Jonathan P. Baird

This piece appeared in the Concord Monitor on October 7, 2015 under the title “The Crime of Poverty”.

In a new investigative report, the American Civil Liberties Union (ACLU) of New Hampshire found that Circuit Court judges in our state are jailing debtors who have no ability to pay fines or fees they owe. Instead of inquiring into whether they are “willfully” failing to pay, judges are locking poor people away.

The practice is reminiscent of debtor’s prison, an institution with deep historical roots in America and England. Back in the 19th century, jailing debtors who were unable to pay a court-ordered judgment was a common legal practice. Debtors typically worked off their debt or they had to find some outside source of funds to pay off the amount owed in order to get out of jail.

Charles Dickens went through the experience of having his father and the rest of his family incarcerated in Marshalsea Debtor’s Prison when he was 12 years old. Dickens had to leave school to work in a factory to help support his family. His father’s time in the debtor’s prison was traumatic for the whole family and it had a shattering psychological impact on the young boy. Of that time, Dickens later wrote:

“… My whole nature was so penetrated with grief and humiliation…that even now, famous and caressed and happy, I often forget in my dreams that I have a dear wife and children; even that I am a man; and wander desolately back to that time of my life.”

In his work Dickens repeatedly wrote about debtor’s prison, most notably in his novel, Little Dorrit. The long shadow that family experience cast for Dickens is instructive about the human cost that is being inflicted on debtors right now.

The ACLU-NH found the practice of jailing debtors who had an inability to pay is systemic and not caused by rogue judges. In their report, they found nine judges in ten different circuit courts throughout the state jailing debtors who had no ability to pay their fines.

As pointed out by the ACLU-NH, debtor’s prison is supposed to be illegal. That law is well-established by both U.S. Supreme Court precedent and by state statute and rules. The law states that before an individual can be incarcerated for failure to pay a fine or fee, the court must meaningfully inquire into the reasons for failure to pay and it must determine that the individual is “willfully” refusing to pay despite having sufficient resources. The law prohibits courts from jailing individuals who simply cannot afford to pay.

The ACLU-NH also notes that both the federal and state constitution require representation by counsel if the judge is considering jailing for failure to pay a fine or fee in a criminal case. The ACLU-NH found that judges in New Hampshire were not conducting a meaningful ability-to-pay hearing. The word they use to describe current process was interesting – hyper-expedient. Neither were judges appointing counsel for poor people they were sending to jail.

The ACLU-NH report included several representative personal stories. In one case, Alejandra Corro, a 22-year-old single mother of two very young children, stole assorted infant clothing from Sears. She took the clothing for her children. Ms. Corro pled guilty and the court fined her $1000 with $500 suspended. The court added a $120 penalty assessment so the total owed was $620. The court authorized Ms. Corro to pay off the balance through 62 hours of community service.

Some time after that, Ms. Corro’s apartment burned. She had to move in with her mother. When she returned to court, she had only completed 20 of the required 62 hours but she stated the intention to complete the rest. Her previously appointed public defender tried to assist Ms. Corro but the court denied her request for an ability-to-pay hearing as well as her request for counsel. The court ruled that if Ms. Corro could not pay the remaining $420 she owed that day, she would be sent to Valley Street Jail in Manchester for nine days.

With the help of her public defender and the ACLU-NH, who filed an emergency petition, Ms. Corro only served one night in jail.

Another story in the report highlighted a homeless man named Dennis Suprenant who had been charged with misdemeanor conduct after a vehicle accident. Because Suprenant was indigent, he obtained a public defender to represent him on the charge. While his case was pending, the state’s Office of Cost Containment sent Suprenant notices about his non-payment of public defender attorney’s fees. Unlike some states, New Hampshire bills poor people for public defender services.

At a review hearing in February 2014, the court ordered Suprenant to pay $302.50 in its entirety by the end of the day or he had to go to jail. Suprenant’s public defender informed the court that the judge’s order would cause Suprenant to lose a job he had obtained two weeks earlier. Suprenant had, in fact, been making some positive strides in his life. He had entered drug treatment, graduated from a drug rehabilitation program, obtained his GED and started the job. The public defender argued jail would set back Suprenant to where he was before.

The judge responded by amending his order. He required Suprenant to pay all the money in his possession — $90. He then ordered that the remaining balance – $212 – be paid in less than two days. The court ordered that if the remaining $212 was not paid in two days, Suprenant was going to jail at Valley Street where he would be held until the amount was paid in full. How someone who was indigent would come up with that money while he was in jail remains a mystery.

The Public Defender and the ACLU-NH filed an emergency petition that resulted in the judge’s order being stayed.

I do not think these stories are unusual. Other than the fact that Ms. Corro and Mr. Suprenant ultimately got counsel, their stories reflect a strong national trend. All over the country, poor people are being jailed for failure to pay an increasing array of fees and fines associated with minor offenses and their rights are routinely ignored. These collateral costs follow offenders around and make it much harder for them to turn their lives around. Advocates have been calling it the criminalization of poverty.

National Public Radio (NPR) has reported that since 2010, forty-eight states have increased criminal and civil court fees. Offenders are now being charged for a long list of government services that were once free, including ones that are constitutionally required.

NPR found at least forty-one states charge inmates room and board for prison stays. Forty-four states bill offenders for their own probation and parole supervision. In forty-nine states there is a fee for electronic bracelets monitoring offenders when they are out of jail. At least forty-three states now bill defendants for public defenders. Inmates everywhere in the U.S. are charged unreasonably high fees for telephone calls from jail. As NPR reported, these fees often add up to hundreds and sometimes thousands of dollars. NPR estimated that between 80 to 85% of inmates now leave prison owing debt for court-imposed costs, restitution, fines and fees.

While state officials commendably responded to the ACLU-NH report and expressed a commitment to ending debtor’s prison, they do not appear to be seeing the big picture. We need to consider whether it is fair and just to shift the costs of running the criminal justice system onto the backs of some very poor people. All the fees and fines imposed on them make their lives and their reentry into society much harder. The New Hampshire Legislature should adequately fund the court system so that impoverished people who have committed a crime but who want to change and improve their lives are not unjustly burdened with debt they cannot pay.

Also, it makes no economic sense to jail people who cannot afford to pay fees or fines. The cost to the state for court proceedings and for housing people in jails far exceed the amount that defendants are charged as the ACLU-NH report argued.

The deeper moral issue here is the way our society treats our poor and vulnerable people. Where is our Charles Dickens to tell their stories and to speak for them in this time and place?