Part II. Court debt punishes the poor, and most goes uncollected
The costs for even a single incident in the criminal justice system are simply out of reach for many Oklahomans. About 80 percent of criminal defendants are considered indigent and eligible for a public defender1, and research shows that people in jail on average earned less than half of the median annual income of their peers even before their incarceration.2 With legal financial obligations that can easily amount to 50 percent or more of an annual pre-tax minimum wage income, the extremely low collection rates on criminal court costs should come as little surprise.
Accumulation of debt
As the examples above demonstrate, even one case can bring thousands of dollars in financial obligations that are difficult to pay for people with low incomes. These problems are multiplied for many Oklahomans who struggle with mental health and substance abuse issues, which often leads them to being repeatedly arrested and charged with minor crimes. As charges pile up, the accumulation of court debt presents an obstacle potentially even more devastating than jail or prison time.
New York Times columnist Nicolas Kristof told the story of Rosalind Hall, a Tulsa woman who had been jailed for failing to pay court costs that totaled $11,258.3 As a result of a pattern of petty crimes related to her mental illness and substance abuse problems, she had been unable to hold a job to pay off her mounting debt to the court. Each time she failed to pay her court costs, a warrant was issued for her arrest, carrying with it new fees that grew over the years. In 2001, she was charged a $30 bench warrant fee and $5 fee to the Court Clerk each time this happened. (In 2016, those fees total $80: $50 for the court fund, $25 for the Oklahoma Court Information System, and $5 for the Court Clerk.) After failing to pay $4,294 in costs related to three cases, she was found guilty of willful failure to pay in 2002 and ordered to serve 101 days on an inmate work program. She was credited $25 per day for her labor, but the debt continued to pile up even after five months of working it off.
Although there is no statewide data available on how many people owe court costs or how much they owe, Judge Don Easter estimated that Oklahoma County alone had a balance of over $100 million due on 124,000 criminal cases between 2000 and 2014.4 On these rough estimates, each case averages over $800 in court costs due. Judge Easter also estimated that his office expects to collect only 5 to 11 percent of the costs assessed on criminal cases.
Economic disadvantage of criminal defendants
The extremely low collection rates in Oklahoma County should be unsurprising given the low socioeconomic status of most criminal defendants. Very high legal financial obligations can spell disaster to the long-term finances of defendants who are struggling to get by even in the best of circumstances.
Although the nature of the relationship between crime and poverty is complex and contentious, no one disputes that those who end up in the criminal justice system tend to be poor. Nationwide, around 80 percent of criminal defendants are considered “indigent” and eligible for public defenders; statistics provided by the Tulsa County Public Defender’s Office match that estimate almost exactly.5
Closer studies of the socioeconomic status of criminal defendants provide a clearer look at how dire their poverty tends to be. One study found that people in jails earn less than half of their peers when controlling for age and race, with a median annual income of $15,109 before they were incarcerated.6 Black women in jail had median annual incomes of just $9,083 per year, compared to $23,760 for their non-incarcerated peers. That places the median black woman in jail well below the poverty line even for a household of one, which is set at $11,880 per year for 2016.7
The very low incomes of criminal defendants can put them in desperate financial situations that lead to their involvement in the criminal justice system, compounding their financial difficulties. This dynamic is especially apparent in the case of “bogus checks”, an offense that can include any case in which a check is returned for insufficient funds or is written from a closed or nonexistent account. While most bogus check cases, especially involving insufficient funds, are presumably not prosecuted criminally, businesses that receive bogus checks have the option to refer the case to the District Attorney for collection or prosecution. If convicted of passing a bogus check, the defendant, in addition to the court costs outlined above, must pay restitution to the victim and fees to the District Attorney. These fees add up quickly; one man in Tulsa County, who was indigent and whose only source of income was Social Security, was charged $1,062 in restitution and District Attorney fees for two bogus checks written to grocery stores totaling $123.27.8 These fees are added on top of the court costs and other fees that are charged on every criminal case. In this case, the man’s public defender successfully argued against the level of restitution, and the judge lowered it to $300. Relying on heavily burdened public defenders to provide accountability in such situations, however, undoubtedly allows most cases like his to fall through the cracks.
