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Too Poor To Pay

Prison population rates, of which the United States has the highest in the world, are often cited as a defining feature of mass incarceration. Incarceration rates in local jails, however, are a lesser known but significant catalyst for mass incarceration. On any given day, thousands are detained in local jails. Some are waiting to be transferred to serve longer sentences in prison, many are being held in pretrial detention, but most will be released after relatively short periods of time with criminal records and court-imposed debt that will tether them to the system for many years.

The U.S. Commission on Civil Rights has observed that people of color, the poor, and people with disabilities— who suffer poverty at twice the rate of persons without disabilities—are disproportionately impacted by inability to pay court-imposed costs, fines and fees associated with misdemeanors and low-level offenses. In Arkansas, thousands have been jailed, often repeatedly, for weeks or even months at a time, simply because they are poor and cannot afford to pay court costs, fines and fees. They face numerous collateral consequences in addition to loss of freedom, including loss of employment, homelessness, and some have lost custody of their children when they were unable to pay fines and fees established by the state legislature to offset the growing costs of maintaining Arkansas’ massive criminal justice system. In addition to arrest and incarceration for nonpayment of fines and fees, thousands of Arkansans have had their driver’s licenses suspended, even though the underlying offenses had nothing to do with driving. This consequence is particularly devastating in a mostly rural state like Arkansas, with limited access to public transportation. The routine suspension of driver’s licenses for nonpayment of fines and fees leaves many residents caught between the proverbial rock and a hard place; they find themselves either without transportation  to work, school, medical appointments, and other crucial destinations, or they make the difficult choice to drive without a valid license and face additional charges and fines they cannot afford to pay.

With major support from Arnold Ventures1, the Lawyers’ Committee for Civil Rights Under Law has been investigating the structures that support the growth of modern-day debtors’ prisons in Arkansas, and working to help lay the groundwork for dismantling those structures across the state. Our efforts have been aided by volunteers and pro bono resources that are the lifeblood of the Lawyers’ Committee, which was established in 1963 to generate the assistance of private lawyers in advancing the political promise of civil rights, the economic promise of social rights, and thus, equal justice under law. We are grateful for the work devoted to this report by attorneys and staff from Venable LLP and Ropes & Gray LLP; economists from The Brattle Group; the students and staff of Harvard University’s Criminal Justice Policy Project, the Bowen School of Law at the University of Arkansas-Little Rock, and the University of Arkansas School of Law; and volunteers from decARcerate Arkansas.During our investigation, we interviewed 205 individuals who were charged and/or incarcerated as the result of their inability to pay fines and fees. We also performed court-watching in eight counties, sent nearly 300 requests pur-suant to Arkansas’ Public Records Act, and interviewed judges, government officials, and representatives from multiple Arkansas-based social services organizations. These are our major findings:

  • The Arkansas Fines Collection Law requires consideration of an individual’s ability to pay prior to incarceration for nonpayment of fines and fees, but it does not enumerate types of information to be considered by judges when making an ability to pay
  • Many judges proceed directly to the penalties prescribed by the Arkansas Fines Law, without first con- ducting the ability to pay determination required by the Law, or after conducting only cursory inquiries about things irrelevant to an ability to pay determination, such as whether defendants possess smart phones or have
  • When individuals are unable to pay fines and fees, the Arkansas Fines Collection Law permits courts to order additional time for payment, reduce the amount of each installment, or revoke the fine or unpaid portion in whole or in part. Judges are not effectively utilizing these options
  • Missed payments are a common occurrence in Arkansas, where nineteen percent of the population lives in poverty, and African Americans and Hispanics are twice as likely to suffer Missed payments often result in “process-based” charges, like Failure to Pay, Failure to Appear, and Contempt, that result in additional fines and penalties.
  • Poor record keeping in Arkansas courts exacerbates the challenges faced by indigent defendants. De- fendants often have no way to track the total debt owed or ensure their payments are properly applied to their outstanding debt.
  • Prolific use of arrest warrants and driver’s license sus- pensions as methods of enforcing payment of fines and fees traps poor Arkansans in a vicious cycle of poverty and incarceration.

