Time to end our modern-day debtors’ prisons

From Colonial times until the mid-1800s, it was common practice in the United States to jail people who failed or were unable to pay their debts, a practice that many, including the Supreme Court, have since recognized as a violation of people’s rights to due process and equal protection.

But while “debtors’ prisons” may sound like a relic of a bygone era, today the practice has made a disturbing return in the form of court costs and “legal financial obligations” that many people caught in the criminal justice system are unable to pay, creating insurmountable financial burdens for already-struggling families.

Across the United States, including here in North Carolina, people convicted of even minor criminal charges, such as loitering, littering and unpaid traffic tickets, face an array of fees, court costs and other forms of criminal justice debt that can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, extra fines and interest for late payment – and ultimately incarceration.

These modern day debtors’ prisons enact devastating costs on vulnerable people who are unable to pay their fees, as well as the criminal justice system as a whole, which has had to create an extensive infrastructure to turn court and correctional officials into collection agents, diverting resources from their intended purpose.

In North Carolina, these court fees have been steadily rising – far outpacing the rate of inflation – over the past two decades. All defendants, regardless of their income level, are required to pay general court fees, which are currently $173 in district court and $198 in superior court. If these fees continue to increase at the same rate, they will exceed $500 by the year 2025. Such general fees are only a fraction of the over 100 different “legal financial obligations” or “LFOs” that can be levied on criminal defendants in North Carolina, which include a $60 appointment of counsel fee, a $250 community service fee and a $25 criminal record check fee.

People of color and those with low incomes are particularly harmed by these practices. Those who are already living at the margins of society frequently incur criminal-justice debt as a result of minor, nonviolent offenses that in many instances stem from the criminalization of poverty. There is also evidence that implicit racial bias has led to disproportionate fees being imposed on people of color by judges and court administrators.

In 1970, the U.S. Supreme Court concluded that extending a prison term for an inability to pay criminal-justice debt violated the 14th Amendment’s Equal Protection Clause. Yet jurisdictions continue to ignore or skirt the edges of these requirements and consider almost every failure to pay willful. Some courts even impose a “fines or time” alternative sentence that forces defendants to “choose” between jail and immediate payment in full.

The proliferation of court fees and the costs incurred by the state to collect them has prompted some judges, politicians and lawmakers across the U.S. to question whether the practice has gone too far.

For instance, New Jersey initiated a program in 2013 to encourage thousands of people who owe fines to appear at court sessions where judges reviewed files and ordered fee reductions. More than 4,500 people turned themselves in, and hundreds with unpaid court fees and fines were able to gain significant reductions. Other states have implemented similar programs.

In North Carolina, judges can waive many fees, and other criminal statutes allow for lowering or modifying fees prior to payment in full. This does not mean, however, that these fees are regularly waived, and the General Assembly has mandated that many fees, such as the application fee for a public defender, not be waivable.

North Carolina’s courts and lawmakers must do more to eliminate this two-tiered system of justice and bring an end to modern day debtors’ prisons.

Tamar R. Birckhead is a law professor at UNC-Chapel Hill.