For a person living on a poverty-level fixed income, any unexpected expense can derail even the most careful budget; about one in eight Oklahomans has no savings or negative net worth, and 60 percent of Americans can’t afford a sudden $500 expense.9 Punishing such a person with restitution and DA fees that total eight times the value of the original bogus checks strains the idea of justice. However, as discussed further below, District Attorney offices throughout the state have come to rely heavily on the revenue generated from bogus check cases and other fees charged to criminal defendants.
Failure to pay warrants and debtor’s prisons
When a defendant is sentenced, the court is required by statute to hold a “Rule 8 hearing” to determine the defendant’s ability to pay the costs related to their case.10 In practice, many – if not most – courts do not hold such hearings.
Instead of a hearing in Tulsa County, for example, a document that details court costs due is submitted to the Court Clerk’s office, which sets up a payment plan for the defendant if he or she is unable to pay the full amount. Although judges are required by law to consider a defendant’s ability to pay during the Rule 8 hearing, a team of researchers from the University of Tulsa Law School “found no evidence that the [Tulsa County District Court’s] sentencing judges hold hearings regarding ability to pay as a matter of regular practice.”11 Interviews with Court Clerk offices in other districts indicate that similar processes are followed across the state. Most of the collections process is administered through that office, with little involvement from the courts.
Inevitably, many of those with large sums of fines and fees fail to pay their legal financial obligations, even when they’re put on payment plans. Court Clerks across the state have developed their own systems to administer the enforcement of court costs in the way they see fit.
In Sequoyah County, for example, defendants who set up payment plans are required to pay at least $25 per month. If they miss three consecutive payments, a warrant is issued for their arrest and their account is sent to a collection agency, which adds a 30 percent fee on whatever it collects. A warrant fee of $50, plus $5 for the Court Clerk and $25 for the Oklahoma Court Information System, is also added to their balance. After they are arrested, they must pay $250 towards their costs to get out of jail and go before a judge. The “cost docket,” in which a judge sets up new payment plans or holds failure to pay hearings, includes about 150 defendants each week. An associate clerk said that the county jail sets aside a small number of beds for those arrested on failure to pay warrants, but remarked, “If our sheriff put everyone in jail that had a failure to pay, we wouldn’t have any room in our jail.”12
What little data is available indicates that failure to pay is a major contributor to jail admissions in Oklahoma. In Oklahoma County, there were 1,052 bookings solely for failure to pay or failure to appear in 2015, and those booked for these offenses stayed an average of 33 days, compared to 21 days for the general population.13 Rule 8 hearings are held only after an individual has failed to pay. In Tulsa, 29 percent of jail bookings involved failure to pay in July 2013.14
During his testimony at a 2014 Oklahoma legislative interim study, Judge Don Easter estimated that Oklahoma County had a balance of over $100 million due on 124,000 cases since 2000.15 He detailed many of the difficulties that he saw criminal defendants face in paying their court costs:
“Very few people come in and pay their court costs upfront, particularly people who are incarcerated. We have people who are incarcerated who can’t pay until they get out. We have people who are on Social Security and Veteran’s Administration benefits, which are deemed indigent. We have mental health patients, a bunch of mental health patients on the criminal docket who couldn’t hold a job if their life depended on it. And then we have the balance of the people who are trying to make a monthly payment who have a felony record, who have a hard time finding a job that makes enough money to support a family and make any kind of a sizeable dent in the amount that they owe to the criminal court system.”
Judge Easter compared collecting court costs to babysitting, saying that the cost dockets see the same people repeatedly for failing to pay. At the time of her interview, Rosalind Hall, the Tulsa woman mentioned above, had been repeatedly arrested and spent nearly 18 months in jail, a few days at a time, for failure to pay over the course of many years, despite never being sentenced to jail for failure to pay.
A two-tiered justice system
No comprehensive data is available on the number of Oklahomans affected by court debt and to what extent, but District Court caseloads give reason to believe that the problem is widespread: About 56,000 felony cases, 60,000 misdemeanor cases, and 216,000 traffic cases were filed in Oklahoma District Courts in just one year, FY 2015.16 Although many cases certainly involved defendants with several cases against them, even conservative estimates would amount to tens of thousands of indigent defendants burdened with enormous financial obligations to the courts each year.
