How Prison Debt Ensnares Offenders

Even after serving time for a felony conviction, former inmates can remain legally bound to the judicial system for the rest of their lives due to court-imposed fines and fees related to their crime. In some counties in Washington State that adds up to an average of $9,204, according to Alexes Harris’s new book A Pound of Flesh.

“Jurisdictions are imposing a great deal of fines and fees on people who have an inability to pay them. A consequence is that people are permanently tethered to the criminal-justice system, are being issued warrants and summons to court, and are being held accountable for their poverty, essentially,” Harris said. A sociology professor at the University of Washington, she became interested in LFOs—legal financial obligations—after completing some work requested by the Washington State Minority and Justice Commission. Expanding the scope of the work led her to conclude that, “some jurisdictions are sending people to jail solely for their indigence, for their inability to make payments on their fines and fees.”

Harris spent eight years examining the multiple monetary sanctions levied on those convicted of felonies in five counties in Washington, whose names she masks in her work. Her research included interviews with court personnel—from judges on down—to in-person observations during court proceedings, and analyzing reams of publicly available data. The counties were selected for their racial characteristics, population size, and the average size of  the legal financial obligations they imposed.

Harris and her team found a great deal of variation among these counties, despite the fact that they were all applying the same statute. The state legislature established a code for legal financial obligations in the 1980s to “help recoup expenses, to establish accountability for defendants, and to also structure sentencing,” according to Harris.

Beyond the obvious impact of creating financial debt—with 12 percent interest and a $100 surcharge annually—the LFOs lead to constant contact with the criminal-justice system, even if a person pays. Every month payments are due at the courthouse or online, with costs added for using credit cards. For people who can’t pay, the debt “creates this shadow of the criminal-justice system in their lives constantly. They’re worried about being picked up,” Harris said. The statute states: “When any person is found guilty in any superior court of having committed a crime, except as provided in subsection (2) of this section, there shall be imposed by the court upon such convicted person a penalty assessment.”

“I saw people picked up on nonpayment warrants for sleeping in the park because they were homeless,” Harris said. Hauling people to jail is possible because, as far as the law is concerned, monetary sanctions are the same as prison sentences, community service, and probation: Once a person is out of compliance, they can be taken into custody.

“LFOs, per statute, are the responsibility of the administrative office of the court. They’re a function of the judicial system,” said Jeremy Barclay, the communications director for the Washington Department of Corrections. He explained that LFOs are assessed “at the time of sentencing by the court, not at the time the individual [goes] to prison.” He wrote in an email that, for the most part, “LFOs do not grow once the individual is released from custody with two notable exceptions: open restitution orders for ongoing expenses to a victim or an ongoing assessment of interest.” Additionally, by law, LFOs for offenses on or after July 1, 2000, remain outstanding until paid in full.

The imposition of LFOs has the effect of further burdening individuals whose reentry into society is already hindered by obstacles, it can make them even more dependent on families that may already struggle due to their prolonged absence while behind bars, and it delegitimates the role of government in their eyes since they perceive the fines as extensions of a penalty they have already satisfied. In her book, Harris writes: “Debtors cannot regain certain rights lost upon conviction, such as the right to vote, carry a weapon, serve on juries, or run for elected office, until their account is paid in full.”

Harris and a team of graduate students looked at all 50 states, and found that each allows for the imposition of fines on defendants. Some 63 percent of states also allow additional fines due to nonpayment of LFOs. “That is, for example, charges are imposed on people if they enter into a payment plan, interest is charged on unpaid balances, and collection surcharges are also imposed,” she said. Of those states, 70 percent charge extra for carrying a balance. “Basically, if you’re poor and unable to make the full payment, then you will be charged more.” About 71 percent charge for a public attorney. About 92 percent incarcerate for nonpayment, which is seen as a violation of a sentence. Though national figures do not exist, a White House Council of Economic Advisers brief offers details on multiple states’ individual practices.

Washington State collected $30 million dollars in LFOs in 2012, according to Harris. About 19,000 new debt accounts are added every year for formerly incarcerated people. Such debtors make an average payment of $113 each year. A report by Columbia Legal Services found that average amount of LFOs imposed in a felony case is $2,540 and that in one county jail, 20 percent of the population on a given day were there for nonpayment.

