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    11.14.11 Sparer Fellows Discuss the Inequity of Criminal Justice Debt

    Every month, Edward V. Sparer fellows attend a lunch to hear from speakers about public interest law. At the most recent program, Rebekah Diller, Deputy Director of the Justice Program at the Brennan Center and Mitali Nagrecha of the Fortune Society, presented their findings detailed in the Brennan Center for Justice’s report, “Criminal Justice Debt: A Barrier to Reentry.”

    Organized by Ari Rosmarin ’13 and moderated by Professor Stacy Caplow, the discussion addressed the “proliferation of ‘user fees’” imposed on individuals with criminal convictions, which the Brennan Center argues are “financial obligations imposed not for any traditional criminal justice purpose such as punishment, deterrence, or rehabilitation, but rather to fund tight state budgets.”

    “Across the board, we found that states are introducing new user fees, raising the dollar amounts of existing fees, and intensifying the collection of fees and other forms of criminal justice debt such as fines and restitution,” said Diller. She provided an overview of the report, which examined practices in 15 states, including New York, with the highest prison population.

    The researchers found that fees were imposed on prisoners without taking into account their ability to pay and that their inability to pay led to more fees and an endless cycle of debt. Fourteen of the 15 states use “poverty penalties,” which include late fees, payment plan fees, and interest. “Some of the collection fees are exorbitant and exceed ordinary standards of fairness,” she said. As a result, aggressive collection tactics can make it difficult for debtors to meet other obligations and makes it more likely that they will be arrested and re-incarcerated for falling behind on debt payments.

    “Although ‘debtors’ prison’ is illegal in America,” Rosmarin said “re-incarcerating individuals for failing to pay debt is taking place in an alarming number of states. This debt significantly hinders a person’s chance to reenter society successfully after conviction.” Further, he argued that the states were funding budget gaps with fee revenue, which was not the purpose for which the fees were intended.

    Nagrecha closed the discussion by providing specific examples from her work with the difficulty people seeking to reenter society are facing. She pointed out that child support payments pose a specific problem for fathers who cannot pay what they owe, in addition to the fees and fines charged on top of the monthly payments. Child support orders are not adjusted or halted when a parent is in jail and the fees and fines continue to accrue. As a result, much of the debt is owed to the state, not the custodial parent. When it is time to leave prison the debtor does not know how much he/she owes and face real consequences of arrest, more jail time and estrangement from families and society.

    The discussion revealed that there is a clear and convincing need to reform the system. The participants argued that the states should end the practice of incarcerating individuals for failure to pay criminal justice debt before a court determines whether or not the incarcerated is able to pay.