By Michael K. Williams, The Huffington Post
To understand the brutal truth about debtor’s prisons in modern America ― and how to end them ― you need to know the story of a single, working mom from Mississippi.
Qumotria Kennedy cared for her two children by cleaning houses in Biloxi, Mississippi, a small city on the Gulf of Mexico. Despite picking up work whenever she could, money was still hard to come by. So when she was arrested for driving without insurance or a license, she couldn’t afford to pay the fine.
To understand what happened next, you need to take a detour through history. America formally abolished debtor’s prisons ― the practice of locking up people too poor to pay their debts ― more than two centuries ago. As recently as 1983, in the landmark case Bearden vs. Georgia, the Supreme Court upheld the principle.
The Supreme Court affirmed that only those who willfully refuse to pay a court-ordered fine should face time behind bars, not those who are indigent and unable to pay.
The Supreme Court affirmed that only those who willfully refuse to pay a court-ordered fine should face time behind bars, not those who are indigent and unable to pay. But the court failed to clearly define what it meant by “willfully refuse,” or even “indigent.”
Standards for both vary wildly across the country. One judge in Washington decides whether a person can pay solely based on their physical appearance in the courtroom. While defendants are supposed to have the right to an indigency hearing and to alternatives to fines, these rights are too often overlooked.
But the court failed to clearly define what it meant by ‘willfully refuse,’ or even ‘indigent.’
As towns and cities increasingly finance court costs and local budgets with fines and fees ― every state except Alaska, North Dakota, and DC has increased civil/criminal fees since 2010 ― judges have every incentive to tack on as many costs as possible. These fees tend to compound with late penalties, driving people even further into debt.
Even some of the alternatives are appalling. The State of Washington charges people who cannot pay immediately 12 percent interest, potentially leaving someone experiencing poverty trapped in debt for decades.
In short, the Bearden was bold in broad strokes, but imprecise and vague on the details. And so it was that Kennedy, and so many like her, fell through the gaps in the law and into jail.
When Kennedy first faced fines for driving without insurance, she was not provided a court hearing on her ability to pay. No one informed her of her right to request counsel or a public defender. No one offered her community service as an alternative to payment. When she asked her probation officer about it, he discouraged the idea.
Two years later, Kennedy’s friend was driving the two of them to pick up their teenage daughters when they were pulled over by policemen. She was immediately arrested on a warrant for failure to pay what was now a $1,000 bill for traffic fines. Her daughter was left wondering what happened to her as Kennedy was thrown in jail for five nights. To add insult to injury, she was fired from her cleaning job because she missed work while detained.
Across the country, low-income Americans are being jailed for failing to pay legal debts they cannot afford at alarming rates.
Because people of color are disproportionately targeted by our criminal justice system and disproportionately low-income, they bear the brunt of this new, two-tiered system of justice.
The ACLU has documented this nationwide trend in its groundbreaking report, “In For A Penny: The Rise of America’s New Debtors’ Prisons,” the result of a year-long investigation in five states. Across America, the ACLU has been using litigation and advocacy to stop this violation of constitutional rights.
One of the greatest signs of hope yet came when the ACLU and Qumotria Kennedy teamed up. Kennedy was a plaintiff in an ACLU case against Biloxi, Mississippi, filed in October 2015. Recently, Biloxi and the ACLU reached a sweeping settlement that provides a model for future reform.
People of color bear the brunt of this new, two-tiered system of justice.
Under the terms of the agreement, Biloxi will scale back or eliminate the use of for-profit probation companies and debt collectors that have an incentive to collect more fees, and cease issuing criminal warrants for failure to pay. It will place limits on using jail or suspended driver’s license to punish nonpayment. The city will also adopt a clear standard for determining inability to pay – a “substantial hardship” on a person, or if she or he earns less than 125 percent of the federal poverty line. Judges will receive detailed court procedures and a “Bench Card” to guide them, and be required to consider the ability to pay at sentencing.
As the ACLU has shown, Qumotria Kennedy’s story is not unique. It could have – and has – occurred across the nation.
The rise of America’s new debtors’ prisons has sparked bipartisan outrage at the way low-income individuals face a two-tiered justice system and the trampling of their constitutional rights. Now, in the Biloxi settlement, we have a model for future reforms.
The addiction to court-ordered fines and fees has created pipeline into jail that leaves a gaping hole in communities. It shouldn’t take a court case – or another story like Kennedy’s – to convince our leaders to act.