U.S. Attorney General Loretta Lynch asked what was the price of justice during a White House Convening on Incarceration and Poverty on Thursday.
Right now, more than 2.2 million people are incarcerated in the U.S., a 61 percent increase since 1990, according to a new report released by the Council of Economic Advisers that found that it is often the poorest rather than the most dangerous who are locked up.
The link between incarceration and poverty was the subject of a White House summit in which academic scholars, government officials and advocates for criminal-justice reform met to discuss the impact of monetary penalties such as fines, fees and bail on the poor and people of color. The daylong discussion included remarks by Michael B. Jordan, who is currently starring in the film Creed and who portrayed Oscar Grant in the movie Fruitvale Station; and David Simon, creator of the popular HBO show The Wire, which shed light on Baltimore’s criminal-justice system.
The convening was the latest effort by the administration to reform the criminal-justice system, according to White House Senior Adviser Valerie Jarrett. The goal, she noted, was to “highlight practices that aren’t helping society but are hurting society.”
“There is no way we’re going to have an equal and just society unless we tackle criminal-justice reform,” she said.
Part of that reform, of course, involves examining the disparities that exist within the system.
Cynthia Jones, a professor at American University’s Washington College of Law, noted at the forum that black and brown people are overrepresented in the criminal-justice system and in pretrial detention because of money.
“If you live in a place where money is used to determine whether someone who has been arrested has been detained or released, there are racial and ethnic disparities,” said Jones. “When you use money, it has a disparate impact on the poor.”
The Council of Economic Advisers report, titled “Fines, Fees and Bail: Payments in the Criminal Justice System That Disproportionately Impact the Poor,” found that monetary penalties for infractions, misdemeanors or felonies place “large burdens on poor offenders who are unable to pay criminal justice debts.”
Though the essential promise of our criminal-justice system is equal justice for all, Lynch said, “It has become painfully clear that an individual’s access to justice is predicated on their ability to literally pay for it.”
The report found that some states and local jurisdictions are charging offenders for things such as a public defender, court appearances, room and board if jailed, parole or probation services, court-required community service and electronic monitoring. Some governments charge fees for making late payments, setting up a payment plan, failing to pay a fine or processing.
If offenders aren’t able to pay these fees, they remain in jail and are often charged additional fees, racking up even more debt. In fact, the report noted, between 1996 and 2014, the number of nonconvicted prisoners in jail grew by 59 percent.
“What we are seeing in this country amounts to nothing less than the criminalization of poverty,” said Lynch. “People are behind bars only because they are poor. Too many of our citizens are simply in jail because they don’t have the money to get out.”
Grover Norquist, founder of Americans for Tax Reform, said that the penalty structure has turned police into tax collectors. Indeed. A number of state and local governments have used fines and fees to raise revenue during a budget shortfall. For example, the Justice Department’s investigation into the Ferguson, Mo., Police Department found that the city’s municipal court was “not a neutral arbiter of the law” but used fines and fees to “advance the city’s financial interest.” Ferguson actually set revenue targets for criminal-justice fines of over $3 million, which covered more than 20 percent of the city’s operating budget.
“We wonder why police don’t have a good relationship with the community, why people don’t see them as allies or friends,” said Norquist.
Jones suggested that going back to the original intent of bail as a mechanism for release, instead of a mechanism for detention, could help address some of the racial and ethnic disparities in the criminal-justice system.
“Instead of making bail decisions based upon resources, bail should be tethered to the notion that an individual is a flight risk or a danger to the community,” said Jones.
But Jones cautioned that this may not solve the entire problem, either, because there are rogue officials who determine bail based on how someone looks. One way to address bail reform is the creation of pretrial services agencies, said Jones. Another alternative is conditional releases, in which arrestees may call in each week or submit to drug testing.
Lynch noted the shortcomings of current public policy and said that the actions of some jurisdictions have contributed to the “fundamental erosion in faith in our government.”
“We outlawed debtor’s prison. We cannot cloak it in fees and fines,” said Lynch. “We have the opportunity to make headway. Now is the time, and we have to seize this moment.”
Lottie L. Joiner is a Washington, D.C.-based freelance writer.