Monday, August 3, 2015

Court's "User Fees" Trap Ex-Felons in a Prison of Debt

 Kim writes: "Jason Hill has been free, sober and out of trouble for six years, working, raising a son with his fiancée and seeing his mother through her last days. Yet he maintains the nervous hands and simmering gaze of a man just released from prison. His record seems to cast a permanent gloom over his prospects."

Jason Hill, an ex-felon in Spokane, has worked at the same convenience store for a decade, still at the minimum wage. (photo: Jerome A. Pollos/Al Jazeera America)
Jason Hill, an ex-felon in Spokane, has worked at the same convenience store for a decade, still at the minimum wage. (photo: Jerome A. Pollos/Al Jazeera America)

Court's "User Fees" Trap Ex-Felons in a Prison of Debt

By E. Tammy Kim, Al Jazeera America

03 August 15

  In Washington, formerly incarcerated men and women face massive debts and a 12 percent interest rate Hill has been free, sober and out of trouble for six years, working, raising a son with his fiancée and seeing his mother through her last days. Yet he maintains the nervous hands and simmering gaze of a man just released from prison. His record seems to cast a permanent gloom over his prospects.

“I’m doing better than a lot of other people are, because I do have a job,” he said, though his commute to the corner store where he works can be a challenge. He’s developed a strategy to reduce the risk of interacting with the police: walking, taking the bus or paying a trusted friend, a white man without a record, to give him a lift. On a scorching day in June, however, he made an exception: He accepted a ride to work in a car with out-of-state plates, a quick drive that takes him two hours by bus.

His fiancée disapproved of the offer, fearing for his safety, and that put him on edge. All the way there, he scanned the road for cruisers and pointed out the changing speed limits. Hill, who is of mixed race and tattooed, explained that riding in an unfamiliar car through heavily policed neighborhoods could attract unwanted attention.

From 2002 to 2009, Hill racked up two felonies for drug possession and unlawful possession of a firearm, two misdemeanors for driving with a suspended license and about 15 minor traffic violations. He’s avoided run-ins with the law ever since, yet his fear of getting stopped and arrested is understandable. It’s not a “guns and drugs” charge he’s worried about; it’s the unpaid fines and fees.

Although his crimes were victimless — no one was assaulted, no property damaged or stolen — Hill owes Spokane County and the state of Washington some $14,000 in fines and fees. The state’s annual interest rate on judgments is a borderline-usurious 12 percent.

In Washington, a state whose progressive reputation masks a tough-on-crime undercurrent, defendants and prisoners are charged “user fees” that fund the state and local systems designed to put them away. Those who do not or cannot pay are at risk of arrest and reimprisonment. It’s a national trend: In nearly every state, offenders pay for court costs, representation by a public defender, jail and probation, and fees are on the rise. The county clerk’s offices that depend most on these sums routinely refer to defendants as “customers” [PDF]

Since 2003, Spokane County, home to about half a million people, has more than doubled what it collects in these legal financial obligations, or LFOs, from criminal defendants. Under pressure from ex-felons and advocates, the newly elected county clerk and prosecutor have vowed to focus on collecting restitution (money to compensate victims) while making other fees less punitive, and a recent Washington Supreme Court decision may offer additional relief. Statewide, those with felony records owe an average of nearly $2,500 in LFOs [PDF].

Hill’s debt has bulged to the point that he can no longer keep track of how much he's being billed for which convictions. Every month, he pays $75 toward the $10,000 or so he owes for old misdemeanors and traffic tickets, accounts handled by Valley Empire Collection, a private agency contracted by the county’s lower level courts. Until he was asked to inquire for this story about his total obligations to Valley and to the Superior Court clerk’s office, which handles his felony debts directly, he had no idea what the total was. But he knew the drill: “As soon as I miss one, they can issue a warrant for my arrest.”

Back to jail

On a recent morning in Spokane County Superior Court, handcuffed men wearing prison orange were escorted, two at a time, from the downtown jail to be sentenced by Judge Harold Clarke. Every defendant that morning had opted for a guilty plea over trial, and they stood defeated, stiff as wooden planks. One prisoner cried — when the judge asked about his children, ages 5 and 7.

Each man was sentenced to jail time and at least $800 in LFOs: a $500 victims penalty assessment, $200 in court costs and $100 for a DNA test, per state statute. “I have no discretion on those,” the judge said.

Once or twice that day, Clarke seemed to take his lead from State v. Blazina [PDF], a state Supreme Court case from March that requires judges to consider the defendant’s current or future ability to pay before ordering fees and fines. If the ruling is properly adhered to, indigent defendants are charged no more than $800 per case in LFOs — but still at 12 percent interest, a rate set by statute during the inflationary 1980s. If they fail to pay, they can be arrested and thrown in jail.

