Draft Report on CJ Debt Research for Fortune
CRIMINAL JUSTICE DEBT: COSTS & CONSEQUENCES
The Fortune Society
BUILDING PEOPLE, NOT PRISONS
“Reintegration involves first finding ways to meet basic material needs for food and housing and, ideally, expands to encompass economic stability and mobility and becoming a full participant in social, economic, political, and cultural life of one’s family, community, and nation.” (Harding et al. 2016)
TABLE OF CONTENTS PROJECT OVERVIEW.............................................................. 1 RESEARCH HIGHLIGHTS......................................................... 3 SURVEY HIGHLIGHTS.............................................................. 4 INTERVIEW HIGHLIGHTS........................................................ 6 CONCLUSION.......................................................................11 REFERENCES & ADDITIONAL READING..................................12
PROJECT OVERVIEW In the United States today, people owe local, state, and federal governments billions of dollars in unpaid debt related to contact with the criminal justice system. “Criminal Justice Debt” is a broad term used to encompass the debt incurred from Criminal Justice Financial Obligations (CJFO’s) comprising the fines, surcharges, fees, costs, restitution, and any other monetary liability that accompany contact with the criminal justice system. This debt stems from a system that is complex, vast, and growing. While the issue of fines and fees and their deleterious effects on individuals and communities is starting to emerge in national discourse, to truly advance sound policy in this domain we need to understand the personal realities of having criminal justice debt. To that end, The Fortune Society partnered with a researcher from the John Jay College of Criminal Justice, CUNY to learn more about the following research questions: 1. What is the experience of having criminal justice debt? 2. How does criminal justice debt affect family relations? 3. What is the relationship between criminal justice debt and the goals of reentry? Over the course of 24 months from December 2014 to December 2016, researchers interviewed 61 Fortune clients; all of whom had some experience with CJFO’s. Fortune employees were instrumental in conducting outreach for the project and recruiting research volunteers. Research participants were all provided an opportunity to give informed consent to participate and received $10 gift cards as compensation. The researchers conducted semi-structured interviews with 1
“While the issues of fines and fees and their deleterious effects on individuals and communities is starting to emerge in national discourse, to truly advance sound policy in this domain we need to understand the personal realities of having criminal justice debt.” participants, using questions focused on the social and economic processes related to payment/non-payment of CJFO’s. The interviews were typically 45-60 minutes in duration. Participants also completed a 20item questionnaire. Participants represent the diversity of Fortune clients and the justice-involved population more generally. As Table I1 shows, the majority of participants are African-American or Latinx (or both) and male (77%). The two most common age groups are 19 to 29 years old (31%) and 50 to 59 years old (28%). Approximately 60% did not complete high school. Many participants (60%) have children, including 10% who are the custodial
Collection of administrative data commenced after a preliminary round of interviews and questionnaires were conducted. Researchers were unable to retroactively obtain data for these initial subjects, thus figures reflect responses for all subsequent participants (n=50).
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Table I. Characteristics of Interview Participants (n=50)
Demographic group
Race
Ethnicity
Gender
Age at intake
Education (highest grade level completed)
Black/African American White Other Unreported Hispanic/Latinx Non-Hispanic/Latinx Unreported Male Female Unreported 19-29 30-39 40-49 50-59 60+ Unreported 8th grade or lower
76.5 7.8 13.7 2.0 19.6 78.4 2.0 76.5 19.6 3.9 31.4 19.6 15.7 27.5 3.9 2.0 5.9
9th grade 10th grade 11th grade High school graduate and above Unreported
3.9 17.6 33.3 35.3 3.9
parent and 24% who have adult children. Approximately one-third of participants are currently on probation, parole, or federal supervised release, while 47% have an open case. Other notable characteristics among the participants are that only 65% are currently independently housed, and the remaining participants report currently experiencing homelessness or living in an institution (e.g. residential substance treatment program). 2
Percentage
However, 20% of all respondents report being at risk of losing their housing. Two-thirds of people who do have housing are living with family or friends. Only 8% are employed full- or part-time. Accordingly, nearly 40% report public benefits as their primary source of income, while one-third report having no income at all. The fact that participants’ income range from meager to non-existent illuminates the impact of their criminal justice debt profile as shown in Figure I.
