Sociologist Alexes Harris explains how America’s justice system comes down harder on people in poverty
Alexes Harris studies how people are punished in the United States.
Growing up in Seattle in the 1990s as a woman of color, she watched as those around her were carted off to prison for drugs and other crimes. She was curious: What happens to them after they are taken away? What are their chances at a decent life once they’re convicted?
She went on to earn a Ph.D. in sociology from the University of California, Los Angeles, and has researched the effects the criminal justice system has on individuals who come into contact with it.
What she’s discovered is a system of financial punishments that permanently trap people who are poor in the criminal justice system, while people who are rich suffer fewer consequences because they can afford to pay their legal debts and walk away.
These debts come in the form of court fines and fees, the cost of retaining a public defender and, in some jurisdictions, the cost of an offender’s jail or prison stay. These financial penalties are the subject of her book, “A Pound of Flesh: Monetary Sanctions as a Punishment for the Poor,” which was set to release June 6.
In her book, Harris examines financial sentences imposed on felons and the impacts they have on their lives by exploring case studies of individuals and practices around the country, with a focus on five counties in her home state of Washington.
She was invited to the White House in December to discuss the findings of her research on monetary sanctions, and she was recently awarded a $4 million grant from the Laura and John Arnold Foundation to extend her research on this topic into California, Minnesota, Missouri, Texas, Illinois, New York and Georgia.
Harris makes it clear she believes people who break the law should be punished.
“I think the question that my research raises is what is enough punishment?” she said. “If people go to jail, if there is prison time, if they are on probation, if they do drug and alcohol assessment, if they go to victim panel classes or if they are on electronic home monitoring, is that enough? Or do they deserve an additional financial sanction?”
Emily Green: You started one of the chapters in your book with this quote from James Baldwin: “Anyone who has ever struggled with poverty knows how extremely expensive it is to be poor.” Do you think the American justice system punishes people for being poor?
Alexes Harris: It definitely punishes people for being poor. With the study of monetary sanctions, we see that we have a two-tiered system of justice.
If you are wealthy, you can be convicted, serve your time in jail or prison, go on probation, pay your fines and fees, and essentially be done. You still have the collateral consequences of a felony conviction, but you can at least be free from your relationship with the criminal justice system.
If you are a poor person – and the vast majority of people who make contact with the criminal justice system are poor – they’re tethered for life, because of the legal debt.
In many states, particularly Washington because you can’t declare bankruptcy, you have 12 percent interest that accrues, and you have a $100 annual surcharge. For many people who are poor, this is a permanent debt, a permanent punishment that they serve.
E.G.: In your book, you note that in the 1830s, there was a national movement to abolish debtors’ prisons in the United States, and each state deemed that to imprison someone for their debts was unconstitutional. But it appears there is an exception to this rule. Can you explain?
A.H.: Each state outlawed the incarceration of people who owed civil debt. But monetary sanctions – fines, fees, interest, surcharges – that’s legal debt. The only protection individuals have to not be incarcerated if they are not paying their debt is Bearden v. Georgia (1983), which establishes “willful nonpayment.”
Courts are supposed to make an assessment of a person’s ability to pay their fines and fees, and if the court deems them as “willful nonpayers,” then they can be incarcerated. The problem today is that, in the jurisdictions that I studied, some judges assess people who opt to have a manicure or who smoke cigarettes or who pay for tattoos as willful nonpayers – they chose to use their money for something other than paying their fines and fees and are sanctioned to jail for 15 to 60 days as a violation of their court orders.
E.G.: What would you say to those judges? Do you think that’s a fair judgment?
A.H.: I think we need to have clear criteria so everyone is assessed equally on what being a willful nonpayer means, and what the ability to pay means. If someone is receiving Social Security income, disability check or a student loan check, does that mean they have the ability to make regular payments?
I think we need to establish a system that identifies clear criteria that judges must individually assess to determine whether or not someone has the means to make payments. I’ve been in conversations with judges across the nation, and some judges think it’s fair that they can make an assessment of conspicuous spending: If someone has a nice purse or a nice outfit, then I should be able to judge them and say that they have the means to make payments. But I don’t think that that constitutes equal justice.
