Michael Brown’s killing exposed a system for profiting from fines for low-level infractions that targets African-Americans.
This week on CounterSpin: One of the legacies of Michael Brown’s killing, two years ago this week, was the exposure of police departments like Ferguson, Missouri’s, that have a system for profiting from fines and fees for low-level infractions that targets African-Americans disproportionately. That’s only one aspect of the interrelationship between economics, race and criminal justice our guest says calls out for scrutiny. Donna Murch is associate professor of history at Rutgers and author of Living for the City: Migration, Education and the Rise of the Black Panther Party in Oakland, California. We’ll talk about her new essay in the Boston Review, “Paying for Punishment: The New Debtors Prison.”
A Portion of the Article from the Boston Review
American criminal justice doesn’t only cost money. It also makes money.
But like so many American institutions, debt forgiveness—and the social mobility it enabled—applied almost exclusively to native-born white men. Nonwhite populations faced land divestment, chattel slavery, and disproportionate incarceration, followed by a subsequent regime of debt peonage and forced labor.Prisons throughout the country—including in the antebellum urban North and parts of the Midwest—used convict labor, an extractive system that evolved into an even more brutal racial form in the post-emancipation South.
Traveling through the Black Belt in the 1890s, W. E. B. Du Bois described a fertile, if broken, landscape plagued by the upward redistribution of wealth.“A pall of debt hangs over the beautiful land,” he wrote in The Souls of Black Folk. “The merchants are in debt to the wholesalers, the planters are in debt to the merchants, the tenants owe the planters, and the laborers bow and bend beneath the burden of it all.”The Thirteenth Amendment, which abolished slavery and involuntary servitude “except as a punishment for crime” enabled the widespread use of debt peonage and convict leasing. This resulted in the deaths of tens of thousands of African Americans between the 1870s and the 1940s, exceeding by a significant magnitude the number who died from lynching. At its worst, more than one in four leased convicts died in under two years from a mix of overwork, malnutrition, and unsafe working conditions.
State, county, and municipal government played an essential role in the development of these coercive post-emancipation labor practices, which used debt as the pretext for de facto re-enslavement. Criminalization of vagrancy, loitering, quitting a job, petty theft, and even talking loudly in public could result in incarceration for blacks, accompanied by exorbitant fines and court costs. White employers paid off these debts and in return forced victims to work for years without pay under horrendous conditions. African Americans had no legal recourse to contest such practices, and employers took advantage by imposing additional debt for land use, seed, livestock, food, and other staples. The result was a newly freed population ensnared in an endless cycle of debt, forced labor, and worker abuse that recreated, in the words of Pulitzer Prize–winning author Douglas Blackmon, “slavery by another name.”
This extractive system was central to the southern economy under “Redemption” and Jim Crow. Indeed,debt peonage, chain gangs, and convict leasing enabled the economic resurrection of the region and continued well into the Progressive Era. The city of Atlanta, the crown jewel of the industrial New South, was rebuilt with red brick fashioned by black convict labor. Public works—roads, aqueducts, bridges—and private residences benefited from this forced labor system enabled by criminalization of large portions of the African American community, including women and children. James W. English, a primary shareholder in the Chattahoochee Brick Company who served as a future police chief and mayor of Atlanta, leased more than a thousand convicts to work in his Georgia brickyards. Similarly many of the Gilded Age industries of the South—including not only construction but also agriculture and mining—used convict labor to amass wealth.
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Too often the South is understood as exceptional, but the process of racial divestment was national in scope. Financial predation extended beyond the geographical reach of legal segregation and found a new vehicle in racially discriminatory practices such as blockbusting (in which realtors overcharged black renters and home buyers), redlining, and subprime lending.
