How—and Why—America Criminalizes Poverty

Nearly every state in the country has a statute—often called a “board bill” or “pay-to-stay” bill—that charges people for time served. In Missouri and Oklahoma—and in states on both coasts and in the Deep South—these pay-to-stay bills follow defendants arrested initially for small offenses like petty theft or falling behind in child support. Nearly 80 percent of these defendants live below the federal poverty line, meaning they make less than $12,880 a year if they are single, or $21,960 if they are a family of three.

They are the working poor: getting by on minimum wage jobs at the local dollar store; seasonal construction workers who get roofing jobs after tornado season; or, like Brooke Bergen, they are unemployed, unable to escape the combination of drug offenses and a criminal justice system that follows them everywhere. In some places, like Rapid City, South Dakota, the charges for jail time are small, $6 a day; in other places, like Riverside County, California, they have been as high as $142 a day. For people of little means, these court debts are an albatross they cannot escape or ignore. “This is truly a national crisis,” says Lisa Foster, a former California Superior Court judge and co-director of the nonprofit Fines and Fees Justice Center. “This is everywhere. All fifty states.”

It’s hard not to call this what it is: the criminalization of poverty. The process starts with a powerful punch—the trampling of due-process rights as guaranteed in the U.S. Constitution. What follows is a right hook that takes a defendant to the canvas, a bill of court costs that will bury them in debt. Several forces have collided to create this American reality, which Georgetown law professor and author Peter Edelman calls the “junior sibling to mass incarceration.”

The federal “war on drugs,” which began in the 1970s with crackdowns on marijuana coming from Mexico and then on the rise of heroin and crack cocaine, fed the nation’s “tough-on-crime” policies that followed in the ’80s and ’90s. When First Lady Nancy Reagan was telling young people to “just say no,” her husband, President Ronald Reagan, was filling jails with those who didn’t heed the advice.

“In two short decades, between 1980 and 2000,” wrote author and law professor Michelle Alexander in her ground-breaking book, The New Jim Crow, “the number of people incarcerated in our nation’s prisons and jails soared from roughly 300,000 to more than 2 million. By the end of 2007, more than 7 million Americans—or one in every 31 adults—were behind bars, on probation, or on parole.” Alexander ties the rise in mass incarceration in the country—particularly among African Americans—to the aforementioned drug war and the rise of tough-on-crime policies. Those policies also contributed to a massive spike in court fines and fees.

As America began prosecuting this war, the cost to state court systems rose dramatically, mirroring the increase in prison population. Between 1980 and 2013, state corrections costs jumped from about $6 billion to more than $80 billion. Meanwhile, at least in part because of gang activity related to the drug trade, homicide and other violent crime rates were spiking across American cities. The U.S. homicide rate grew annually by 4 percent between 1987 and 1991.

As a result, President Bill Clinton pushed his signature crime bill through Congress in 1994 with the help of then Senator Joe Biden. Clinton proposed a bill that would increase funding for police, create tougher sentencing—highlighted by the federal “three strikes” policy that increased prison stays for repeat offenders—and fund new prisons. The massive bill, known as the Violent Crime Control and Law Enforcement Act, passed in 1994 with bipartisan support.

In 1996, Clinton would also sign a controversial welfare reform bill pushed by Republicans that would, in retrospect, sentence an entire generation to poverty. The worst parts of the bill came out of Speaker of the House Newt Gingrich’s “Contract with America,” which pushed old GOP bromides about “welfare queens” in American cities abusing federal aid programs, using food stamps for drugs, or preferring to live off the government’s charity than look for work. The result was that federal aid was denied to pregnant teenage mothers and strict work requirements were imposed. The bill, known as the Personal Responsibility and Work Opportunity Reconciliation Act, would make it impossible for those convicted of drug crimes to obtain food stamps or other forms of government aid. In return, it left single mothers often making difficult choices: even if they wanted to, they couldn’t live with the father of their children, since it would disqualify them from obtaining the aid they needed to survive.

Many years ago I wrote a series of columns in the Columbia Daily Tribune about a couple living in public housing in Columbia, Missouri. Both had either a high school diploma or its equivalent and were working. They were good at their jobs and got promoted. But the promotions created a conundrum. In most public aid programs, there is no sliding scale, just a hard cutoff. With the promotions, their total family income exceeded the threshold required to stay in subsidized housing. In addition, they would lose their subsidized childcare. Ironically, the family would have been better off without the promotions, as the slight pay increase would upend their lives entirely. So they compromised: one of them didn’t take a promotion, to keep their pay intentionally lower. Poor people make these impossible decisions—diapers or gas, child support or court costs—all the time, but their difficult choices are often exacerbated by the ones made by policy makers.

As corrections costs went up in the late 20th century, lawmakers sought to collect from the very people they were putting away, and those additional costs pushed people deeper into poverty, which further compromised their ability to pay. Over the past four decades, this vicious cycle has become fully baked into the criminal justice system. During the 2020 presidential election, debates on the merits and demerits of the crime bill and its effect on mass incarceration resurfaced once again, with at least some prominent Democrats who previously supported such measures willing to question their prior positions. “I do think we need to revisit some of what we did in the ’90s,” Speaker of the House Nancy Pelosi told me during the run-up to the election.