Figure I. CJ Debt Profile of Participants Restitution
Min/Max $75-600,000 Mode $100 % Total* (23.9)
Surcharges
Fines
Min/Max $60-1,000 Mode $375
Min/Max $50-10,000 Mode $150**
Criminal Justice Debt Profile of Participants
% Total* (38.6)
% Total* (31.8)
Other Fees
Court Fees
% Total* (14.8)
% Total* (34.1)
Min/Max $25-150 Mode $100**
Min/Max $25-3,000 Mode $75
*Total sample includes interview plus survey and survey-only participants (n=82); surveyonly participants not included in administrative data reported in demographics ** Multiple modes exist; smallest value is displayed
RESEARCH HIGHLIGHTS To put the research findings in context, it is important to understand the consequences for non-payment in New York State. Here, failure to pay one’s CJFO’s can result in incarceration, parole being extended or revoked, a civil judgment (which is public information, meaning that credit agencies have access to it with subsequent negative effects on the ability to secure credit, housing, and even employment), liens, wage/bank account garnishing, tax rebate interception, driver’s license suspension, business license revocation, suspension, or denial of renewal, or any combination thereof. New York State has more than 120 CJFO-related statutes, including fines, surcharges, fees, penalties, assessments, court fees, and restitution – a good number of which are mandatory and cannot be waived by judges for inability to pay. New York State also has stringent laws allowing for involuntary payment via people’s commissary accounts while they are in jail or prison. If a person has one CJFO judgment, prison wages are garnished at the rate of 20%. If a person has more than one judgment, the state garnishes 40% of wages (New York State Bar Association, 2006). However, for outside receipts (i.e. any gifts or nonprison wage income) 100% of outside receipts are garnished if there are two or more judgments, and 50% are garnished if there is just one (New York State Bar Association, 2006).2 Note that although this policy affected the interviewees in this study, the policy has recently changed (See: New 3 York State Corrections and Community Supervision Directive 2788, “Collection & Repayment of Inmate Advances & Obligations”). 2
Table II. Examples of Criminal Justice Financial Obligations in New York State Statute
Pertains to
Amount
PENAL LAW § 60.35(1)(a)(i)
Felony surcharge
$300
PENAL LAW § 60.35(1)(a)(ii)
Misdemeanor surcharge
$175
PENAL LAW § 60.35(1)(a)(i)
Violation surcharge
$95
PENAL LAW § 60.35(1)(a)(i)
Felony crime victim assistance fee
$25
PENAL LAW § 60.35(1)(a)(ii)
Misdemeanor crime victim assistance fee
$25
PENAL LAW § 60.35(1)(a)(iii)
Violation crime victim assistance fee
$25
PENAL LAW § 60.35(1)(a)(iv)
Sex offender registration fee
$50
PENAL LAW § 60.35(1)(a)(v)
DNA databank fee
$50
SURVEY HIGHLIGHTS In addition to an interview (described below), participants also completed a survey. The goal of the survey was to explore whether there are any commonly held attitudes among people with criminal justice debt about that debt. Indeed, there are. Perhaps most notable is the finding that approximately 46% of participants report that CJFO’s achieve the goals of punishment, rehabilitation, and deterrence “very poorly” as shown in Figure II. A similar percentage believe that CJFO’s achieve the goal of repaying the community and compensating the victim very or somewhat well, as shown in Figure III. Other interesting following:
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findings
include
the
Question: How would you rate the level of importance for paying offense-related financial obligations, relative to the other obligations you have? Average Response: just as important Question: In general, do you think offenserelated financial obligations are…low priority, medium priority, or high priority? Average Response: medium-level priority Question: How well do you think offenserelated financial obligations achieve the following: prevent future criminal activity, compensate the victim(s), rehabilitation, punishment, repay the community? Average Response: somewhat poorly to neither poorly nor well
Figure II. How well do CJFO’s achieve the following goals? Somewhat poorly
Very poorly
10%
46.3%
44.4%
37
36
Punishment
7
8.8%
Somewhat well
Neither poorly nor well
9
Rehabilitation
12.3% 10
11.3%