It also persisted in the criminal justice system in ways that have been made visible by mass protests in Ferguson in response to the August 2014 police shooting of Michael Brown. Sustained activism prompted the federal government and journalists to investigate the town and its woes. Further inquiry revealed interlocking webs of public and private predation that relied on courts and police to garner revenue from black residents through excessive ticketing as well as the levying of court fees and fines. Today the small municipality north of St. Louis has come to exemplify the dangers of racial profiteering. But while it is extreme, Ferguson is far from an isolated case; many jurisdictions extract money through law enforcement and the court system.
Contemporary extractive methods rely on two interrelated sources of debt: private debt and criminal justice debt, also known as legal financial obligations (LFOs). The former, which pays out to private companies, has a way of generating the latter, which pays out to both private companies and public institutions.
Private debt is familiar to most of us. It can easily and quickly be incurred from auto loans, mortgages, extortionary payday loans (frequently the creditors of last resort for low-income people), credit card charges, and medical bills.
Private lenders or, more commonly, debt collection companies can in some cases bypass bankruptcy proceedings and take non-paying debtors directly to civil court. A recent report from ProPublica shows just how common civil suits for debt collection are. For instance, 66,000 such suits were brought in Newark alone between the years of 2008 and 2012. Defendants in such suits are overwhelmingly African American. In St. Louis, Chicago, and Newark, majority-black neighborhoods suffer court judgments for debt collection at twice the rate of majority-white neighborhoods. In Jennings, Missouri, a 90-percent black city next door to Ferguson, there was more than one court judgment for every four residents. The effect is far-reaching; five of the eight city council members of Jennings have been sued over debt.
Legal judgments were not always the norm. Zealous private collectors began popularizing the use of municipal and county courts in the 1990s, and the practice has since grown. Collection agencies aggressively purchase consumer, medical, and student debt for pennies on the dollar and sue for much smaller amounts than banks do. Were the debt to remain in the hands of major banks dealing in billions of dollars worth of transactions every day, small-time debtors might be too unimportant to attract legal attention. But collection agencies specialize in suing large numbers of people for relatively little money, making escape that much more difficult. That people of color are vastly more likely to face court proceedings than are white people with the same income reflects both racial discrimination and the stark wealth gap. Black families, on average, have one-thirteenth the wealth of white families and Latinos have roughly one-tenth.
This wealth gap is a result of the long and continuous history of legalized dispossession via slavery, Jim Crow, forced labor, and myriad racial disparities in housing, education, employment, lending, and incarceration. Consequently many African Americans have been prevented from building the assets that might insulate them from life’s emergencies, resulting in debt and legal hazard that itself generates further opportunities for extraction.
One such opportunity arises when defendants in civil suits do not show up for court dates. In such cases, they can be charged with contempt, failure to appear in court, or disobeying a court order, and judges can issue arrest warrants accompanied by steep fines. According to the Marshall Project, many private debtors are forced to “pay or stay,” trapped in jail until they post bond or pay their creditors. Upon arrest they, like all criminal defendants, begin to accrue a second—arguably more calamitous—debt from the justice system itself.
Criminal justice debt is an unwieldy set of financial obligations consisting of fines, fees, and restitution payments. Fines are imposed during sentencing for infractions such as speeding. Fees comprise a broad and capacious category covering charges levied by public and private entities. Costs are racked up at every stage of the process: jail booking fees and per diems for pretrial detention, bail investigation fees, costs of drug and DNA testing, court costs and felony surcharges, public defender application costs and recoupment fees (issued directly to the state, not to the lawyers themselves), and the list goes on. Then there is restitution, which mandates cash payments to victims for personal and property damage.
Forty-one states also charge offenders for the cost of imprisonment itself, and forty-four states charge for costs of probation and parole. To make matters worse, the overwhelming majority of the states with the largest prison populations charge “poverty penalties” by imposing additional costs on those unable to pay off criminal justice debt immediately.