Some court officials Harris interviewed explained the fees as attempts to recoup lost dollars for costs incurred by the criminal-justice system. But in some instances, the fees and fines directly produced income for the local government. “One presiding judge of a county told me he went to his county councilman and said, ‘I need another judge, we're overworked,’ and the councilman said, ‘Well, bring in more LFOs.’ There’s a direct relationship to what some court officers felt they needed in terms of personnel and being told that they need to recoup more fines and fees,” Harris said.

“People would say, ‘We need to generate more money for our court system.’ But the story is not really about punishment, about recouping expenses that people thought they were recovering. It’s more about accountability.”

For some local judicial officials, the law is about more than recouping costs--they view it as a moral instrument of individual reform. “A lot of the court officials and the lawmakers I interviewed said that this is a system that holds offenders accountable, in addition to going to jail or to prison and to being on probation. That this allows them to show remorse with every payment. It was more of this rhetorical justification of assessing fines and fees, by saying that this is in some way helping people become whole and become rehabilitated by paying into the system what they owe. A perverse paternalistic view,” Harris said.

But in many instances the fees are part of legal restitution for victims.

“When someone is convicted of a crime and there is an actual victim, at some point there will be a restitution hearing and the victim’s attorney will present hospital bills or insurance costs and those costs will be sentenced to the defendant in the form of restitution,” Harris said.

In Washington, when crimes have a victim, a $500 victim penalty fee is assessed to everyone convicted of a felony or gross misdemeanor,  and $250 for a misdemeanor. In most cases, the prosecutor’s office has set up a victim-advocacy program and counties send that portion of the money they collect to the prosecutor. Some counties add processing fees and retain a lot more of the payments. One of the counties in Harris’s work retained almost 60 percent of what it received, and sent out about 32 percent in restitution. The least punitive county in her study reallocated 70 percent of what it received. Theoretically, any time a defendant makes a payment towards his LFOs, county clerks process that money and, depending on how much it is, send a check every month or two directly to the victim until that restitution is paid.

By Washington State statute, restitution is prioritized above any other LFO. “In reality, some clerks take the first $100 in payments from the defendant, they won’t label it as a an LFO, but as a collection fee and keep that money before the victim receives any money. That’s the problem when defendants are paying a state average of $113 in counties that prioritize their collection fee. Victims are not receiving their restitution,” Harris said.

And these policies impact millions. A 2010 estimate put the figure of adults living with a felony conviction at 5.85 million. Today, an estimated 2.5 percent of the adult population has been convicted of a felony, according to A Pound of Flesh. That’s one in 40. Adding their families and loved ones who often rally around them after their release multiplies that figure considerably. “Families get ensnared in the system because they don't want their loved ones to go back to jail,” Harris said. Critically, those numbers don’t include the victims and, by extension, their families and loved ones, who cannot expect to be made whole by material resolution alone.

Oliver Williams was charged $63,000 in a civil lien in 2007 by a Florida court for his stay in prison for a drug-related felony conviction. He says the judge informed him that he’d owe $50 per day for the 42 months to which he was sentenced though he said he only served three and a half of those years and did so in the county jail (while awaiting trial for another charge). The state statute that makes this possible reads: “Upon conviction, a convicted offender is liable to the state and its local subdivisions for damages and losses for incarceration costs and other correctional costs.”

He complained about paying twice for the same crime. “If I’m already going to prison, why are you charging me to go to prison? It makes no sense,” Williams said. The initial amount has been accruing interest since 2007, but he does not know at what rate. “It’s probably over $100,000 by now.” In Florida, the judgment interest rate is set by the state’s chief financial officer every quarter. Right now, it is 4.78 percent annually, according to the office of the state court’s administrator. Williams said he has not tried to appeal or resolve the issue in the last eight years because he has no ability to pay. “I wouldn’t even try. It’s an insurmountable amount. I’d have to take out a mortgage to pay it off.”

He and his fiancee are applying for homeownership programs at the moment but he fears that a thorough records search during the application process might surface his civil lien and impede them from qualifying to buy a house. When we spoke, he seemed perplexed by the financial penalty because it was in the hands of the judge. “It’s all up to the discretion of the judge. So he could have chosen not to impose that on me.”