In the mid-to-late 2000s, additional forces combined to create a toxic stew of public policy decisions that would accelerate the expansive use of fines and fees in American courts. After the subprime mortgage crisis in 2008, the Great Recession that followed devastated state budgets across the country. For instance, Oklahoma’s overall tax revenue dropped about 21 percent during the first year of the crisis and didn’t fully recover until the second quarter of 2019. That massive drop in the state coffers was, in turn, passed on to cities and counties to reckon with. Missouri faced a similar, if less dramatic, downturn: a 14 percent drop in 2010, and the state would not return to precrisis revenue until 2016. Nationally, according to the Pew Research Center, state-by-state revenue declined more than 12 percent by late 2009 and didn’t recover until 2013.

As that revenue declined, other expenses, such as Medicaid and corrections costs, went up. Lawmakers had to find new revenue to balance budgets. Unlike the federal government, most state governments can’t deficit-spend (meaning, they can’t borrow; they have to raise what they wish to spend). Some states raised taxes, which is the traditional solution. But many state legislatures, particularly those controlled by Republicans, followed party orthodoxy: no new taxes.

This was in part because of the rise of political operative Grover Norquist’s “Taxpayer Protection Pledge,” which was becoming GOP dogma. Norquist, a former speechwriter for the U.S. Chamber of Commerce, is the founder of Americans for Tax Reform, and had played a role in crafting Gingrich’s Contract with America. In the 2012 GOP presidential primary, all but one of the Republican candidates signed the “no new taxes” pledge, which became the standard in Republican-leaning states like South Carolina, Oklahoma, and Missouri. But since they still needed to balance state budgets, what did they do? They turned to court fines and fees. Put another way, lawmakers found a backdoor tax, and poor people paid the price.

This is the cautionary tale to keep in mind when elected officials offer economic nirvana by cutting taxes: Somebody, somewhere, is always paying the price, whether it’s middle-class families stuck with higher college tuition bills, truckers navigating crumbling highways, or poor people stuck paying the bill of a criminal justice system that used to be funded by taxes.

Court fines and fees have been a part of the American court system since the beginning. Civil rights icon Rosa Parks, for instance, was fined $10, plus an additional $4 in court costs, when she was cited for a municipal ordinance violation in Montgomery, Alabama, in 1955 for sitting on a bus reserved for whites. After the Great Recession, lawmakers increasingly turned to fines and fees to fund court services and other elements of government. “Over time, lawmakers started to use the courts as a piggy bank,” Foster said. “The results are truly staggering.”

“For a person who may be justice-involved and on the lower socioeconomic scale, the punitive consequences for the inability to pay these fees and fines lends itself to additional involvement in the criminal justice system,” Kris Steele, executive director of Oklahomans for Criminal Justice Reform, told Tulsa World in 2019. “And we reach a point where we begin to criminalize poverty. And that should be unconscionable for any Oklahoman.” In the past decade, forty-eight states have increased their court fines and fees, and the rate of the hikes are shocking. According to Foster, the state of California, for example, has $10 billion in unpaid fines and fees.

In 2009, Kendy Killman, a white, 50-year-old single mother of a disabled child, picked up a misdemeanor drug charge after a questionable traffic stop in Norman, a university town south of Oklahoma City. She has been hounded by it for more than a decade. What started as

$900, all set by state statute, more than tripled over the years: she was handcuffed and detained for her inability to pay and the costs kept rising. Throughout it all, she never committed another crime. But she continues to live in fear of arrest and struggles to make ends meet.

Sasha Darby of South Carolina lost her baby after a stint in a Lexington County jail. She was convicted of a misdemeanor assault charge that stemmed from a spat with her roommate. But she was locked up more than a year later, because she couldn’t afford the court costs foisted upon her. At 26, she lost her job, her home, and, eventually, her baby, all because she was a poor, African American single mother who couldn’t afford the $1,000 court bill. In many urban areas, and some parts of the rural south, it’s people of color who are disproportionately affected by these court collection schemes. In fact, a 2019 study by the Criminal Justice Policy Program at Harvard Law School found that the prevalence of fines and fees in overpoliced Black communities contributes directly to the wide racial disparities in incarceration in the United States.

Remember Philando Castile? Video of him being shot to death during a traffic stop in St. Paul, Minnesota, went viral in the summer of 2016. He warned the officer that he had a firearm in the car, which he was licensed to carry, but the officer—who a grand jury declined to charge—fired several shots almost immediately, killing him while his girlfriend and her daughter were in the car. But Castile’s plight began much earlier. From age nineteen to the time of his death at thirty-two, Castile had been pulled over by police 46 times, which resulted in more than $6,000 in fines and fees. He never got ahead of this debt while he was alive and, as we’ll see, hardly anyone ever really does.

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From Profit and Punishment: How America Criminalizes the Poor in the Name of Justice by Tony Messenger. Copyright © 2021 by the author and reprinted by permission of St. Martin’s Publishing Group.