The Monetization Of Justice

In a prior post, I wrote about the steps that the both the Biden administration and a number of states were taking in order to end the private prison racket. But what Democratic Representative Bonnie Watson Coleman describes as the “monetization of justice” extends well beyond private prisons and infects so much of our criminal justice system. And it is one of the most insidious elements of the institutional racism that exists in this country.

Perhaps the most egregious and abused instrument of the monetization of justice is the entire concept of civil asset forfeiture, which allows police to seize any property they believe was involved in a crime, often without the owner of the property ever being convicted of or even charged with a crime. According to the Institute of Justice, local, state, and federal governments have used civil asset forfeiture laws to seize nearly $70 billion worth of goods over the last 20 years. In South Carolina, police made nearly $18 million from property seized from just 3,200 people in just 3 years. One study found that over 800 of the nation’s municipal and county governments “relied on forfeiture profits as a necessary part of their budget”. In Texas, some police departments rely on forfeiture for over 40% of their budget. Another study found that police increase their asset seizures as their budgets decrease.

These seizures rarely target big-time criminals. Half of all currency seizures are for amounts less than $1300. In South Carolina, for instance, Blacks were the victims of forfeiture 65% of the time despite being only 13% of the state’s population. In addition, 40% of those who had assets seized were never convicted of a crime, but it would often take years for them to recover even a portion of the value of what they had had seized. In fact, most never received the full value. The abuses are legendary. One couple lost the house they had lived in for 46 years simply because their son sold $60 worth of marijuana on the front porch. Often forfeitures are driven by a police department’s “wish list” for equipment and police training on forfeiture focuses on “maximizing profits, defeating the objections of so-called ‘innocent owners’…,and keeping the proceeds in the hands of law enforcement”.

States that have tried to crack down on forfeiture have been sabotaged by the federal government’s “equitable sharing program”. This program allows state and/or local law enforcement to turn over seized property to the federal government and get back 80% of the proceeds. Over 40% of police departments participated in equitable sharing and hundreds of departments received over 20% of their total funding from the arrangement. Equitable sharing also provides the federal government with leverage to get police to focus on its own federal criminal justice priorities as opposed to the those of the individual states’. As the Harvard Law Review notes, “[E]quitable sharing nonetheless threatens state sovereignty by coopting local authorities into pursuing federal civil forfeitures through irrefusable funding offers. Many local agencies are functionally unable to decline the hundreds of millions of dollars that come with equitable sharing when faced with significant budget cuts”.

In 2019, the Supreme Court finally curbed some of the worst abuses of civil asset forfeiture when it ruled that state and local governments can not permanently seize assets without out least charging the owners with a crime. But, as a director at the Institute of Justice notes, civil asset forfeiture laws “still stack the deck against property owners and give law enforcement perverse financial incentives to pursue property over justice”.

The 2019 Supreme Court ruling was based on the idea that forfeiture without the charging of a crime violated the Eighth Amendments prohibition on “excessive fines”. But excessive fines are also another consistent area where government monetizes justice. The protests in Ferguson, Missouri in 2014 highlighted the fact that police viewed Black residents in Ferguson “less as constituents to be protected than as potential offenders and sources of revenue “. In 2013, police issued nearly 33,000 arrest warrant for non-violent offenses in a town that has just over 21,000 residents. The fines associated with those offenses made up over 10% of the city’s budget.

Not much has changed since 2014. Just last week, a Black active-duty Army lieutenant was pepper-sprayed by a Windsor, Virginia cop despite following the policeman’s every order in yet another traffic stop that escalated into violence with an unarmed Black man. As it turns out, Windsor is notorious for “an approach to traffic enforcement that pads the tiny town’s budget but which Black residents suspect disproportionately targets minorities”. Windsor, a town with just 2,600 residents, managed to generate $160,000 in revenue from fines, again accounting for nearly 10% of the town’s entire revenue. This approach mirrored another Virginia town, Hopewell, which in 2012 managed to collect $2 million in traffic fines simply due to a one-mile stretch if I-95 passing through the town.

In that same year, 2012, fees from state and local government generated over $15 billion. According to the New York Times, “One percent of counties took in the equivalent of 90 percent of operating law enforcement budgets in fines and forfeitures in 2012. Georgetown, La., for example, collected 92 percent of its general revenues in fines in 2018”. In addition, defendants are charged fees at almost every step of the criminal justice system — for simply appearing in criminal court, for crime lab fees, and even for jail time. Even on probation, ex-cons will be charged for things like drug tests and electronic monitoring. One study found that over 80% of those leaving prison owed money. With the minimal chances of finding a job immediately after release, those fines just continue to increase as interest accrues, often at exorbitant rates. These outstanding fines destroy credit scores and, in most states, having unpaid fines may result in a suspension of your driving license, making it even more difficult to get a job and pay the outstanding fines. Worse, unpaid fines can even result in incarceration. In 2018 in Texas, there were 450,000 people in jail simply because of unpaid fees, literally debtor prisoners.