8
12
19
10
12.3%
13
14.8%
23.8%
Very well
16%
45.7%
37
Prevent future criminal activity 19.8%
9 11.1%
16 8 11
9.9%
13.6%
Figure III. How well do CJFO’s achieve goals related to compensation? Somewhat poorly
Very poorly
10%
8
11.3%
9
Somewhat well
Neither poorly nor well
46.3%
47.4%
37
36
Repay the community
Compensate the victim
16 20%
10 12.5%
10.5%
8
16 21.1%
Very well
8 10.5% 8 10.5%
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INTERVIEW HIGHLIGHTS One way of understanding reentry is that it is a process of separating from the criminal justice system, with the end goal being that a person is fully reintegrated into civic life. As such, it makes certain demands of the person reentering the community, e.g. desistance from criminal activity, furthering one’s education/training to improve job prospects, working, securing housing, and participating in substance abuse treatment as necessary. However, a person’s success in achieving these outcomes depends, in part, on the society in which he lives. Namely, insofar as there is a duty on the community’s part, it is to refrain from impeding a person’s success, if not to actively promote it. Therein lies the problem with CJFO’s and the resulting debt. Given the severity and scope of CJFO’s, many people are unable to pay their debt. This becomes particularly frustrating for people when they also have served time for the same offense(s). The consequence is that many people feel that the same system that demands they meet certain goals simultaneously makes it more difficult for them to achieve these very goals. The following highlights from our research explore this notion by focusing on several key findings, providing analysis, sample quotes, and policy implications for each one.
CJFO’s and Criminal Justice Debt Prompt Suspicion and Avoidance Many debtors report that financial obligations foster or exacerbate cynicism toward the criminal justice system and even society as a whole. Many interviewees called into question the justifications for imposing CJFO’s, given the limited ability of many to pay them. Many 6
also expressed suspicion about the motives driving the system of CJFO’s and skepticism about how the revenue from CJFO’s is ultimately spent. It may come as no surprise, then, that some people with CJFO’s seek ways to avoid official interaction with the state. They put all assets in someone else’s name (cell phone, lease, car, etc.), refuse to have a bank account, and conduct all business in cash. The upshot is that rather than simply being a ubiquitous form of punishment, one of the costs of CJFO’s is a person’s relationship to society itself. Example: “The government is very vengeful…They want blood from a stone now. They took everything I had…Whatever you earn, they will be on top of it if it’s on the books. And they’ll want a percentage…They’ll never get it. I’ll make sure I stay under the radar. Whatever I do to earn money will be off the books…I don’t think they can seriously expect to recoup all that money. It’s merely punitive, more than anything else.” “I don’t know. I’m going to draw it out [my money] and put it in someone else’s name. They got tricks. They play games, I’ll play games too. I’m going to stash it away. They’re not going to get their hands on it.” “...Why would I pay restitution to the city? Who is the city? Who is that money going to? They say bridges and tunnels but I don’t see nothing getting fixed in this city…the way they go about it, it’s like they trying to just steal money. Like, and then I don’t even know where the money goes. It doesn’t go to the people, it doesn’t go to the city.”
Policy Implications: Insofar as the goal of CJFO’s is to fully integrate a formerly incarcerated person back into the community, state actions and policy that engender mistrust directly undermine that goal. Improved policy would, at a minimum, call for more thorough explanation of a person’s CJFO’s—both their rationale and the destination of any money collected. Truly innovative policy would anticipate the structural incentives to evade the state and would exercise more restraint in collections. For example, limiting involuntary payment to income from earnings, inheritance, lottery winnings, or gambling receipts, instead of tax rebate interception or garnishing wages earned during incarceration.
