In keynote, former state Supreme Court justice raises the specter of “debtors’ prison”
When Andrea Hudson was pulled over for a routine traffic violation in 2013, the police officer found outstanding warrants for her arrest. The charges – abusing an elderly person and fraud – were a surprise to Hudson, who insisted it was a case of mistaken identity.
Her bail was initially set at $10,000 – out of reach for the mother of two. Even pulling together the ten to fifteen percent that’s necessary to pay a bail bond agent to secure her release was a stretch. When a judge raised the bail to $30,000, she could see no way out.
Hudson said she told her public defender she was willing to plead guilty to some of the charges if it would lead to her release. She asked friends to sell her car to raise the money to get her out. By the time the charges were dropped, she’d spent 51 days in the Durham County jail, lost jobs and future employment opportunities and seen her home life upended. Though she’s since been able to get some of the charges expunged, she said the experience will stay with her for the rest of her life.
“There are so many people in jail who have not been convicted of any crime,” Hudson said Tuesday at a conference on criminal justice and debt at the NC Central University School of Law. “They just can’t afford the ransom.”
Hudson now works with the Southern Coalition for Social Justice and the North Carolina chapter of a group known as All of Us or None, managing a bail fund and helping to negotiate unsecured bonds – rather than cash bail – for defendants in Durham.
“That’s why I advocate so hard now,” Hudson said. “Because I know what it’s like to sit in that jail and have no one come to your rescue.”
Tuesday’s event was titled “Criminal Justice Debt: Punishing the Poor in North Carolina” and Hudson was one of many panelists who brought personal expertise to discussions throughout the day on everything from cash bail and deferred prosecution to court costs, fines and fees. The inevitable conclusion, experts said: at nearly every step, the justice system still functions very differently for the poor and for racial and ethnic minorities, with real and lasting consequences.
James Markham, an associate professor of Public Law and Government, has worked with the UNC School of Government since 2007. On a panel with Hudson, Markham said that while there have been some recent advances for the criminal justice reform movement in North Carolina, the last few decades have put poor defendants at a disadvantage that is difficult to reverse.
“It’s fair to say that over the last 25 years or so there has been an increase in the amount of costs and other fees as part of the court system,” Markham said.
In 1995, Markham said, the baseline court costs for the average case would have been around $50. By 2000, those costs were up to $110. Today it is closer to $200.
Things like “probation supervision fees” have doubled from around $20 to $40 per month, Markham said. “Pre-trial jail fees” – the cost assessed to someone who is convicted for the cost of their having been jailed before trial – have gone from $5 to $10 per day. If given a split sentence in which part of a sentence is served on probation rather than being jailed, the cost can be up to $40 a day to the defendant.
“A lot of this can happen by inertia, just automatically,” Markham said. “The clerk just sort of does the keystrokes and adds these things in without anybody sort of stopping to do the math in their head as they go.”
“Forty dollars a day is a lot of money – just forty dollars,” Markham said. “But when you talk about a routine split sentence for like an impaired driving case where someone is ordered to do a seven day split or a thirty day split…thirty days times $40 is really quickly an incredibly large amount of money. It would get anybody’s attention, much less somebody who is already struggling.”
But the piling on of fines and fees is just one piece of a complicated puzzle, Markham said. Another problem is the degree to which forgiving those costs and fees has become more complicated.
“Before 2011 is a person got an active sentence, if they were going to be incarcerated, by default, costs would not apply at all,” Markham said. “A judge could have added them, but rarely did they ever do that if someone was going to go to jail or prison. In 2011, a sort of fundamental change happened. Then, even in the cases where someone gets an active sentence, not just probation, the costs began to apply unless the judge waives them. Making that the default, making it so that the judge had to do something to turn the costs off, applies it in so many cases where people really weren’t thinking that much about it.”
