Alexes Harris' 'A Pound of Flesh' explores the damaging practice of legal financial obligations
In August of 2014, while unrest gripped Ferguson, Missouri, in the wake of Michael Brown’s death by local police, University of Washington sociologist Alexes Harris was writing her new book. When a Department of Justice investigation discovered racial disparities in Ferguson’s law enforcement practices and concluded that those practices were “shaped by the City’s focus on revenue rather than by public safety needs,” it shed a national spotlight on a disturbing pattern of extractive and exploitative policing in the midwestern American city.
But as Harris writes in her recent book, “A Pound of Flesh,” strapping defendants with so-called legal financial obligations that many can’t pay is a widespread and legally justified practice across the country. In some counties in Washington state, for example, a defendant can be charged for a court-appointed public defender, a jury, a DNA test, even their own incarceration. From there, costs continue to mount: a 12 percent interest rate accrues on unpaid debt; collection fees are charged.
What emerges in Harris’ book is a labyrinth of costs and fees and surcharges that the criminal justice system levies on defendants. In many ways, Harris argues, to be a poor defendant is to be locked, sometimes indefinitely and always literally, inside this complicated maze with little hope of escaping.
Harris brings this system of monetary sanctions in Washington state to light in “A Pound of Flesh.” In so doing, she is forcing attention on a widely unknown and little understood mechanism of the criminal justice system.
In a written interview with Real Change, Harris explains monetary sanctions, who they affect and how they come to function as a two-tiered system of justice — one tier for the rich who can pay, the other for the poor who cannot.
What are LFOs and how common are they in Washington state?
People convicted of felonies receive a host of sentences. In addition to jail or prison, they oftentimes receive a sentence including community supervision or probation that requires monthly check-ins. They might have community service, drug and alcohol evaluation and treatment, victim panels and various behavior modification classes. In addition to all of these sentences, they receive fines, fees, surcharges, assessments, with interest and collection fees.
In Washington state these are called Legal Financial Obligations or LFOs. Fines specifically have existed since the inception of our criminal justice system. The fines are viewed as an additional punishment connected to the crime of convictions. The user fees are imposed for essentially services rendered. The courts are charging people for using court time, for being booked into jail, for the cost of their defense and the cost of their prosecution and cost of housing in jail or prison.
Once someone receives a conviction, serves their confinement time, they then leave to face society with a host of collateral consequences that includes the loss of right to serve on jury, vote, carry a weapon, run for office, access some government financial support, [and includes] discrimination from employers and housing managers. In addition, they frequently face a great deal of financial debt — a financial sentence that continues to grow as a result of interest and collection charges.
The monetary sanction system you describe in the book is expansive. What are the various ways that courts levy LFOs on people charged with a felony?
In Washington, we have a mandatory minimum of $600 per felony conviction. There is a $500 Victim Penalty Assessment (VPA) and a $100 DNA cost. People can also be charged for the cost of their public defense. Furthermore, people are charged 12 percent interest on all their fiscal penalties, plus a $100 annual collection surcharge. For the vast majority of already poor, unemployed and under-educated people who make contact with our criminal justice system, paying these fiscal penalties becomes a permanent punishment.
How come there are so many LFOs and what purpose do they serve?
The rationale for LFOs is twofold. First, policymakers and court officials suggest that the system of monetary sanctions, the sentencing practice of imposing fines, fees, surcharges, interests on defendants, creates a system of accountability. In a paternalistic way, officials view each payment as a chance for defendants to express their remorse, to demonstrate that they are moving forward as productive citizens.
Second, court officials argue that this system allows the courts to recoup fiscal costs that exist as a result of defendants’ criminal behavior. Basically the courts view the charges as “you do the crime, you pay the fine.”
What is the relationship between LFOs and the ballooning criminal justice system in this country?
My book builds on existing research that examines how expansion of the contemporary criminal justice system has led to mass felonization of the U.S. population. Prior work that uses the term Jim Crow focuses primarily on drug convictions and racial disproportionality. My research adds to existing analyses by showing how the system not only impacts people of color disproportionately but is also a two-tiered system of justice. One system exists for the wealthy: they receive a felony conviction, do their time in jail or prison and pay their fines and fees. They then walk away from the system ready to re-engage with society. Yes, they have some of the related collateral consequences but experience them in a very different way than the poor.
In contrast, people who are poor, who are getting by paycheck to paycheck, find themselves tethered to the criminal justice system because they cannot afford to pay off their monetary sanctions in full. Debtors are required to regularly report to the court clerks about their living arrangements, their employment and their expenses. If they fail to make payments, or make insufficient payments, they could receive summons to court or warrants and even become incarcerated. This two-tiered system of justice creates a very different experience of punishment and justice for the wealthy and the poor.
The average amount of LFO charges per defendant in Washington state is $1,347, excluding restitution. Respondents from your surveys for this book had much higher legal debts. What realistic options do poor defendants have to pay that debt off?
It is hard to say this, but there are not a lot of options. They can try and enter into a payment plan with their local county clerk’s office. Many say that they are willing to create realistic payment plans for people. If they were convicted prior to 2000 then the debt may only be active for up to 20 years post-conviction and they can seek relief at the end of that time period. They should try to make a payment every month, whatever they can pay, and keep records of each payment in case they are summoned to court. If they receive a court summons they should appear. If they do not, many courts will issue warrants for arrests and these could lead to incarceration.
What is the best, most precise way to understand the scope and magnitude of the consequences of LFOs on poor people convicted of felonies in Washington state?