This report intends to present a broad view of the problem of indigent incarceration in the State of Arkansas and outline the clear conclusion of our investigation: Many judges proceed directly to the punishments available through the Arkansas Fines Collection Law without first conducting the ability to pay determination mandated by Arkansas state law and federal law. Thousands have been incarcerated for nonpayment of fines and fees without requiring the State to meet its burden under the Fines Collection Law; proving that an individual’s nonpay- ment is the result of a purposeful refusal to obey a sentence or fail- ure to make a good faith effort to obtain the funds for payment. 

Defendants are routinely sent to jail without any meaningful consideration of their ability to pay. Sometimes hearings last less than two minutes, and defendants regularly face incarceration without a lawyer to defend them or a court reporter to record the proceedings. In the absence of basic procedural safeguards, poor Arkansans who are not able to pay the cost of a traffic ticket or other imposed fine are often charged with new process-related offenses such as Failure to Pay, Failure to Appear, Failure to Comply, or Contempt of Court. More charges lead to more fines and the cycle becomes endless.

Though many jurisdictions have embraced the incarceration of people who owe fines and fees as a method of “forc-ing” payment and thereby generating revenue for municipal budgets, ironically, the cost of incarcerating thousands of Arkansans likely outpaces courts’ ability to collect. Moreover, the downstream effect—the incarceration of individuals for indigency—has a disproportionate effect on communities of color and the poor. In the end, poverty is criminal-ized, mass incarceration expands, and economic inequality becomes more entrenched across the state.

This report suggests a road map for those seeking to conduct effective policy advocacy, community organizing, and litigation to bring an end the harmful and unlawful jailing of individuals due to their poverty. PART I examines the problem of indigent incarceration from the historical origin of debtor’s prisons through the growth of indigent incar- ceration in the State of Arkansas. PART II considers the negative consequences flowing from Arkansas’ current fines and fees enforcement practices. PART III explores progress toward ending indigent incarceration across the United States, and suggests a path forward for Arkansas.

To catalyze reform efforts, the report also presents RECOMMENDATIONS concerning simple remedial mea- sures that should be implemented immediately to ensure the enforcement of fines & fees in Arkansas in a manner consistent with the due process and equal protection guarantees of the Fourteenth Amendment to the United States Constitution:

  • End the practices of issuing arrest warrants, incarcerating (including through probation revoca- tion), and suspending the driver’s licenses of individuals for failing to pay fines and fees without affording Defendants notice that their ability to pay is a critical issue and providing them the opportunity to be heard during a proceeding where the court conducts an individualized “ability to pay” inquiry.
  • Adopt judicial “bench cards” or similar resources detailing procedures for determining a defen- dant’s “ability to pay” in a manner consistent with the Arkansas Fines Collection Law, which defines “ability to pay” as “the resources of the defendant, including all available income and resources. . .sufficient to pay the fine and provide the defendant and his or her dependents with a reasonable subsistence compatible with health and decency.”

We dedicate the report to Arkansans like Samantha Booten, who struggled with drug addiction that took her life in May 2017, at 28 years old. This mother-of-two spent half of the last four years of her life—nearly her daughter’s entire life—in jail for nonpayment of fines and fees stemming from two tickets in 2013; one for failure to wear a seat- belt and another for using a false name. Samantha bounced from county to county as process-based charges related to her original tickets became stacked one atop the other; incarceration in White County caused failure to appear charges in Saline County, resulting in rounds of incarceration in both counties. At the time of her death, Samantha had active cases in at least four counties. At no point during those four years and her multiple engagements with Arkansas courts and judges did anyone make a meaningful inquiry into Samantha’s ability to pay court-imposed fines and fees.