In 2012 a Biloxi, Mississippi, police officer pulled Anderson over for speeding. He was fined $170, or about 20 percent of his monthly income. When he couldn’t pay that amount, a city judge sentenced Anderson to 12 months of misdemeanor probation. He was ordered to pay $50 per month to the city until his fine was paid off. But that wasn’t all. Anderson’s probation would be administered by a private company called Judicial Correction Services, Incorporated (JCS). In addition to what he owed the city, he was also ordered to pay JCS a $10 set-up charge, and a $40 monthly “supervision fee.” That $40 fee was due each month for the duration of his probation, even once he had paid off his original fine. All of which means that because Anderson was too poor to pay his $170 fine, his overall debt ballooned to $580. His fine more than tripled, solely because he was too poor to pay it.
Anderson did the best he could, paying JCS about $20 per month for the first few months of his probation. But that wasn’t enough. In September 2012, Biloxi Municipal Court Judge Eugene Henry issued a warrant for Anderson’s arrest. In the last week of 2012, a Biloxi police officer came to Anderson’s home. When Anderson opened his door, the officer immediately arrested him, in front of Anderson’s girlfriend Qumotria Kennedy and her teenage son and daughter. Despite his physical condition (he can’t walk without assistance), Anderson was handcuffed and stuffed into the back of a patrol car. He was taken to the Harrison County Adult Detention Center, a sprawling facility in Gulfport lined with chain fences and coils of razor wire. It’s the largest jail in Mississippi, with 760 beds, although according to the Sheriff’s Department website, it typically exceeds capacity with an average of 800-900 inmates per day.
Anderson was told he’d be released if he could pay $220 on the spot. He didn’t have anywhere near that kind of money. So he was booked. On the first day of his incarceration, he was denied access to his heart medication. He spent six additional nights locked up — he spent the 2013 New Year alone in a jail cell —before he was released by a judge. During his week behind bars, Anderson was never told that he had the right to an attorney.
In the 1983 case Bearden v. Georgia, the U.S. Supreme Court ruled that a local government can only jail someone for not paying a fine if it can show that the defendant could have paid the fine, but willfully chose not to. The state should also consider other options for indigent defendants, such as community service or even waiving or reducing the fine. According to the American Civil Liberties Union, who is representing Anderson in a lawsuit against the town, there was never any hearing or attempt by city officials or JCS to look into Anderson’s finances to see whether he could pay what he owed, nor was he given any alternatives to payment.
According to Anderson’s lawsuit, he was most mortified to have been arrested in front of his stepson and girlfriend. “I felt ashamed because I was always preaching to him about staying out of trouble,” Anderson says in a statement released by his attorneys. “And here is this police officer who knocks on my door, handcuffs me and arrests me.”
After last year’s protests in Ferguson, Missouri, several media outlets (including a report here at The Watch), social justice groups, and ultimately the Justice Department issued reports about how the municipal courts in St. Louis county have been ruthlessly extracting money from the area’s poorest citizens. Since then, similar stories and reports have documented the same phenomenon in cities all over the country. The cruel irony here is that the poorer the county or municipality, the less revenue it typically generates from other sources like sales or property taxes. This means that poorer counties are more reliant on fines and fees produced by municipal courts, which inevitably come from the poor residents of those areas. Those governments then put pressure on police departments to generate revenue by targeting residents for traffic offenses, jaywalking, and other misdemeanors and petty crimes.
Biloxi is a good example. From 2009 to 2013, the percentage of Biloxi residents living in poverty doubled, from 13.3 percent to 27.5. According to the ACLU, the portion of the city’s revenue coming from fines and fees increased by 26% over that same period. The city got poorer. That meant less revenue from other sources. So the city sought more revenue by imposing more fines and fees on its citizens. Which of course only makes them poorer.
This scenario also creates an incredibly antagonistic relationship between the police and the communities they serve. It also encourages profiling of the poor — an older, less well-maintained car is probably more likely to be driven by someone with a suspended license, or who doesn’t have insurance. Arrest warrants, driver’s license suspensions, and additional fines for nonpayment compound and perpetuate the cycle of misery.