Blazina would have helped Amber Holly, a 23-year-old who works 80 hours a week at a local grocery outlet. She recalled that during sentencing for her first drug felony, the lawyer she refers to as her “public pretender” neglected to seek financial mercy. Last year, Holly was released from prison with approximately $18,000 in debt, a third of which was for “meth cleanup fees,” though she never cooked the drug herself, she said. Her husband, Joshua Letchworth, separately owes about $104,500 in fees, interest and victim restitution for a burglary. Combined, the couple pays at least $240 every month toward their LFOs. “I pay that before I eat,” Holly said.

Criticism of criminal justice fees has grown in recent years, particularly since the killing of Michael Brown by a white police officer drew attention to Ferguson, Missouri, a city notorious for extracting money from low-income defendants of color. The National Association for Public Defense has observed that a small infraction can become “a life-changing struggle to satisfy ever-mounting debt. … Its effect can be generational and condemns the poorest communities to persistent poverty [PDF]." Studies from professors at the University of Washington [PDF], the ACLU of Washington [PDF] and the Brennan Center for Justice [PDF] show that these debts prevent former misdemeanants and felons from escaping poverty and moving on with their lives, not only because of what’s owed but also because of the accompanying stress and surveillance.

Jason Hill knows this well. When the police questioned him about a disturbance at his workplace a few weeks ago, “I was hoping that no warrants were gonna pop up,” he said. “I haven’t had any in a long time, but I missed that one [payment last year] and sometimes you have [a debt] from years ago — you find out they just forgot to clear it off their books.”

Tay Rowe has slowly paid off $3,500 in fines and restitution but still owes $1,200 in interest to Spokane County. He lives in an apartment with worn-out carpeting and a busted front door — one of the few places willing to rent to a man with a felony record. Rowe admits that he hasn’t consistently paid the county clerk, in part because his debt feels like “double or triple jeopardy.” He has been arrested and jailed four times on one delinquent account alone, he said. “I know a few people who have to go to jail once or twice a year because they’re not making their payments. … It goes back to the arrest and the racism focusing on blacks and minorities from the jump.”

Under state law, “willful nonpayment” of LFOs — that is, when someone has the ability to pay yet chooses not to — is a jailable offense. Technically, ex-offenders like Rowe aren’t arrested for failing to pay so much as failing to appear in court to justify why they haven’t been paying. Spokane County used to jail 30 people per night on unpaid LFOs, costing taxpayers $100 per day per person and adding to the severe overcrowding of the two local detention centers, said Breean Beggs, a civil rights attorney. This began to change in 2008, when intake officers implemented a “booking matrix” that has led to a practice of releasing low-level arrestees. Two years later, the state Supreme Court ruled in State v. Nason [PDF] that the Spokane County clerk had acted unconstitutionally by having ex-offenders agree to report to jail without a hearing in the event they fell behind in their LFOs.

In the first half of this year, just 1 percent of total bookings in Spokane County were related to unpaid fees or restitution. The Nason case is only partially responsible for this decline. According to assistant prosecutor John Grasso and Sheriff Ozzie Knezovich, failure-to-appear warrants and arrests are a low priority due to the jail’s limited resources. The local detention system is overwhelmed.

Spokane County has long housed two to three times as many inmates as its bed space permits. With no room to spare, it relies on an ersatz “overflow” facility: the Geiger Corrections Center, a midcentury barracks that lacks air conditioning.

From May to July of this year, four prisoners died inside the county jail, one from apparent suicide, one from a heart attack during booking and two from causes not yet determined. John McGrath, director of detention services, said the recent deaths bear no relationship to overpopulation, lack of staff or inadequate on-site medical services. Nevertheless, the Spokane Human Rights Commission has asked the U.S. Department of Justice to investigate — an embarrassing development for the county, which was awarded a prestigious MacArthur Foundation grant in May to audit criminal justice procedures and reduce the rate of incarceration.

The main jail is a sand-colored monolith just north of the Spokane River. On a weekday in June, new admitees were lying on cots in a glass enclosure, and upstairs, a thin, almost translucent young man appeared before court by video. “He must be just 18. He looks younger than my son who’s the same age,” said Sgt. Donald Hooper.

Hooper explained that small cells built for one man or woman now house two, sometimes three. The facility is so packed and understaffed that on Saturdays and Sundays, all inmates are on lockdown, not allowed to leave their cells for so much as a short walk. “When I first started,” he said, “I was naïve, thinking, ‘Well, they did a bad thing. They should do time.’ Now I think about the community spending $25 to $30 million per year for two facilities.”

