Yep, they’re called “Pay or Stay” sentences, and are a growing problem under the state’s sagging economy. As defendants are increasingly unable to pay their court costs, known as “legal-financial obligations (LFOs), they find themselves repeatedly back in the slammer — creating a spiraling personal debt tragedy that rivals that of the perpetual college student attempting to stave-off payments while accumulating more debt.
Much like student loans, there’s no getting-out from under this debt/imprisonment cycle with Michigan courts continuing to take such a hardline on delinquent payments. And yes, incarceration does cost the state considerably more than any losses they might incur from total default, debt restructuring or partial forgiveness of the amount owed. Plus, the practice is unconstitutional.
Consider defendant Joseph Bailey who pled guilty to a probation violation back in 2008 and was ordered to pay over $14,000 in restitution. As with many people who experience a brush with the criminal justice system, employment and steady income became an iffy proposition at best. As of 2010, Bailey had remitted only $170 towards his legal obligation, so Wayne County Circuit Court Judge James Chylinski did what he claimed was the only remedy found in the law — he sent Bailey back to prison. No consideration of the defendant’s particular circumstances entered into the court’s decision. It was a situation made all the more tragic because Bailey had just secured decent full-time employment — a herculean feat for an ex-convict, especially in a bad economy.
Enter the American Civil Liberties Union, the Michigan State Planning Body and the Brennan Center for Justice. As a group, they recently filed an amicus brief with the appeals court on behalf of Bailey. The filing refers to the “pay or stay” practice as “endemic throughout the state”, and their use of the term “debtors’ prison” is very deliberate throughout the 44 page document.
This is not a new issue with the ACLU. In 2010, they published the report In For a Penny: The Rise of America’s New Debtors’ Prisons that detailed the growing problem, highlighting Michigan in particular. Over the past three years, they have filed emergency appeals on behalf of five similar defendants in that state. The ACLU wishes to make this point crystal clear with the Michigan judiciary.
The Michigan State Planning Body, an organization composed of individuals from the legal-service community, the judiciary, lawyers and other community service leaders, stated in the brief that they “see the impact of aggressive, and sometimes unconstitutional, court-collections programs…and how court-collection actions often impact dependent family members of defendants.”
The Brennan Center for Criminal Justice also published a report on the subject: Criminal Justice Debt: A Barrier to Reentry which focused on the growing scope of the problem and its negative impact on governments, communities, families and individuals.
Here’s Democracy Tree’s “brief”, of their court brief:
It describes the folly of incarceration due to unpaid LFOs as:
[A] trapdoor into debtors’ prison for indigent defendants. Moreover, it contributes to an exceedingly expensive incarcerated population in the state of Michigan.
Ironically, in these cases, the state forgoes debt revenues and incurs increased costs as a result of unnecessary incarcerations.
The story of Mr. Bailey is heartbreaking:
Joseph Bailey’s story, as set forth in his brief, clearly illustrates the problems — both legal and practical — with the practice. Like indigent individuals throughout the state, Mr. Bailey was sentenced to a term of incarceration due to his failure to pay court-ordered restitution without any analysis of whether, in fact, he even had the ability to make such payments on the schedule established by the court. Even worse, Mr. Bailey was sent to prison just as he had finally acquired a well-paying job. In one fell swoop, the court deprived Mr. Bailey of gainful employment and the ability to make restitution while returning him to the taxpayers’ care.
The document goes on to challenge the constitutionality of Michigan’s routine practice of incarceration:
As federal and state courts have repeatedly recognized, prison sentences like the one imposed upon Bailey, applied unevenly and often without any consideration of the indigency or ability to pay of those incarcerated, present a significant Equal Protection Clause issue under the Fourteenth Amendment to the United States Constitution.
And a history lesson directed at the circuit court:
The United States government eliminated the practice of imprisoning debtors in 1833, and the Michigan Constitution contains a specific prohibition on debtors’ prisons…Moreover, the United States Supreme Court has repeatedly ruled that indigent individuals may not be incarcerated based on their inability to pay criminal-justice-related debt.
What should Michigan expect moving forward on the issue?
The amicus brief asks the court to outline “clear, objective criteria for determining ability to pay” along with providing “guidance on alternatives to incarceration.”
Sounds fair…But then, there are always political considerations…
While Michigan, along with many other states, has seen a growing inclination among certain conservative fiscal hawks to find ways to reduce prison populations (and costs), unfortunately there remain those among the GOP ranks who continue to ring the tired “get tough on crime” bell for reasons including: entrenched political ideologies of their district, shameless catering to the privatized prison industry lobby, and of course, there are always those hold-outs clinging to the failed war on drugs.
Private prisons are on the rise across the nation, and Michigan’s GOP lawmakers just can’t seem to get enough of the idea. As reported in a recent Mother Jones article, another specter of evil lurks — occupancy requirements in private prison contracts with states are now a common practice:
A new report by In the Public Interest, an anti-privatization group, reviewed 62 contracts for private prisons operating around the country at the local and state level. In the Public Interest found that 41 of those contracts included occupancy requirements mandating that local or state government keep those facilities between 80 and 100 percent full. In other words, whether crime is rising or falling, the state must keep those beds full.
As Democracy Tree reported last week, sequestration is compounding the problem by thwarting federal judges from doing what is best for individual defendants, including treatment programs, thus creating a formula for rampant recidivism across the nation, and Michigan is ground-zero, with Flint and Detroit taking the top two spots on the FBI’s most violent cities list.
It’s time for Michigan courts to abandon their medieval ways and begin to exercise some 21st century common sense.
Amy Kerr Hardin