probation companies are worried about the bottom line, not the individual nor the needs of society.

There are some small signs that the tide may begin to turn. The governor of Georgia recently vetoed a bill that would have granted even more power to the private probation companies while at the same time protecting them from scrutiny by the press and public. Several Georgia lawsuits have been filed against Sentinel Offender Services, a probation company, for the abuses noted above, including a lawsuit by Tomas Barrett, whose only crime was stealing a $2 bottle of beer.

In Georgia, 75 percent of probation cases audited involved people who had fallen behind in their payments. Misdemeanor crimes comprise the bread and butter of the criminal court system.

However, it’s unlikely that the privatization trend will cease. The Brennan Center for Democracy issued a report in 2010 warning of the inherent abuse when the government contracts against its own citizens. If we believe that the legal system should treat everyone equally regardless of wealth, then we should be increasingly wary of systems that further the gulf between the justice available to the poor versus the rich. As Alicia Bannon of the Brennan Center told me, “These fees are incompatible with the principles of equal justice for all and fair, reasonable punishments that fit the crime committed.” And the problem isn’t small—in Georgia alone, 75 percent of probation cases audited involved people who had fallen behind in their payments. Misdemeanor crimes comprise the bread and butter of the criminal court system.

The worse problem behind these exorbitant fees and unfair tactics is the people they target—those who are poor and owe a relatively small amount. In America, people who are wealthy and owe a great deal—think those with million-dollar mortgages or failed start-ups—fare much better than people who are living paycheck to paycheck. It seems counterintuitive to expect people to put their lives back together when they are threatened with loss of their physical freedom, effectively ending their ability to hold down a job, take care of their family, or engage in meaningful recovery from addiction. And yet, when viewed in terms of coercive mortgage tactics—where people are locked into payment plans they cannot possibly afford—this seems to be yet another sign of the ever-widening chasm of class division.

Jessica Pishko graduated with a JD from Harvard Law School and received an MFA from Columbia University. She practiced corporate law, specializing in securities fraud, and represented death penalty clients and victims of domestic abuse pro bono. You can follow her on Twitter.

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One comment for Jessica Pishko: The Price of Freedom

  1. Comment by Rob on June 17, 2014 at 4:21 am

    Astonishing and heart-breaking. Thank you, Ms Pishko. I’m not American, but I am a fervent fan of Dickens: astonishing that we – the “civilised” world – are so bad at learning the lessons of history. Particularly those that are moral in nature. The USA – and, I’m ashamed to say, where you go we in the UK appear to be following – seems to be blazing a trail for centuries-old social injustice models. And all this under a soi-disant left-wing administration.

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