A high-cost system

Since the war on drugs intensified in the 1980s, every aspect of the U.S. legal system has been inundated. Beat cops, prosecutors, judges and jail wardens have not been able to keep pace with the millions of men and women newly criminalized under state and federal statutes. Nor have the clerks of court, whose humble domain of paperwork and cash registers keeps the wheels turning.

Tim Fitzgerald, a retired Marine colonel, is the new clerk of Spokane County. He oversees 52 people and 240,000 cases in Superior Court, from divorces and adoptions to personal injury lawsuits and criminal prosecutions. There are four full-time employees whose sole task is to track and collect debts on some 36,000 outstanding felony LFOs via mail and phone and in person at the jail. They are also responsible for reporting delinquent obligors to the county prosecutor.

Fitzgerald keeps on hand a bulging binder labeled “LFOs,” the raw materials of his plan to improve the collection system and avoid incarcerating people in arrears. Based on consultations with advocates, the county prosecutor, public defender, sheriff and detention director, he expects to announce new procedures in the coming months. “We’ve been beaten hard over LFOs,” he said. “We’re trying to make it a better program, so that it takes care of the victims [awaiting compensation] but supports and helps defendants and serves the judicial process.”

From 2005 to 2014, the clerk’s office spent an average of $277,000 every year to collect about $2.3 million, annually, in LFOs, more than twice as much as in the early 2000s [PDF]. About 50 percent of the proceeds have gone to victim restitution, 30 percent to the county and the rest to the state general fund.

In the past, said Jeffry Finer, a social justice lawyer in Spokane, “The problem in our state has been the county court staff. It’s almost a bounty system. They were rewarded for grotesque collection practices. Someone who was trying to get their driver’s license back — you can’t get it if you have any LFOs. You don’t have a license, you drive, you get pulled over, you lose your job, you lose custody, and you go to jail. You go through it again.”

Hill remains wary of the courthouse and won’t so much as call the clerk’s office to ask about his fees, lest it trigger unwanted attention. His felony LFOs seem too massive to take on — a canyon to the manageable trench of his traffic tickets. Every third and fourth Thursday of the month, he makes an effort to deal with the latter. He gets a ride or walks three hours to Valley Empire Collection, the Spokane-based company that profits from the interest on these citizen debts. There Hill puts down $25 or $50 in cash at a time. He can’t deliver it all at once, as there’s rarely any slack in his weekly paycheck.

He and his fiancée depleted their savings earlier this year on an estimated $3,700 in application fees trying to find a place to live, not “another place with syringes and needles.” They were rejected from dozens of apartments and houses before getting approved by their current landlord.

Ten years ago, his boss at Hillyard Grocery did give him a chance and later rehired him after a stint behind bars. While Hill is grateful for the job, he feels that he’s being exploited, not only made to stock shelves and clean the bathroom but also tear out rotting walls and act as a bouncer. “I’ve gotten a concussion,” he said. “I’ve been hit on the head with a bottle of wine.” In July, his old temper flared up, and he was almost arrested for beating up a shoplifter. For all that, “I get paid the minimum wage. I bust my ass so much. … In 10 years, I’ve had three Saturdays off: when my mom passed away, my stepdad passed away and my son was born.”

Day to day, Hill experiences his LFOs not as a yoke but as a steady, permanent stone upon his chest. Without paying them off, he can’t expunge his record or renew his driver’s license. Nor does he have any other valid ID — a Social Security card or birth certificate, for example — to apply for government programs. It’s been years since he’s seen an eye doctor; his current pair of glasses is a contraption of old lenses and twisted wire.

Criminal justice debts “are impacting people at the bottom of the economic spectrum,” said Justin Pimsanguan, a childhood friend of Hill’s and member of I Did the Time, a group that organizes ex-felons. This past legislative session, he lobbied for a state bill that would have reduced the LFO interest rate, abolished discretionary fees and banned incarceration for nonpayment. After a promising start in the House, it was stripped and later discarded in the Senate.

Layne Pavey, another member of I Did the Time and co-founder of Revive Reentry Services, which provides housing and support to recently released prisoners, intends to try again for a legislative fix — to address LFOs as well as employment discrimination. “I got out [of prison] and found it was very difficult to get a job and find housing. I’m a middle-class, white female with a nonviolent crime, with a college degree and six years of sales experience, and I couldn’t get past the ‘box,’” she said, referring to the checkbox for indicating whether an applicant has a criminal record

Hill’s search for a new job, or at least a second job, continues. He recently got word of an opening at fast-food chain Jack in the Box. “I’m thinking about going back to flipping burgers. It’s an easier life. I can make more money,” he said. “I’m on Craigslist looking for other jobs, but if I don’t have a driver’s license, I can’t get anywhere.”

He said he was just a preteen when his legal troubles began — for stealing school supplies. “Money is the root of all evil. You don’t have it, you need more. You have it, you still need more.”

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