Some Courts Recreating Debtors’ Prison

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Tamar BirckheadOn Nov. 24, 2004, a 13-year-old boy named Taylor M. and several other boys in Ventura County, Calif., threw rocks at construction equipment owned by J&S Excavating [J&S]. After another boy threw a firecracker into a bulldozer, Taylor shut its door, and the bulldozer ignited. Damages were estimated at more than $170,000, including repair costs, rental expenses and lost labor — although the estimate failed to account for the amount that J&S ultimately recovered from its insurance company. The state charged Taylor with arson and felony vandalism in juvenile court, he admitted the allegations, and the judge declared a maximum confinement period of three years, eight months.

At the time of the offense, Taylor was struggling both academically and behaviorally in the sixth grade. He was failing several courses and repeatedly disciplined for misbehavior. He was diagnosed with a learning disability and attention deficit hyperactivity disorder, and his peers ridiculed him for attending special-education classes.

On April 25, 2006, upon the prosecutor’s recommendation, the court placed Taylor in a deferred entry of judgment (DEJ) program with multiple conditions, including monthly restitution payments of $100. Soon after, Taylor’s parents, who were already struggling to pay their bills, experienced a series of health setbacks. His mother was diagnosed with cancer and then suffered two strokes, and his father became disabled. His parents separated, and his father became homeless, as did his older brother. Because of his mother’s illnesses, Taylor had to assist her with basic tasks of cooking and cleaning, while at the same time he made numerous attempts — all ultimately unsuccessful — to find work to pay his restitution.

Despite these hurdles, Taylor made some strides. His grades improved, as did his school attendance and behavior, and he managed to complete all 80 hours of court-ordered community service as well as a counseling program. Ultimately, however, Taylor’s family was able to pay a total of only $175 toward restitution between 2006 and 2009, at which time Ventura County Probation Officer Monica Gomez recommended revocation of his DEJ placement because “no effort [was] being made at all.”

The juvenile court judge agreed with the probation officer’s recommendation and revoked Taylor’s DEJ placement, putting him on formal probation that left him vulnerable to the three years, eight months, term of incarceration. In 2010, the Court of Appeal of California affirmed the judge’s decision, stating that the probation department would not have recommended the revocation of his DEJ placement “if he had met with his probation officer on a regular basis and made small payments ($10, $5, or $1). Appellant failed to establish that he tried to do those things.”

[Related: The Corps Network Helps Court-involved Youth Nurture New Skills]

Across the U.S., even minor criminal charges, such as loitering, littering, and unpaid traffic tickets, trigger an array of fees, court costs and assessments in both juvenile and criminal courts that can create insurmountable debt burdens for already-struggling families. Although the U.S. Supreme Court held in 1970 that extending a prison term for an inability to pay criminal justice debt violates the 14th Amendment’s Equal Protection Clause, and in 1983 barred the revocation of probation for failure to pay a fine without first inquiring into a person’s ability to pay, jurisdictions continue to ignore these requirements. Some courts impose a “fines or time” alternative sentence that forces defendants to choose between jail and immediate payment in full.

For low-income families, criminal justice debt can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, additional court appearances or warrants related to debt collection and nonpayment, and extra fines and interest for late payment. When parents face such collateral consequences, the very act of meeting the economic and emotional needs of one’s children becomes a formidable challenge. Failure to do so can trigger the intervention of Child Protective Services, potential neglect allegations and further court hearings and fees.

For young people in the juvenile court system, mandatory attorney fees, detention fees, restitution fines and supervision fees impose a burden that increases the risk of recidivism. When such circumstances are exacerbated by unemployment, substance abuse or mental illness, families without an extensive support network have little chance of succeeding. For parents and their children who are caught within the state’s debt-enforcement regime, the threat of punishment is an ever-present specter, and incarceration always looms.

One of the inherent ironies is that rather than serving as a valuable revenue source for the state, juvenile and criminal justice system fees require an extensive infrastructure to turn court and correctional officials into collection agents. This burdens the system and actually interferes with the proper administration of justice. Moreover, states frequently divert court fees and assessments to projects that have little connection to the judicial system.

In several important ways, this contemporary justice tax has the same societal impact as the post-Civil War practice of coerced labor for debt known as peonage: Both function to maintain an economic caste system.

Several options for reforming what I’ve called “the new peonage” include laws that create and enforce fee exemptions for indigence: eliminate unnecessary interest, late fees and collateral consequences; and end incarceration and extended supervision for nonwillful failure to pay court costs. For young people like Taylor M. and their families, youth workers, program directors, and advocates should be aware of these issues, and our states must pass legislation that eases the burden on low-income families and ends the phenomenon of the new peonage.

Tamar Birckhead is a law professor at the University of North Carolina at Chapel Hill whose law review article on “The New Peonage” will be published in 2016. The facts regarding Taylor M. are based on his appellate brief and the unpublished decision of the Court of Appeal of California.

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