E.G.: What kind of sociological effect do monetary sanctions have on different communities?
A.H.: We are disproportionately impacting people from poor communities and communities of color and saddling them with legal debt.
In Washington, we generated in 2011 $30 million from fines and fees, and we open 19,000 new legal-debt accounts every year. The average annual payment is $113, so we’re generating a good deal of money, but it’s from a large number of people making very small payments.
FURTHER READING: What do monetary sanctions look like in Oregon?
E.G: In Multnomah County, people have 30 days to pay their fines in full, and if not, significant fees are added. Are there factors during those first 30 days after a person is released from jail that might make it more difficult to pay these fines?
A.H.: There are a great number of factors. Someone who is incarcerated might lose their job or go behind on their rent.
Right now we’re not taking into account individuals’ ability to pay at the time of sentencing or post conviction and all of the collateral consequences that these people face: for employment, for wages, for finding housing – all of these circumstances.
E.G.: Is this an American thing, or do criminal justice systems in other countries also practice a system of imposing monetary sanctions? Or, are there some countries that are employing better systems?
A.H.: This is definitely an American style of criminal justice. We are extremely exceptional in the way we incarcerate and convict people and the ways in which we assign them to legal debt.
In other nations around the world, from Europe to African countries to South America, they use a day fine system. These are more logical, realistic ways to assess debt to individuals.
The day fine system is used in lieu of incarceration. It’s also a system where the defendant’s ability to pay is assessed. So the average daily wage is established, and then an offense score is used, and those are multiplied to equal an amount the defendant must pay, and it’s proportionate to what the defendant has the ability to pay and to the severity of the offense.
E.G.: Is it based on a percentage of their income, rather than a flat amount?
A.H.: Right. Bill Gates would get a ticket that’s proportionate to what Bill Gates can afford versus Joe Smith, who is homeless, would get a ticket, and the price of that ticket would be proportionate to what he could pay, so both would be hit equally in terms of percentage of their ability to pay, but it’s also based on a scale of the seriousness of the offense they are convicted of.
E.G.: OK, so other countries do have these monetary sanctions, but they have a more equitable way of applying them so that someone who is very wealthy might feel the sting about the same as someone who is very low income.
A.H.: Exactly, and they do it in lieu of going to jail. It’s not this layer upon layer upon layer of punishment, but it’s truly an alternative to incarceration for people who are convicted of nonviolent offenses.
A person gets a punishment and the criminal justice system is saved costs, so they’re not paying to incarcerate them. It’s a way to rethink what punishment means in the United States.
E.G.: I wanted to talk a little about “pay to stay.” I saw that here in Oregon, we have a law on the books that allows the Department of Corrections to place a lien on a former inmate’s house until they pay for their room and board in prison. Is this something, across the country, that actually happens to people? I mean, if you’re a homeowner and you go to prison in America, is there a good chance you could lose your house?
A.H.: Oh definitely! In a lot of jurisdictions, as in Washington, you can be charged $50 a day for prison or at-cost for your jail stay, per day.
I had a man email me last week who owes over $60,000 after being released from prison in Florida because he was charged $50 a day for his incarceration. This is a common practice.
We think prisoners go to prison at the expense of the citizen, and they get cable, education and all that, but that’s not reality.
Individuals are literally paying for their cells, their doctors and supplemental food to survive. People can lose their jobs, their kids, and they can lose their homes when they are incarcerated.
But until you’re actually in the local jurisdiction and the county, it’s hard to see what’s happening based on the state statute.
In Washington, I studied five counties, and they all interpreted the state statute very differently. One county assesses the mandatory minimum $600 and that’s it; that’s their average (monetary) sentence at felony conviction, where other counties were assessing $2,200 per felony conviction and were regularly imposing a $200 court cost and a $400 cost for the pubic defender.
There is a state statute for what’s allowable, and then the counties individually have created their own punishment culture and norms around monetary sanctions. So it’s very difficult to say what’s happening nationally with this picture.