For the low income populations who make up 80 percent of criminal defendants (the percentage incapable of paying for their own defense), this additional debt becomes a further obstacle to housing and employment, which often require credit checks. Criminal justice debt also acts as a de facto indicator of incarceration history, which nullifies the victories of activists across the country who have successfully “banned the box” requiring job applicants to list felony convictions.
Meanwhile the large revenue stream created by criminal justice debt creates perverse financial incentives for state and local governments to criminalize their residents. Ferguson demonstrates this dynamic in profound ways. Public safety and court fines comprised 20 percent ($2.5 million) of the municipality’s total operating revenue for 2013, an 80 percent increase from 2011. In 2013 alone, the city issued more than 9,000 warrants for minor violations such as parking violations. From 2011 to 2013, 95 percent of people cited in Ferguson for the essentially meaningless charges of “failure to comply” and “manner of walking in the roadway” were African American. It is under precisely this circumstance that police officer Darren Wilson fatally shot Michael Brown.
While Ferguson is notorious for public predation on black residents, it is not alone. In 2013 two smaller jurisdictions in St. Louis County, St. Ann and St. John, received an even larger portion of their revenue from fines and forfeiture—39.6 and 29.4 percent respectively. In municipalities throughout the country, fines, “user fees,” and other punitive charges supply a growing source of extractive income in a time of fiscal austerity. Tellingly it is not uncommon for these charges to far exceed the costs of restitution for crime victims themselves.
The private sector is also developing new ways to mine revenue from criminalized people, beyond the well-known method of for-profit prisons. Private companies now perform probation, parole, drug-rehabilitation, and reentry services on contract. One of the most egregious examples is the private electronic-monitoring industry, which provides technology used for pretrial tracking of defendants, for house-arrest sentences of nonviolent offenders, and as a condition of probation.
While this technology has been around since the early 1980s, the offender-funded business model originated roughly a decade later. Like SWAT teams and anti-gang injunctions, the earliest precedents of this for-profit model stem from Los Angeles. After the L.A. rebellion in 1992—in which law enforcement arrested more than eleven thousand people, nearly three times the total arrested in the 1965 Watts rebellion—the world’s largest urban jail system was straining at the seams. Sentinel, a private company, recognized an opportunity. The company proposed that the L.A. probation department require reentering offenders to wear its monitoring system—and pay for it. Sentinel’s “offender-funded justice” model promised savings for taxpayers and revenues for its shareholders. The city signed up and the contemporary era of privatized electronic monitoring began.
Forty-one states charge offenders for the cost of their imprisonment.
People compelled to use the system may be charged anywhere from $9.25 to $49 per day, with monthly costs ranging between $300 and $1,519. They also must pay substantial set-up costs. Those who cannot pay are returned to custody, costing the monitoring companies nothing. The value of companies that provide electronic monitoring has soared as profits have rolled in. In 2011 the private-prison giant GEO Group purchased Behavioral Interventions, the country’s largest electronic provider, for $415 million. It is no wonder the for-profit model of electronic monitoring has been rapidly expanding. Indeed, the bipartisan consensus on the need for decarceration has only strengthened the position of the electronic-monitoring industry.
By devolving the cost of punishment onto criminalized people themselves, the offender-funded model helps turn a profit for private firms while providing cost-savings for the municipalities that contract them. The consequences for individuals can be devastating, as in the case of Antonio Green, a disabled South Carolina resident who was arrested in 2014 for driving without a license. He initially took the option of electronic monitoring rather than jail. But after watching his financial and personal life unravel under the weight of nearly $2,500 in fees over the course of a year, Green found himself with no option but to go to jail. “I gave up,” he told a reporter for International Business Times. “I was falling apart. It felt like being on a chain gang. Those bills were getting out of hand. I said, ‘They’re just going to have to lock me up.’”
And so the cycle continues. Poor people face debt, jail for minor infractions, and further debt to pay for their punishment. The well of poverty grows deeper as extractive states, municipalities, and private companies seize the income of vulnerable populations.
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