In 2020, in Florida, Republican legislators used the issue of outstanding fines to deny voting rights to thousands of ex-felons, despite the state’s citizens having overwhelmingly voted to restore those voting rights in 2018. Besides effectively instituting a poll tax, Florida could not even tell ex-felons how much they still owed the state which meant that potential voters had to weight the fact that they could again be charged with a crime if they did vote but still had outstanding fines. And, once again, it was poor and minority populations who were most adversely effected.

Voting rights and the monetization of justice intersect in another, entirely different, way. The explosion of the incarceration state has meant an expansion of prisons, primarily built in less densely populated, more rural areas. For these prison towns, that means jobs but it also means extra political power because those prisoners are counted as residents of that district even though they are ineligible to vote. As the NY Times writes, this effectively amounts to a “prison gerrymander” which distorts our electoral process by “artificially inflating the population of places where prisons are, and artificially decreasing the population of the places where prisoners come from…In one Rhode Island House district, for instance, prisoners account for nearly 16 percent of the population, even though only 4 percent of them are from that district”. One study showed that nearly 6% of state House districts in Connecticut would not have met the minimum population required without including their prison population. If the state stopped counting prisoners where they were incarcerated but instead used their actual domicile before conviction, then 22 districts would have to be redrawn. Since federal and state money is often allocated by population, these prison gerrymanders also mean these largely rural areas that house prisons enjoy more economic as well as political power than they actually deserve.

Bail is yet another example of how the monetization of justice works against the least among us. On any given day in this country, around half a million people are simply languishing in jail, waiting for their day in court, simply because they can not post bail. Because of the delays in actually obtaining justice in this country, the inability to post bail will usually mean the loss of a job, especially if you are actually innocent and wish to take your case to trial. One individual in New York City who was determined to take his case for stealing a backpack to trial spent three years in jail because he could not post bail. Prosecutors eventually dropped the case but the man had difficulty resuming a normal life after his stint in jail and committed suicide two year after his release.

Being held in prison also exerts additional pressure on the defendant to quickly take a plea bargain that may allow them to get out of jail and potentially resume their life, even if they are actually innocent. Worse, one study has shown that the inability to post bail actually increases the defendant’s chance of being convicted. In addition, those held on bail were also more likely to become involved in criminal activity in the immediate years after their release, apparently because of the connections that they had made while they were in jail. And this is all without taking into account the racist nature of judges’ bail decisions which has also been widely documented in numerous studies over the years.

The final way in which the monetization of justice discriminates against the poor is through access to legal counsel. New York’s top public defender has described the public defender system in this country as “a huge national failure”. Public defender systems are woefully underfunded and brutally overworked. In New Orleans, for instance, 60 public defenders manage 20,000 cases per year. In the largest counties in this country, around 80% of defendants who are charged with violent crimes could not afford an attorney. Oftentimes, defenders meet with their clients just minutes before hearings and there are many documented cases of court-appointed lawyers providing a woefully inadequate defense. With both defender and defendant knowing full well the defender does not have the time to mount a truly robust defense, the pressure on both to reach a plea bargain is increased.

When it comes to civil litigation, there is not even a right to a legal counsel. In over 75% of civil trials in this country at least one litigant is not represented by a lawyer. According to the New Republic, “no fewer than 71 percent of low-income Americans experience at least one civil legal problem per year, yet 86 percent of them receive either minimal or no legal help to deal with it”. These civil case run the gamut from debt collection to foreclosure or eviction to divorce and personal injury lawsuits. Trying to navigate a civil trial without an attorney is almost impossible. As the former head of the Legal Services Corporation noted, “People who don’t have counsel are forced to navigate a legal system that was created largely by lawyers, for lawyers, on the assumption that everybody has a lawyer”.

To be fair, there has been some real progress over the last few years in addressing the abuses with civil asset forfeiture and bail. Nebraska, New Mexico, and North Carolina have actually eliminated civil asset forfeiture and, in the aftermath of the 2019 Supreme Court ruling, many states are now considering legislation that would further limit the process or abolish altogether. Similarly, California eliminated cash bail in 2018 and a number of other states have undertaken significant reforms of their bail systems. But, as criminal justice reform moves forward, understanding the true scope of how our justice system has been monetized and how that monetization supports institutional racism as a whole will be critical in developing the reforms necessary to truly reaching equality of justice.

Originally published at https://thesoundings.com on April 18, 2021.

Thoughtful discussions on politics and economics with some sidelights in photography and astronomy.

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