E.G.: With this gentleman from Florida who emailed you about that huge debt, is that something he can file for bankruptcy on?
A.H.: No. You can’t declare bankruptcy on court-ordered debt. A lot of times I’ll get these emails asking, “What can I do about this?” and I say contact your local advocacy organization and see if there is some type of local policy or statute that will at least allow you to waive the interest or to request an assessment of your ability to pay, but once the debt is sentenced, it’s up to the judge to waive the sentence. It’s very difficult, once people are sentenced to this amount of money, to get out of it.
E.G.: You also wrote that these monetary sanctions are increasing in both their dollar amount and frequency in which they are applied. What is driving these increases?
A.H.: I looked at examples of state statutes nationally, and could see the increase in the late ’90s, early 2000s, in terms of the types of fines and fees, and it’s really about this era of mass incarceration. Since 1974, we’ve had a dramatic increase – 500 percent – in the number of people that are living behind bars, and local and state jurisdictions just can’t afford it anymore.
FURTHER READING: What do monetary sanctions look like in Oregon?
I think the attention in state legislature has really turned to figuring out how we can generate more revenue. Over the years, the costs of juries have increased, court costs have increased, mandatory penalty surcharges have increased to raise money for criminal justice-related expenses, but also for non-criminal justice-related expenses. We’re seeing the results of mass conviction and incarceration and the lack of revenue to support it.
E.G.: I also wanted to talk about Fuller v. Oregon, which was explored in your book. Can you tell our readers about the significance of that case?
A.H: Fuller v. Oregon basically allowed local jurisdictions to continue to assess court costs to individuals. It said that because these costs aren’t imposed until conviction, there is no conflict in charging defendants those costs. And because people will still get public defenders and have representation before the law, being charged that cost post-conviction did not interfere with that right. The problem is that it does.
I’ve seen in courts where defendants have been brought before the court for willful nonpayment and the judge will say the routine comments of “You have a right to a public defender, and you will be appointed one if you cannot afford one. Would you like to have a public defender present?” And I’ve seen someone say, “No, because I know you’re going to charge me for it.”
When people know that any type of added support through the criminal system is going to cost them, then they are going to avoid having representation in the courtroom.
E.G.: It just seems so counterintuitive to what people outside of the justice system might think: “If you can’t afford an attorney, one will be appointed to you – but you have to pay for it.” Is this constitutional?
A.H.: Yes, because nowhere in the decision did the Supreme Court say who was going to pay for that public defender. So you have a right to representation, and you get that representation, but the problem is that then you also have to pay for it if your jurisdiction is poor. If the jurisdiction that you’re prosecuted in doesn’t give adequate financial support to the public defender’s office, then that burden is going to be shifted onto the defendant to pay for it.
FURTHER READING: The prosecutor: The most powerful person in the room
E.G.: You also mentioned Oregon’s practice of transferring court debt to the Department of Revenue. Do you feel like this is a reasonable way for the courts to recoup their costs, or are there some inadvertent effects?
A.H.: I think there are a lot of inadvertent, unintended consequences with this system. One is that we need to question the extent that this is really raising money.
Are we really recouping enough money to justify having public collections units and re-incarcerating people who don’t pay? That’s an open, empirical question that I’m exploring with subsequent research.
There are a lot of problems, that I suggest from analysis in the book, that lead to the conclusion that this is unnecessary, it’s inefficient, it’s an ineffective system of punishment, and it’s unethical to have a two-tiered system of justice where poor people experience punishment and justice in a very different way than people with means.
E.G.: What would you say to someone who asks, “Why should my tax dollars go to pay for a criminal’s court costs? They did the crime; shouldn’t they pay for the cost of their prosecution and imprisonment?”
A.H.: A rational society pays for certain services for effective public safety, for educational expenses, for different types of institutions that we need to be a healthy, vibrant society.