The present-day system of monetary sanctions is neither as physically egregious nor as publicly known as the systems of convict leasing and forced labor camps, but it has eerily similar practices, and the consequences are the same for those with criminal convictions: political, social and economic marginalization for life. Thus, the linkage between social control institutions that over-select for the poor and for people of color is cemented not only in the history of criminal justice practices in the United States but also in its current practices. The presence of monetary sanctions highlights the current iteration of the United States system of social control of the poor and socially marginalized. Consistent throughout the history of the United States has been an inextricable and insidious link between social control, class, race and economic burden, be it labor or debt.
You write: “LFOs create prisoners of debt.” Can you, for our readers, put a face to a prisoner of debt from your research?
One of the most memorable people I interviewed was Vilma. I often think about her because she could be any one of us. Any of us could find ourselves in her situation. She was in a long-term domestic violence relationship with her husband. On the day she was arrested, she ended up being the final aggressor and shot her husband. She went to prison for eight years and came out with over $50,000 in debt, mostly in restitution for his hospital bills. She also owed him a great deal in child support for the time she was incarcerated and unable to take care of her children. In her absence, her ex-husband’s mother took care of the children.
At the time of our interview, she was in a relationship with a new partner, a relationship that she described as healthy and loving. They had a child together. Her partner’s brothers had offered to buy them a house and they would make the payments with the hope of them one day owning their own property. However, one of the brothers, an attorney, found out she owed legal financial obligations (LFOs) and rescinded the offer. He said that “she will never pay those off.” Essentially, she was deemed a financial liability. She and her partner had decided that they would not get married because of her legal debt.
Not only do LFOs affect people’s financial stability and tether them to the criminal justice system, but the debt negatively impacts individuals’ relationships with their family members, partners and children. It teaches them to envision a lifelong position of debt to the state. And it makes them a financial liability that makes others afraid to engage with.
What does it mean to be a “willful” non-payer of LFOs?
This is a good question. There is no clear legal definition of “willful” non-payer and this is one of the key problems. It technically means someone who has LFOs, has the ability to make payments but is willfully not making payments. If someone is assessed as a “willful” non-payer, then they can be sent to jail for up to 60 days per violation of their sentence (that is, nonpayment). However, judges vary on the types of criterion they use to assess whether a person is a “willful” nonpayer. Some judges I have observed ask nonpaying defendants the cost of their manicures, how many packs of cigarettes they buy each month, and how much tattoos cost to determine whether or not someone is a “willful” nonpayer. While other judges determine this legal criterion [based on whether] a defendant has been assigned a public defendant.
This system has far too much discretion so there is no equal system of punishment across one state, much less within one county. During my observations in court, I observed a defendant who was suffering from stage 4 cancer, another who was homeless and too many to count who had significant physical and mental limitations. That all of them were found to have the ability to make LFO payments makes it hard to understand the assessment and enforcement of LFOs as anything but additional punishment specifically for the poor. Court officials viewed defendants’ attempts to be accountable by trying to make payments as paramount, even if that meant begging for money by the side of the road. We need clear legal criteria that lay out how judges should determine whether or not someone has the ability to make payments on their LFOs.
The gap between the lives of criminal justice bureaucrats — the enforcers of LFOs — and the lives of the defendants they sentence is huge. What problems arise from this dynamic?
Many court officials do not see themselves or their family members in the lives of the poor people they encounter. There is a lack of understanding of what ability to pay means for many people. During the course of my research, many court officials expressed a commitment to the idea that all defendants were personally responsible for their past and future behavior. Many also believed that defendants were responsible for the costs associated with their crimes, including the state-imposed user fees.
Underlying these beliefs was an ideology about personal responsibility. [Court officials] frequently characterized defendants’ ability to make payments as depending on the extent to which they were willing to make a “good faith effort” at redeeming themselves. This ideological orientation was fully consistent with the intent of the state’s LFO legislation, which in fact explicitly states: “Payment of legal financial obligations is an important part of taking personal reasonability for one’s actions. The Legislature therefore supports the efforts of county clerks in taking collection action against those who do not make a good faith effort to pay.” Even people who were unstably housed or homeless were not exempt from the expectation that they were responsible for meeting their LFOs.
How does the criminal justice system justify sanctioning poor defendants who realistically cannot pay LFOs?
There is a great deal of rhetoric in contemporary American society about personal responsibility and accountability in multiple arenas from health care to educational costs to credit debt and now in the criminal justice system. What is interesting about monetary sanctions and the criminal justice system, similar to that of education and even health care, is that we have shifted what should be a guaranteed right or governmental responsibility to the people who are processed through the system. As a nation we pay taxes and we should expect a certain set of provisions from our government. These services should include education, health care and even a criminal justice system that are effective, efficient and ethical. These necessary services create safe, healthy and productive societies. Yet individuals’ outcomes in their lives, their life chances, happiness, stability and health, are dependent on their wealth.
You mention at the beginning of your book that your dad wanted you to write the next great American novel. Instead, you wrote a different kind of American story, one that deals with poverty and punishment. What has writing this book taught you about this country?
Reflecting back, I think it has taught me, or reinforced to me, how divided our country is by class. In particular, my research has shown me that within our institutions people receive very different modes of treatment and outcomes based on how much money they have. And I teach about social stratification and inequality in our criminal justice system, education, and health care, so theoretically and according to data, I know this. But to see it up close, to see how differently poor people experience the criminal justice system and are tethered to the institution for the rest of their lives is horrible. And to see that some court officials do not care, that they think this is justified under the name of “punishment,” is horrible and heartless. As I write in the book, this system of monetary sanctions is inefficient in terms of bringing in money for the state, it is an ineffective tool for punishment, and it is an unethical system in that it differentially punishes poor people from those with financial means.