CJFO’s have Extensive Negative Financial Consequences Obviously, a sanction that requires the payment of money reduces the amount of money a person has. However, the effect of CJFO’s goes far beyond simply reducing a person’s income. Instead, because people are so often unable to pay their CJFO’s in full or within a short timeframe, the resulting debt escalates with myriad attendant consequences. Just as with consumer debt, CJFO’s can affect a person’s credit score, which in turn hinders his ability to get loans, credit cards, mortgages, leases, or even to secure employment since many employers now ask for credit history prior to hiring. Perhaps just as important as the practical side of having CJFO’s is the emotional toll it takes on people struggling to reintegrate. Many people report feeling both indebted and thwarted from doing what is necessary to pay
that debt. This is a key way in which CJFO’s have excessively problematic consequences for debtors. Examples: “There’s no way to deal with financial debt— it doesn’t matter how much debt you have, if you have no job. It could be a dollar, it could be a million dollars… So, without having a good job for these things…the debt’s just going to keep going, because debt snowballs really quickly. And there’s no way to get out without a good job, and there’s no way to get a job without good housing.” “...it just ruins your whole—like, I made mistakes and I know, like, I made mistakes I gotta pay for but just like financially it just ruins you.” “I’m stable. But I always have that cloud of, I’m never going to be able to get a house… What do I even do to start paying off, ‘cuz I really have no other debts… It’s the court debt, it’s the crime debt. So where do I even pay this off to start my life? You know, to get a credit card, to get a car… I have an apartment in Queens…but how do I even start to get back on my feet when I have almost $20,000 in court debt that’s in civil judgment? So I don’t even know, I probably couldn’t even finance a bicycle… What if I want to go back to school? How do I obtain school loans? I don’t even think I can…a credit card, a car, a house. You know, now I’m stable and I have these goals but I don’t think it’s even obtainable because I don’t even know where to begin to start to pay this stuff off.”
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Policy Implications: Minimizing the negative financial consequences of CJFO’s could be readily achieved with policies that minimally adjust collection and enforcement. Predicating payment requirements on ability to pay would go a long way toward helping alleviate the more deleterious aspects of CJFO’s. Similarly, a significant grace period after incarceration (e.g. 12 months) would give people time to adapt and secure income prior to being
“Because the burden of indebtedness frequently extends beyond the debtor, at stake is the potential for this debt to add an additional stressor to families, many of whom may already be struggling financially.” required to pay a sizable debt. Ensuring that restitution is only mandated when there is an identifiable individual victim (or victims) and that returned stolen property is factored into restitution amounts (and then communicated to the debtor) would enhance both efficiency and understanding on the part of the debtor. While a civil judgment may be preferable
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to a criminal one, a limit to how long CJFO can affect credit reports would keep it from exceeding its original punitive intent.
Familial Involvement: Support vs. Resistance Directly related to the financial consequences of CJFO’s explained in the previous section are the effect of this debt on family relationships. Because the burden of indebtedness frequently extends beyond the debtor, at stake is the potential for this debt to add an additional stressor to families, many of whom may already be struggling financially. This, ultimately, is yet another cost to both family and community. Our research found two main ways in which people describe the effect of CJFO’s on family relationships. On the one hand, family members provide direct support in the form of helping pay the debt, indirect support by providing otherwise unaffordable essentials such as housing, childcare, food, transportation, etc., and on-going emotional support as a person goes through the reentry process. On the other hand, some families remain quite separate from the CJFO’s because of reluctance or inability on the part of the family or because of refusal on the part of the debtor to ask for help. Examples: Supportive “If it wasn’t for my family I wouldn’t have nothing… Even if you get mad at your family you don’t break ties… Family is the backbone of society… She’s always going to be my friend, because she’s my blood… Don’t break ties, don’t steal from them, don’t do nothing to them…don’t burn that bridge…”
“She’s [mother] cool with it. She knows I’d help her out if she needed it.” “…my family loves me it’s just that they don’t do the jail thing and they don’t do the drug thing…” “…family loves me unconditionally, so they helped ” Examples: Reluctance “It’s shameful to ask for help from your children…I have to depend on my 22 year-old son to help me out financially and I feel badly about that.” “My family doesn’t offer help; but if they did, I wouldn’t accept it. I know if they offered help it wouldn’t be coming from the heart, it would be coming from their conscience.” “My family wants to help but I feel awkward when they offer me things ‘take this $50.’ No. Fifty dollars is nothing to them… I just feel like a slacker, [laughs] a deadbeat, a whatever you want to call it… So when it comes to my sister or my family members offering me help, I just think, ‘oh my God, I’m a bum’ [laughs]… I minimize hurting they feelings by taking some and promising to pay it back, which they don’t like either.” Policy Implications: The findings related to family involvement suggest that future policy should take into account the simple fact that debt extends beyond the debtor. While a similar argument can be (and is) made for incarceration, the fact that it is possible for monetary sanctions to be “served” (i.e. paid) by someone else has
“It’s shameful to ask for help from your children...I have to depend on my 22 yearold son to help me out financially and I feel badly about that.” important implications. It means that policymakers and judges have a different type of responsibility for ensuring that a person’s family is not unfairly caught up in a person’s punishment. In practical terms, this means taking into account a person’s living situation, reliance on public benefits, employment status and prospects among other indications of ability to pay.
