By: LeGrand Northcutt

Across the country, it is perfectly legal to imprison a person simply because they have not paid a fine.[1] In some states, this practice is so commonplace that state law allows a defendant to deduct money from his fine for every day he is in jail for nonpayment.[2] The implications for putting a defendant in jail simply because he does not pay his fine, a valid exercise of placing someone in contempt, become complicated if he cannot pay his fine because he is unemployed, on a fixed income, or otherwise poor. The Federal Reserve Board estimates that 40% of Americans cannot afford an emergency $400 expense.[3] When fines for class three and four misdemeanors in Virginia carry fines of $500 and $250 respectively, [4] the amount of people who could be, and ultimately are, imprisoned because they are poor is startlingly significant.

The good news is that there are protections in place to ensure that a poor defendant is not needlessly placed in jail because he cannot pay his speeding ticket.[5] Bearden v. Georgia established that, to comply with the constitution, judges must inquire into a defendant’s ability to pay a fine before he is imprisoned for failure to pay.[6] If the judge determines that he cannot pay his fine, “the court must consider alternative measures of punishment other than imprisonment.”[7] On top of constitutional protections, some state laws, including Virginia’s, state that judges “may require [a defendant] to show cause why he should not be confined in jail or fined for nonpayment.”[8] If it is determined that a defendant is not intentionally refusing to obey the order of the court, then the judge “may enter an order allowing the defendant additional time for payment, reducing the amount due or of each installment, or remitting the unpaid portion in whole or in part.”[9] Based both on the Constitution and Virginia state law, no defendant should be put in jail for not paying a fine unless they purposefully choose to eschew it.

There’s just one problem with these protections against debtor’s prisons: unlimited discretion. Unfortunately, the constitutional protections articulated by the Supreme Court in Bearden lack any specific guidance as to what an “inquiry into the reasons for the failure to pay” must look like.[10] In the day-to-day lives of poor people, the judges who do comply with the Constitution often determine whether a defendant can pay a fine based on completely arbitrary factors such as whether he smokes, whether he has cable TV, or even the shoes that he is wearing.[11] Furthermore, many poor people report being put in jail without any determination of whether they can pay in blatant violation of the Constitution and Bearden.[12]

On top of the lack of enforcement of Bearden, Virginia’s state law allows judges to ask for an order to show cause, but does not require them to do so.[13] Furthermore, the defendant does not have the right to ask the judge for such an order.[14] There is also no infrastructure for any kind of reporting on who is placed in jail for failure to pay fines, how long they are kept in jail, or when they are released.[15] The result is that the functional equivalent of debtor’s prisons are popping up all over the country, especially as criminal-justice debt is increasingly becoming a way to fund American Cities.[16] Poor people are charged with a misdemeanor or traffic violation, and subsequently put in jail because they are too poor to pay their fines within the required time.[17] The problem is that the current protections leave too much room for a judge’s biases to determine if someone is going to jail or not. In a time of mass incarceration, our jails should not be filled with people who are not a threat to society. In an age where debtor’s prisons have been abolished, it should not be a crime to be poor.

[1] See Va. Code § 19.2-358(B), (E) (2018).

[2] See N.M. Stat. Ann. § 33-3-11 (LexisNexis 2019).

[3] Matthew Shaer, How Cities Make Money by Fining the Poor, N.Y. Times (Jan. 8, 2019), https://www.nytimes.com/2019/01/08/magazine/cities-fine-poor-jail.html?em_pos=large&emc=edit_ma_20190111&nl=magazine&nlid=76745379edit_ma_20190111&ref=img&te=1.

[4] Va. Code § 18.2-11(c), (d) (2000).

[5] See Peter Edelman, Not a Crime to be Poor: The Criminalization of Poverty of in America 5 (2017) (citing Bearden v. Georgia, in which “[t]he Supreme Court decided…that ‘punishing a person for his poverty’ violates the equal protection clause” of the Constitution).

[6] Bearden v. Georgia, 461 U.S. 660, 672 (1983); Peter Edelman, Not a Crime to be Poor: The Criminalization of Poverty of in America 5 (2017).

[7] Bearden v. Georgia, 461 U.S. 660, 672 (1983).

[8] Va. Code § 19.2-358(A).

[9] Va. Code § 19.2-358(C).

[10] See Bearden v. Georgia, 461 U.S. 660, 672 (1983).

[11] Peter Edelman, Not a Crime to be Poor: The Criminalization of Poverty of in America 5 (2017).

[12] Peter Edelman, Not a Crime to be Poor: The Criminalization of Poverty of in America 5 (2017).

[13] Va. Code § 19.2-358(A) (“the court… may require”).

[14] Va. Code § 19.2-358(A) (Allowing only the Commonwealth, localities within the Commonwealth, or the court to request that the defendant “show cause why he should not be confined in jail or fined for nonpayment”).

[15] See generally H.B. 2121, 2019 Gen. Assemb. Sess. (Va. 2018) (requiring various reporting of data on defendants who are “held in custody pending trial or hearing for… civil or criminal contempt). At the time of publishing, H.B. 2121 has been passed by indefinitely in subcommittee along party lines. The Senate companion bill, S.B. 1687, has been referred to the Committee on Courts of Justice.

[16] Matthew Shaer, How Cities Make Money by Fining the Poor, N.Y. Times (Jan. 8, 2019), https://www.nytimes.com/2019/01/08/magazine/cities-fine-poor-jail.html?em_pos=large&emc=edit_ma_20190111&nl=magazine&nlid=76745379edit_ma_20190111&ref=img&te=1.

[17] See Matthew Shaer, How Cities Make Money by Fining the Poor, N.Y. Times (Jan. 8, 2019), https://www.nytimes.com/2019/01/08/magazine/cities-fine-poor-jail.html?em_pos=large&emc=edit_ma_20190111&nl=magazine&nlid=76745379edit_ma_20190111&ref=img&te=1 (telling the stories of several residents of Corinth, Mississippi who were put in jail because of unpaid court debt).