In the not-too-distant past, it looked as though bipartisan criminal justice reform might have a fighting chance in a deeply divided Congress. A bill aimed at reducing the federal prison population by curbing sentencing requirements was introduced in 2015 and endorsed by sixteen Republicans and twenty Democrats. Ultimately, a vote didn’t materialize, and the bill was largely set aside during election season. Now, despite the tough-on-crime rhetoric of the incoming president and proposed attorney general, some reformers think another window of opportunity may be opening.

Increasingly, the costs of mass incarceration are being transferred to suspects and offenders

One reason that sentencing reform has won broad support in a deeply partisan political moment has to do with the rising costs of incarceration. Conservatives and liberals agree that incarcerating 2.2 million people—25 percent of the world’s inmates—is unsustainably expensive for state and federal government. But while the public conversation often focuses on public cost of incarceration—the cost to taxpayers—this week’s briefing examines the growing private costs for individual citizens who come into contact with the justice system. Increasingly, the costs of mass incarceration are being transferred to suspects and offenders, in two ways: higher and more frequently set bail, and compounding post-sentence fines and fees.

 

The New York Times Magazine reported on the scope of the bail problem in a 2015 feature called “The Bail Trap.” The piece opens with the story of Tyrone Tomlin, arrested in Brooklyn for possession of “drug paraphernalia” (which turned out to be nothing more than a drinking straw). Because Tomlin couldn’t make the $1,500 bail and refused to enter a guilty plea, he spent three weeks at New York’s Rikers Island prison in “pretrial detention,” during which time he endured a severe beating by a group of prisoners. When his day in court finally arrived, charges were dropped and he was sent home, eye swollen shut and short three weeks of income. As the piece reports, Tomlin’s case is no anomaly:

“[A]t any given time, close to 450,000 people are in pretrial detention in the United States — a figure that includes both those denied bail and those unable to pay the bail that has been set. Even that figure fails to capture the churn of local incarceration: In a given year, city and county jails across the country admit between 11 million and 13 million people. In New York City, where courts use bail far less than in many jurisdictions, roughly 45,000 people are jailed each year simply because they can’t pay their court-assigned bail. And while the city’s courts set bail much lower than the national average, only one in 10 defendants is able to pay it at arraignment. To put a finer point on it: Even when bail is set comparatively low — at $500 or less, as it is in one-third of nonfelony cases — only 15 percent of defendants are able to come up with the money to avoid jail.”

Author Nick Pinto summarizes the problem well: “as bail has evolved in America, it has become less and less a tool for keeping people out of jail, and more and more a trap door for those who cannot afford to pay it.”

One reason for rising bail expenses is the fact that the United States is one of only two countries worldwide that allows a for-profit bail bond industry—currently estimated at $14 billion. In this system, private bail bonds allow accused offenders to finance bail costs they can’t meet, but at substantial long-term cost. And it’s not only the poorest Americans who may have need of a such an industry; due to a combination credit debt, low savings, and financial illiteracy, many Americans living in middle-class communities may have trouble coming up with cash for bail as well. As we noted in Vol. 46, a recent survey by the Federal Reserve Board showed that in the case of an emergency, 47% of respondents would struggle to come up with $400.

 

For all the challenges posed by the “bail trap,” pretrial costs are only half the problem. For those who are convicted and serve time, court-imposed financial woes often long outlast jail sentences. Increasingly, the costs of incarceration are being offset by court fees assessed to offenders—fees that often multiply with interest and penalties for missed payments. These “legal financial obligations” (or LFOs) can follow the accused for years, making it harder to secure employment and financial solvency—or even leading to more jail time. “Some jurisdictions are sending people to jail solely for their indigence, for their inability to make payments on their fines and fees,” writes Alexes Harris, author of the new book A Pound of Flesh: Monetary Sanctions as Punishment for the Poor. As a review in the Atlantic puts it, “Even after serving time for a felony conviction, former inmates can remain beholden to the judicial system for the rest of their lives due to court-imposed fines and fees related to their crime.”

In some cases, the cycle of indebtedness starts early. In a brief New Yorker piece, Eric Markowitz shows how court-imposed fines and fees can trap even the very youngest criminal offenders in cycles of poverty and crime. Before they can even drive a car or legally work a full week, many juveniles are hampered by fines and fees that lay claim to their financial futures. Juveniles who struggle to make minimum payments on their court fees accrue penalty fines and interest, and often turn back to illegal activity to make ends meet—Markowitz cites research showing a direct correlation between court fees and juvenile recidivism rates.

 

The financial burden of crime upon the incarcerated isn’t new. By incarcerating citizens convicted of crimes, governments take away their ability to earn income, curtail their ability to develop meaningful skills, and, in many cases, restrict the scope of their future employment options. And we, as citizens, justify these forms of punishment because of a compelling and shared interest in public safety.

What is new is the severity of the financial burden placed upon individual citizens who are convicted, or even simply accused, of crimes. When an offender is released from prison with lasting financial obligations, it’s not just time that has been lost, but often the prospect of economic solvency as well. What’s more, profitable financial instruments like bail bonds and LFOs disproportionately affect the poor—and not just poor offenders, but their families and communities as well. When court system costs rise, the burden is largely borne by those least able to pay and least competent to navigate the system.

As the recent bipartisan push for sentencing reform demonstrates, the costs of criminal justice to government are unsustainable, and must be reduced or recouped. But merely shifting those costs from public agencies to financially vulnerable citizens will, in all likelihood, reinforce rather than adequately address localized and generational cycles of poverty and crime.