CJFO’s and Resulting Debt = Disproportionate Punishment A very common theme in our research is the sentiment that CJFO’s exceed the limits of fair punishment. Many people expressed the feeling that their custodial sentence was warranted on principle, even if the duration was excessive. However, nearly everyone expressed feelings ranging from bewilderment to outrage that they also had to pay significant CJFO’s. Their inability to do so essentially rendered the resulting debt into its own form of punishment. Many people doubt they will ever be able to pay their CJFO’s in full, particularly if they also now have a criminal record. In addition, people questioned the wisdom on the part of the state of seeking to 9
extract money from people who clearly have none and who have poor prospects for ever earning much. Rather, some proposed that the state take into account ability to pay. That way, the otherwise competing goals of punishment that is both effective and achievable may actually be attainable. Examples: “[I’m] somebody who’s not going to be making a lot of wages in the first place because of my criminal history and my lack of education, I feel like it’s a big obligation. I have two children that I’m going to be responsible for and I’m not going to be able to afford it but I have no choice but to pay it so it’s going to put me in a situation but it’s part of my
“Failure to take into account the potential for disproportionate punishment not only infuses inefficiency into an already cumbersome system, but it further undermines people’s confidence in the society into which they are supposed to be reintegrating.”
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punishment. There’s nothing I can do about it. I mean, it’s money that I stole and that I served my time for. I would think that five years is enough to pay that back, but evidently they don’t think so.” “People doing 15, 20 years—why do they have to pay restitution? And people doing 25 years, where’s he getting money from?” “If I had to impose a judgment based on the amount that was stolen, I wouldn’t set a judgment and say, ‘pay this amount.’ Because you don’t know what that person’s… financial situation is…I’d make it according to the person’s income. That’s the only thing I disagree with…They want their money. I did something wrong. I think it’s fair to make it according to what you’re able to pay.” “It’s hard… You get over the joy of getting out of prison and it becomes a burden… like, what do I do, panic?… I’ve never felt like this in my life… I’m facing reality. Prison was the easy part. That’s how I feel about it.” Policy Implications: The key implication of this finding is that it would behoove policy-makers to consider and weigh both the individual and societal costs of imposing monetary sanctions. In doing so, we might shift the system so that it more accurately fits the punishment to the crime. Failure to take into account the potential for disproportionate punishment not only infuses inefficiency into an already cumbersome system, but it further undermines people’s confidence in the society into which they are supposed to be reintegrating.
CONCLUSION The state’s interest in CJFO’s is officially twofold: punishment (retribution, deterrence) and restitution (to victims). A third questionable goal is revenue-raising.3 But as the state stands to benefit from CJFO’s—either through crime control or revenue—the state must also consider the attendant costs on both of these fronts as well.
could more easily understand and manage their CJFO debt. Similarly, promoting better assessment of and accounting for indigence/ ability to pay may be the most straightforward and beneficial policy adjustment in terms of mitigating the excessive harm of CJFO’s. Advocacy on any of these fronts stands to help significantly improve the experience of criminal justice debt.