The hundreds or thousands of dollars in legal financial obligations that accompany felony and misdemeanor crimes create a dynamic in the justice system that is all too familiar to those in poverty: those who have financial resources are treated one way, and those who do not are treated another way. A wealthy individual who causes a terrible accident while driving under the influence of alcohol may pay his financial obligations, serve his sentence, and be absolved in the eyes of the courts, never to suffer any further legal consequences. Meanwhile, an individual living in poverty who fails to pay a traffic ticket for speeding – when the hundreds of dollars equal most of her disability benefits check – runs the risk of being repeatedly arrested and jailed for failure to pay. They risk losing their driver’s license, limiting their ability to support themselves and driving them further from full participation in society. If convicted of a felony, Oklahomans can be denied the right to vote until they satisfy their debt to the courts.17 Although the criminal justice system is theoretically predicated on the idea of equal treatment under the law, in truth the financial situation of a defendant has an enormous impact on the length and severity of his or her punishment.
- Bureau of Justice Statistics, “Defense Counsel in Criminal Cases,” November 2000, http://www.bjs.gov/content/pub/pdf/dccc.pdf
- Bernadette Rabuy and Daniel Kopf, Prison Policy Initiative, “Detaining Poor: How money bail perpetuates an endless cycle of poverty and jail time,” May 10, 2016, http://www.prisonpolicy.org/reports/incomejails.html
- Nicholas Kristof, New York Times, “Is It a Crime to Be Poor?” June 11, 2016, http://www.nytimes.com/2016/06/12/opinion/sunday/is-it-a-crime-to-be-poor.html
- Interim Study 14-033, October 21, 2014, http://www.okhouse.gov/committees/showinterimstudies.aspx
- Office of Justice Programs, “OJP Fact Sheet: Indigent Defense,” December 2011, http://ojp.gov/newsroom/factsheets/ojpfs_indigentdefense.html
- Bernadette Rabuy and Daniel Kopf, Prison Policy Initiative, “Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time,” May 10, 2016, http://www.prisonpolicy.org/reports/incomejails.html
- U.S. Department of Health and Human Services, “Poverty Guidelines,” January 25, 2016, https://aspe.hhs.gov/poverty-guidelines
- Restitution schedule provided by Tulsa County Public Defender’s Office. Other case information obtained from OSCN case record, http://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=CM-2014-4045&cmid=2750999
- Corporation for Enterprise Development, “Assets & Opportunity Scorecard,” 2011, http://scorecard.assetsandopportunity.org/latest/measure/extreme-asset-poverty-rate, and Bankrate, “Survey: How Americans contend with unexpected expenses,” January 6, 2016, http://www.bankrate.com/finance/consumer-index/money-pulse-1215.aspx
- 22 OK Stat § 18, App. Rules of the Court of Criminal Appeals, http://www.okcca.net/online/rules/rulesrvr.jsp
- Quinn Cooper, Lindsey Fine, Sarah Harp, and Clint Wilson, Lobeck Taylor Family Advocacy Clinic, “Assessing the Cost: Criminal Fines, Court Costs, and Procedure versus Practice in Tulsa County,” April 2014, http://law.utulsa.edu/wp-content/uploads/sites/3/2014/12/Final-Report-Assessing-the-Cost.pdf
- Personal communication with Sequoyah County Clerk’s Office, August 22, 2016
- Nancy Fishman, et al., “Report to the Greater Oklahoma City Chamber Criminal Justice Task Force,” December 2016, http://www.smartsafeokco.com/Websites/okcountycriminaljustice/images/okcchamber_VERA_report_12-14-16.pdf
- Casey Smith and Cary Aspinwall, “Increasing number going to jail for not paying fines,” Tulsa World, November 3, 2013, http://www.tulsaworld.com/news/local/increasing-number-going-to-jail-for-not-paying-fines/article_8b8d2229-c7ad-5e7f-aea2-baeb13390880.html
- Interim Study 14-033, October 21, 2014, http://www.okhouse.gov/committees/showinterimstudies.aspx
- Supreme Court of Oklahoma, “2015 Annual Report,” http://www.oscn.net/static/annual-report-2015.pdf
- Alliance for a Just Society, “Disenfranchised by Debt: Millions Impoverished by Prison, Blocked from Voting,” March 2016, http://allianceforajustsociety.org/wp-content/uploads/2016/03/Disenfranchised-by-Debt-FINAL-3.8.pdf