Adding private probation companies to the equation only adds to the despair. Ideally, probation is more than just an alternative to incarceration; it’s aim should be to transition the offender out of the criminal justice system into becoming a productive citizen again. Private probation companies have a strong incentive to keep people on probation for as long as possible. In Biloxi, as in most places that use these companies, the city itself doesn’t pay the probation company a dime. All of the companies’ revenue comes from the probationers themselves. This means that every person who successfully completes probation is a lost source of revenue.
But even given this broken system, what’s happening in Biloxi seems to be particularly cruel, and likely in violation of the law. According to the ACLU, the Biloxi Municipal Court generated $1.27 million in revenue in 2013, or about $28 per resident. But that figure doesn’t include the fees paid to the probation companies, so it underestimates the impact this system has on the city’s poor. During the nine-month period between September 2014 and June 2015, the court issued 2,681 arrest warrants against 1,551 people. At $40 a month (plus a $10 fee) per person on parole, that’s hundreds of thousands of dollars a year that Biloxi’s poorest are expected to pay over to these probation companies. And that’s just the amount from those whose failure to pay resulted in an arrest warrant.
Anderson and Kennedy met in 2007 at the Best Western. She had just moved to the Mississippi coast from Los Angeles in order to care for her father, who had fallen ill. She had found a part-time cleaning rooms at the motel. They’ve been together ever since. In a phone interview, Kennedy says she was scared and angry when the police came to arrest boyfriend. “I had heard about it happening to other people,” she says, “But we didn’t think it could happen over a traffic ticket. We just didn’t know why. I wanted to know why. He wanted to know why. And they wouldn’t tell us.”
But the same thing would later happen to her. While in Los Angeles, Kennedy’s license was suspended after a DUI. Since moving to Mississippi, she had been trying to get her license reinstated, but the city of Los Angeles told her that in order to that, she’d have to come back to California. She just didn’t have the money for that.
“It’s a labryinth process,” says Nusrat Jahan Choudhury, an attorney with the ACLU’s Racial Justice Program who is representing Kennedy and Anderson in their lawsuit. “We’re trying to help her get in reinstated, but they make it extremely difficult.”
Though Kennedy’s suspension was directly related to a driving-related offense, the suspension of driver licenses is becoming an increasingly common form of punishment, for everything from truancy to nonpayment of child support. In St. Louis County, for example, there are 26 different offenses that can cause the suspension of a driver’s license, only a small fraction of which are related to driving. As recent reports from NPR, the New York Times, and a social justice coalition in California have documented, the inability to drive, or at least to drive legally, can have a crippling effect on the poor.
Kennedy is a good example. She lives more than a mile from the nearest bus stop. “The bus only comes every hour and thirty minutes,” she says. “I’ve had more than one job at a time. I have two teens. They have braces, so I have to take them to the dentist. I have to go to the laundromat. It makes it very difficult to live your life.”
Like many in her predicament, Kennedy says she feels that she sometimes has no choice but to drive, in spite of her suspended license. In May 2013 she was pulled over in Biloxi for running a stop sign. Once pulled over, she was issued additional fines for driving with a suspended license and driving without insurance. In total, she faced $649 in fines. Like Anderson, Kennedy couldn’t pay her fines. Like Anderson, she was brought before Judge Henry. And like Anderson, she was sentenced to 12 months of probation, administered by JCS, along with fines and fees that totaled vastly more than the original fine she couldn’t afford to pay. When she couldn’t keep up with those payments, a warrant was issued for her arrest.
In July of this year, Kennedy was a passenger in a car that was pulled over by a Biloxi police officer. The alleged offense was running a stop sign, although Kennedy and the driver of the car insist there was no stop sign. (A Google Maps photo of the intersection in question shows a two-way stop, though it isn’t clear which road Kennedy and the driver were on when pulled over.) In any case, although she was only a passenger the police officer ran Kennedy’s name and discovered her outstanding arrest warrant. He put her in handcuffs, and took her to jail. When she was searched at the jail, the police found a single marijuana cigarette in her purse.