In light of that insight, the findings presented here suggest a few promising avenues to explore in terms of advocacy. The first is to explicitly treat CJFO debt as an important part of the reentry process. A critical part of this is raising awareness about the effect of debt on people beyond the debtor (e.g. family members). Doing so would both further the state’s interest in maximizing accountability while also fostering vigilance in minimizing undue harm to debtors. The idea of advocating for consolidating CJFO debt warrants careful consideration. That any criminal justice agency can impose its own CJFO’s means that people often owe a variety of debts to a variety of places. Were the onus on the state to track all outstanding debt, then debtors
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“Section 60.35 [the statute mandating surcharges] was originally enacted as part of a massive revenue-raising bill meant to ‘avert the loss of an estimated $100 million in State tax revenues’”(People v. Guerrero, 12 NY3d 45, 49 (2009), citing Legislative Memo in Support, Bill Jacket, L 1982, ch 55, at 6); The opinion in People v. Jones, 2016 explains the clear revenue-focused rationale for fees and surcharges: “…the fees imposed under Penal Law § 60.35 are related to the ‘State’s legitimate interest in raising revenues’ (People v Barnes, 62 NY2d 702, 703 [1984]), and the mandatory surcharge ‘is paid to the State to shift costs of providing services to victims of crime from “law abiding taxpayers and toward those who commit crimes”’ (People v Quinones, 95 NY2d 349, 352 [2000], quoting11 Mem of State Executive Dept, 1983 McKinney’s Session Laws of NY, at 2356, and citing Penal Law § 60.35 [3]; State Finance Law § 97-bb; Barnes, 62 NY2d 702)
REFERENCES & ADDITIONAL READING American Civil Liberties Union. (2010). In For A Penny. The Rise of America’s New Debtors’ Prisons. ACLU of Washington & Columbia Legal Services (2014) Modern-Day Debtors’ Prisons: The Ways Court-Imposed Debts Punish People for Being Poor. Bannon, Alicia, Mitali Nagrecha, and Rebekah Diller. (2010). Criminal Justice Debt: A Barrier to Reentry. New York : Brennan Center for Justice. Bastien, A. (2017). Ending the Debt Trap: Strategies to Stop the Abuse of Court-Imposed Fines and Fees. PolicyLink. Beckett, Katherine and Alexes Harris. (2011). On cash and conviction: Monetary sanctions as misguided policy. Criminology & Public Policy, Volume 10, Issue 3. Conference of State Court Administrators. (n.d.) “2011-2012 Policy Paper: Courts Are Not Revenue Centers.” deVuono-powell, Saneta; Chris Schweidler, Alicia Walters, and Azadeh Zohrabi. Who Pays? The True Cost of Incarceration on Families. Oakland, CA: Ella Baker Center, Forward Together, Research Action Design, 2015. Eaglin, Jessica M. (2015). Improving Economic Sanctions in the States, 99 MINN. L. REV. 1837, 1839. Harding, D. J., Morenoff, J. D., Dobson, C. C., Lane, E. R., Opatovsky, K., Williams, E. D. G., & Wyse, J. (2016). Families, Prisoner Reentry, and Reintegration. In Boys and Men in African American Families (pp. 105-160). Springer International Publishing. Harris, A. (2016). A pound of flesh: Monetary sanctions as punishment for the poor. Russell Sage Foundation. Harris A, Huebner B, Martin K, Pattillo M, Pettit B, Shannon S, Sykes B, Uggen C. (2016). “Multi-State Study of Monetary Sanctions: A Report to the Laura and John Arnold Foundation.” Harris, Alexes, Heather Evans and Katherine Beckett. (2010). “Drawing Blood from Stones: Legal Debt and Social Inequality in the Contemporary United States.” American Journal of Sociology 115(6): 1753-1799.
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Martin, K. D., Smith, S. S., & Still, W. (2017). Shackled to Debt: Criminal Justice Financial Obligations and the Barriers to Re-Entry They Create. New Thinking in Community Corrections. National Institute of Justice. Martin K, Sykes B, Shannon S, Edwards F, Harris A “Monetary Sanctions: Legal Financial Obligations in the Criminal Justice System” Annual Review of Criminology, Volume 1. (in press) New York State Bar Association, (2006) “Re-Entry and Reintegration: The Road to Public Safety, Report and Recommendations of the Special Committee on Collateral Consequences of Criminal Proceedings” available at https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=26857 Rosenthal, A; Weissman, M. (2007). Sentencing for Dollars: The Financial Consequences of a Criminal Conviction. Center for Community Alternatives, Justice Strategies. Working Paper.
This project would not have been possible without the amazing clients and staff at The Fortune Society who participated in the research interviews, sharing their experiences in an effort to create better informed policies and practices, thank you! The Primary Investigator for the project was Karin D. Martin, an Assistant Professor of Public Management at John Jay College of Criminal Justice and The Graduate Center, City University of New York. Research assistance was provided by Kimberly Spencer-Suarez, a doctoral candidate at the Columbia University School of Social Work. Thank you to the staff of the David Rothenberg Center for Public Policy at The Fortune Society for your partnership and contribution to this project.
Recommended Citation Martin, Karin & Kimberly Spencer-Suarez (2017) Criminal Justice Debt: Costs & Consequences. New York, New York: The Fortune Society.
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