Enforcing Poverty

Though debtors’ prisons are by law unconstitutional, recent decades have seen a marked rise in the number of individuals who are nonetheless incarcerated for failing to pay either public or private debts. The 1980s and 1990s marked a significant increase in the number of state and county justice systems that imposed fees and fines on individuals who interacted with the justice system. The problem has been exacerbated in the 21st century as “offender-funded justice”—a system where the accused offender must pay the cost of his or her own prosecution, incarceration, and rehabilitation—has been popularized.

We are grateful for the work devoted to this report by attorneys and staff from DLA Piper and Latham & Watkins, with whom we conducted a multi-year investigation into Oklahoma’s use and enforcement of criminal justice fines and fees, and the resulting effect on Oklahoma’s poorest citizens. The investigation included:

  • Attending local court proceedings, including debt collection proceedings and first appearances;
  • Interviewing individuals who have been jailed or subjected to other punishments, including driver’s license suspensions, as the result of inability to pay court fees and fines;
  • Gathering court files and other documents via public records requests;
  • Interviewing legal and other professionals with knowledge of the court systems in Oklahoma County, Oklaho- ma City, Tulsa County, the City of Tulsa, Washington County, Osage County, and Waggoner County, includ- ing public defenders, private criminal defense attorneys, reentry professionals who work with individuals after release from prison or jail, and criminal justice reform advocates; and
  • Interviewing court and other government officials with knowledge of and responsibility for court collection practices.

We are indebted to individuals, organizations, and institutions who participated in interviews and provided data that informed the development of this Report: David McKenzie, Kimberly Miller, Brady Henderson, Bob Ravitz, Francie Ekwerekwu, Kris Steel, Ed Wunch, Pat Vicklund, Gwen Fields Black, Amy Santee, Mimi Tarrasch, Rob Nigh, Anna Carpenter, Sara Cherry, Teri Woodland, Lindsay Coat, Robin Wertz, Kristin Harlin, Tony Altizer, Mary Beth Wil- liams, Exodus House clients, ReMerge clients, The Education and Employment Ministry (TEEM) clients, Women in Recovery clients, Oklahoma Indian Legal Services (OILS), Oklahoma District Attorney’s Council, Oklahoma County Public Defender’s Office, Ryan Gentzler, and Oklahoma Policy Institute.

Oklahoma law purports to build upon federal Constitutional protections by providing that courts should make an ability to pay determination when fines, fees, and costs are initially assessed. Oklahoma Court of Criminal Appeals Rule 8.1 (“Rule 8.1”) expressly requires that: “When the Judgment and Sentence of a court, either in whole or in part, imposes a fine and/or costs upon a defendant, a judicial hearing shall be conducted and judicial determination made as to the defendant’s ability to immediately satisfy the fine and costs.” Additionally, Oklahoma Criminal Court of Appeals Rule 8.5 (“Rule 8.5”) provides that “[i]n the event the defendant, because of physical disability or poverty, is unable to pay fine and/or costs either immediately or in installment payments, he/she must be relieved of the fine and/or costs[.]”

However, our investigation established three significant findings:

  • Oklahoma courts routinely incarcerate people for failing to pay their court fines, fees, and costs, without ever determining that their failure to pay was willful and not the result of their poverty;
  • Because courts routinely fail to conduct meaningful ability to pay inquiries, the poorest Oklahomans inevitably fall behind on their payments and fall victim to an endless cycle of bench warrants, arrests, driver’s license sus- pensions, and incarceration, thus exacerbating Oklahoma’s mass incarceration problem; and
  • Oklahoma’s fee statute, Title 28, disincentivizes courts from extending existing statutory protections to poor and disabled people, thereby contributing to high rates of incarceration within the

Further, our investigation revealed that in Oklahoma, as in states all across this country, the community corrections system has become a key driv- er of mass incarceration. Thousands of Oklahomans, many convicted of non-violent offenses, face hefty fines and fees assessed by county, state or private probation providers as part of their conditions of supervision. These costs, including community service, mandatory drug and alcohol tests, electronic monitoring and other miscellaneous charges, quickly add up to hundreds and thousands of dollars that probationers simply cannot afford to pay. As a result, they remain perpetually subject to incarceration.

Part 1 of this Report provides an overview of Oklahoma’s system for en- forcing criminal justice fines and fees, and argues that criminal justice user fees are effectively a tax on Oklahoma’s poor. Part 2 of this Report discuss- es that despite laws designed to protect the poor and disabled from harms associated with fines and fees, the Oklahoma courts are failing to enforce these protections. In Part 3 the Report explores how Oklahoma’s enforce- ment of fines and fees converts community corrections into a revolving door of incarceration for Oklahoma’s probationers. Finally, in Part 4, the Report discusses possible policy solutions for reversing the dangers posed by fines and fees for Oklahoma’s poorest residents