Kennedy was told she’d need to pay $1,000 on the spot to avoid jail time. That was more than 10 percent of her annual income. She was booked and jailed for five nights. “The conditions were terrible,” she says. “It was cold and nasty. The toilet didn’t work. The cell smelled like urine. There was no hot water. I was cold all the time. It was just miserable.”
Like Anderson, Kennedy was never explicitly told that she had the right to an attorney. Instead, she says, a probation officer asked her to sign a release form waiving her right to counsel. “I thought I was signing a probation form,” she says.
After five days, Kennedy was taken before Biloxi city judge Jude Steele. As with Anderson, the ACLU says the city made no attempt to assess Kennedy’s finances to see if she was even capable of paying her fines. When she said she couldn’t pay, she was held in contempt and fined $1,000. She was issued an additional $350 fine for the joint in her purse, minus $150 for the time she spent in jail. Steele then sentenced Kennedy to 12 months of probation, to be administered by a company called Court Programs, Inc.
At the time of her arrest, Kennedy had a part-time job cleaning local baseball fields. When she didn’t show up for work, and couldn’t call to explain why, she was fired. “He said I’d missed too many days,” she says of her boss. “I tried to tell him what happened, but he said he couldn’t tolerate it.”
After fines, court costs, and the fee to the probation company, Kennedy must now pay $255 per month to satisfy the terms of her probation. That would be impossible to pay even when she was working more than one job. Currently, she says she’s actively looking for work, a process that’s hampered by her suspended license, but she currently only takes in about $200 per month. She owes more money each month than she takes in to the city and the probation company alone. And her inability to drive makes it nearly impossible for her to find work. Unless her lawsuit succeeds, she’s almost certainly looking at a return trip to jail.
The point here is not that Kennedy is a perfect citizen. She’s made mistakes, as we all do. The difference is that where a wealthier person can hire a good attorney to get a DUI charge thrown out or reduced, or at the very least find ways to accommodate the punishment, for Kennedy it was a mistake that followed her across the country and has resulted in escalating fines, nights in a cell, and lingering dread, fear, and hopelessness that hangs over her every time she leaves her house. According to the ACLU, between August of 2014 and March of 2015, more than 400 people in Biloxi alone were jailed on contempt warrants for failure to pay fines owed to the city or a private probation company.
“It’s a Catch-22,” says Choudhury. “She lost her job because she was jailed for not paying her fines. Which of course only makes it more difficult for her to pay her fines. She’s trying hard to find work, but that’s hampered by her inability to legally drive.”
It basically amounts to a tax on poverty. The ACLU has recently filed suits challenging similar systems all over the country, including in Georgia, Washington State, Ohio, and Michigan. Earlier this month, an activist group filed a similar lawsuit against a private probation company in Tennessee.
These lawsuits all challenge the constitutionality of jailing people who are too poor to pay fines, as well as other typical actions like failing to provide them with an attorney, failing to investigate whether they were capable of paying, and so on. But it ought to be basic common sense that when you rely on fees and fines for a substantial portion of city revenue, that practice will disproportionately affect the poor, who will not only be more likely to be targeted, but will be least likely to afford an attorney to fight the charges, and for whom the resulting fines and restrictions will have a vastly disproportionate impact. It should be intuitive that if you hire a private probation company on a contract that makes probationers the sole source of the company’s revenue, that company will have a strong incentive to treat probationers more as cash machines than as human beings. And the slightest bit of empathy should make these local governments consider the utterly hopeless situation they’ve created for their community’s poorest residents.
Perhaps the courts will end these modern-day prisons. But it shouldn’t come to that. If they weren’t already, these lawsuits serve to make public officials in these places aware of the fact that these policies are devastating the most vulnerable people in their communities. Whether or not the policies themselves are constitutional doesn’t change any of that. Basic humanity ought to compel them to address the problem way before these lawsuits ever get in front of a jury.