Of course people who commit crimes should be punished. And they’re being punished, but we need to ask ourselves: Is it really creating public safety? Is it really helping people who have been punished and served their time and want to be rehabilitated? Is it really supporting them so that they don’t re-engage in illegal activity?
Rationally it makes sense: They’re causing these costs to society and to the criminal justice system; why not make them pay? But in reality, if they can’t pay, if they can’t be held accountable through their financial payments, then does that make sense? Does it help average citizens, and does it help victims? If we’re asking for them to pay court costs that we know they can never afford, are they going to stop paying their restitution to victims? Evidence suggests that they will.
When people who come into contact with the court system have mental health issues, have drug and alcohol addiction, are under-formally educated and have other types of problems, does it make sense to saddle them with financial debt after they’ve served time in jail or prison and have a felony conviction when we know they can never really pay it?
E.G.: Is there anyone you met during the course of your research whose story really illustrates just what kind of an effect these monetary sanctions can have?
A.H.: “Wilma” stands out to me because she could be any one of us. She was a woman who was in a long-term domestic violence relationship with her husband, and on the day she was arrested, she happened to be the aggressor. She happened to get a hold of a gun and shoot her husband, and she went to prison for eight years for doing so, and owed over $50,000 in legal debt. Most of it was restitution to him. She knew, though, that his hospital bills were paid, so he was essentially receiving restitution above and beyond what he had actually had to pay for his hospital bills.
All the sociological literature says that – post-conviction – what people need to be rehabilitated are healthy relationships, commitments to institutions and to employment.
She came out, she entered a job-training program, and she was making a decent wage, enough to make her minimum monthly payments.
She met a new partner and they had a child and she described it as a very healthy relationship, but he told her he would never marry her because of her legal debt. In fact, his brothers offered to buy them a house, and they could rent the house and one day be homeowners. But once one of the brothers, who was an attorney, found out that she had legal financial obligations, they said they wouldn’t do it because she would never be out of that debt. She became a financial liability to anyone. Counter to what we know people need to keep from reoffending, to restart their lives, she could never have that because of the financial debt.
Legal financial obligations create financial debt. They create constant contact with the criminal justice system, but they also impact relationships with individuals; they impact people emotionally. They know they can never live debt-free lives, no matter how hard they work.
FURTHER READING: Broken windows prosecuting: Churning low-level offenses through the criminal justice system
E.G: You were recently invited to the White House to share your expertise in this area. Were you encouraged by the dialogue that took place while you were there, and what outcomes are you hoping to see emerge from these efforts?
A.H.: I was extremely encouraged by the dialogue at the White House, at the Department of Justice, and that the administration is really interested in understanding the link between poverty and the criminal justice system.
Unfortunately it’s taken this long – over the last 40 years that we’ve had mass conviction and incarceration – to recognize that it’s poor people that are differentially impacted by the criminal justice system along with people of color, but it’s exciting that this issue is on the table, and that the DOJ is trying to recognize ways in which they can be a leader to states to say we should not incarcerate people solely because of their inability to pay.
Indigents should not be criminalized, and that’s essentially what’s happening. It’s a bit frustrating on the state level, that when the general public hears about the sentencing practice they think it’s outrageous, but we can’t drop the interest rate in Washington.
We’ve tried for the past two years to decrease the 12 percent interest to zero percent. To really prioritize victims to say we shouldn’t be collecting $100 collection fees. Instead, every dollar defendants pay should go directly to victims if they owe restitution.
One thing I like to encourage is a broader discussion about punishment. What do we, as American citizens, expect from lawbreakers? Do they deserve a second chance? Right now, we incarcerate, we penalize with financial debt, we provide community supervision, they’re stigmatized with a felony conviction, they have a host of collateral consequences, they lose the right to vote (in many states), they lose the right to federal assistance – that’s a permanent punishment. Is that what we want done in our name? Or do we think if someone does something, even if it’s a severe crime, there is a point at which they truly can be redeemed in society and welcomed back and supported?
I think that’s the conversation: Is this a second-chance nation? Do we believe in redemption in this country? And if so, then our punishment practices should fit in with those values.
emily@streetroots.org