In 2012, requirements changed again, Markham said. Judges were only allowed to waive costs upon a finding of fact and the judge had to go on record, waiving the costs in writing. In 2014, a system was instituted that would track those waivers not just by the judicial district but by individual judge, thereby creating a list, shared with the legislature, of which judges waives the costs at what rate. In 2016, judges were required to give written notice by first class mail to any entity that would be directly affected by that waiver.
“So those changes, as you can see just going back to 2011, increase the amount but also make it more challenging for the court to remove those obligations,” Markham said.
Cristina Becker, a Criminal Justice Debt Fellow with the ACLU of North Carolina, said the changes to the law – the increased fees, costs and requirements – are clearly part of a larger design.
“This is intentional on the part of the legislature,” Becker said during a panel discussion Tuesday. “They have shifted the tax burden not just of funding the courts but funding multiple different agencies like the public school system as well. They have basically tried to fund these agencies on the backs of poor people who have gone through the criminal justice system.”
Eighty to ninety percent of those in the criminal justice system nationally cannot afford their own attorneys, Becker said. As fines and fees have risen over the last 25 years, Becker said, the systems funded by fines and fees that must be collected from people who cannot pay them, have begun to collapse. Funding for public education is a prime example, Becker said.
The vast majority of court fines collected go directly to the state’s general fund, Becker said. The legislature can do what they’d like with the money. But keeping people in jail because they can’t pay increased fines and fees doesn’t lead to an increase in funding for essential pieces of the criminal justice system – like the state forensics lab – that are supposed to be funded in this way.
Patricia Timmons-Goodson, the first Black woman to serve on the North Carolina Supreme Court, gave the keynote speech at Tuesday’s event. Timmons-Goodson, who retired from the court in 2012, said it is apparent that those who are poor and navigating the criminal justice system are “between a rock and a hard place.”
Timmons-Goodson reflected on her own life as the oldest of six children, whose Army sergeant father died young and whose family struggled to make ends meet.
“I know first-hand what it’s like for a large family to live paycheck to paycheck,” Timmons-Goodson said. “I understand all parents want a better life for their children. I have lived and I have seen the difference just a few dollars can mean to the financial survival of a family. I know what can happen if the playing field is even somewhat level – if opportunities exist for poor families.”
Timmons-Goodson now serves on the U.S. Commission on Civil Rights. She pointed to the commission’s report, Targeted Fines and Fees Against Low-Income Communities of Color, released last year.
“It’s important to understand how the fines and fees bubbles began inflating,” Timmons-Goodson said.
In the 1980s law enforcement was encouraged to concentrate on low level offenses as a way of preventing larger ones. Fines and fees associated with those minor offenses increased and became more appealing as a way of raising revenue without having to raise taxes, Timmons-Goodson said.
She also noted that data show that ballooning fines and fees track with a large increase in the number of those incarcerated. The data cited in the report did not find a correlation between cities’ poor populations and fines and fees, but a racial correlation was found.
Data also exist which show that imposing fines and fees on juveniles increase the chances of their returning to jail. However, Timmons-Goodson said, some of the most important data on the issue aren’t available.
“To put it in context, we looked the fact that there have been at least three major court rulings saying that incarcerating people who can’t afford to pay their fines and fees is unconstitutional,” Timmons-Goodson said. “We then looked at how many people are incarcerated in the United States because of a failure to pay fines and fees. But what we determined as a commission was we were unable to determine that because most states and cities don’t collect data on this and neither does the federal government.”
That absence of data is a real problem, Timmons-Goodson said, making it harder to see the full scope of the problem. “My concern is that not enough of my fellow North Carolinians are aware of what’s going on and the efforts that are being made on their behalf,” she said.
The more one dives into the issue, she continued, the more there is a creeping dread modern debtors’ prisons may be forming in places where that has never seemed possible.
“Debtors’ prison,” Timmons-Goodson said she has been saying to herself. “We don’t have that here, do we? We don’t have that here. Do we…?”