Legal Financial Obligations (LFOs) as Punishment Long After Time is Served

Once you’re labeled a felon, the old forms of discrimination — employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service — are suddenly legal. As a criminal, you have scarcely more rights, and largely less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it.

– Michelle Alexander, author of The New Jim Crow

One Strike and You Are Out?

The old biblical adage, “Whoever is without sin among you, let him be the first to cast a stone at her,” is something sorely lost in the corridors of the criminal justice system as we know it in American democracy. All these constitutional checks and balances were put in place to prevent citizens from succumbing to undue and unfair prosecution, and the courts have upheld many times the right of individuals who have served their time in prison to move on, move ahead.

However, times have changed, and there has been a huge push to privatize prisons, and to place filing fees, court costs and even the daily maintenance, upkeep and staffing of these halls of justice on the financial backs of the accused. It’s sometimes called a punishment society, and on top of that, when we start looking at African-Americans and Latinos in this snapshot of Mass Incarceration, we have the respective stats – black men are six times more likely to be incarcerated than white men, and Latinos 2.5 times more. The cost of their crimes also increases with the color of their skin.

According to Michael L. Vander Giessen in a recent Gonzaga Law Review article:

Sociologists suggest these increased penalties result from the racially or ethnically charged stigmas that commonly accompany drug crimes–stigmas that affect not only defendants whose ethnicity is consistent with the stereotype in question, but all defendants convicted are racially or ethnically stigmatized.

Drug Addiction Public Health Alarm, Not a SWAT Response!

For many lawyers, criminal justice experts, counselors and social workers, putting a triple-whammy on individuals who are chemically dependent and find themselves busted for possession, at the felony level, many times, is not how we should be using the law as a deterrent.

Other countries like Norway and the Netherlands see chemical dependency as a response to being disconnected from relationships, family, community, so those countries do not see addiction as a criminal justice problem.

Having an albatross of financial liability around your neck is what we do in Spokane County and in hundreds of other counties in the USA, creating a system where a person having served time in prison comes out and faces thousands of dollars in legal financial obligations while working at a low wage labor-intensive job at $10 per hour. Washington State has one of the nation’s highest debt burdens on those charged with crimes – over $2500 on average, though some released prisoners have tens of thousands of dollars they have to pay.

“They go underground for employment,” Connie Nelson of Shalom Ministries said. “They will do things to support families like burglary, theft, petty crime and dealing drugs.” This is everything the citizens of Spokane do not want our penal system to encourage.

Connie like so many others in the field of social work, counseling and law see many of the addicts on the streets forced there through legal/prescription drugs and America’s number one drug, alcohol: the liquor industry spends $2 billion a year on advertising to wrangle up $90 billion in yearly alcohol sales. Several sources put 500,000 as the number of alcohol dependent 9 through 12 year olds in this country.

Many I talk to in Spokane and elsewhere working on homelessness issues and recovery programs put the blame on the US medical community. Here’s a cold fact: 80 percent of the global opioid supply ($24 billion a year market) is consumed in the United States. Cancer meds are the number one class of pharmaceuticals, followed by pain drugs. “There were about 300 million pain prescriptions written in 2015,” says Irina Koffler, senior analyst, specialty pharma, Mizuho Securities USA.

Drugs, booze, lack of education, undiagnosed fetal alcohol affective disorder, functional illiteracy, childhood trauma, untreated PTSD/other mental health issues, over policing communities of color, and we have a recipe for more policing and jailing.

A Country of Criminals and a Legacy of Indebtedness

Today, with over 100 million Americans holding onto some criminal record in their pasts — according to the Sentencing Project and Bureau of Justice Statistics – our brothers, aunts, fathers, cousins, and friends face a lifelong set of barriers that truly impede a successful re-entry. We are not just talking about some drug kingpin coming out of San Quentin after 30 years, but anyone with a misdemeanor, even someone with an arrest without conviction.

“Many records are drug-related,” said Connie, who started off working in special education, but spent a significant amount of time in program management around hunger relief. “Then we have mandatory minimums, where a judge is forced to give the same sentence to a person caught with two oxytocins as someone with a car trunk full of them.”

This is all part of a continuation of the War on Drugs, state both Connie and Alex Biel, who is in private practice as a criminal defense attorney in Spokane. He added his expertise for a Dec. 14 expungement and vacation legal clinic at the main library. The war against people getting a second chance started all the way back in the early 1970s under Richard Nixon, when his administration somehow declared “a war” on drug use (i.e people) when even back then we knew drug addiction was a public health issue, not a policing response.

Then, fast-forward to 1992, and we had this big push for mandatory minimums (and three strikes and you are out laws) under the Clinton administration. For social workers and legal experts working with re-entry folk, these penalties following ex-felons — after they have served their sentences and finished probation requirements — are more than just punitive. Excessive, vicious and malicious prosecution some might call it.

“This is not about being tough on crime,” Connie says passionately. “Because if we make it more difficult for people to get back on their feet – that is, much more difficult to reintegrate into the community – by making it impossible to get housing and a decent job, then we end up creating a mindset that pushes people to give up.”

“Giving up” — when someone has tens of thousands of dollars around their neck in the form of Legal Financial Obligations, restitution, medical bills, unpaid child support — means these people go back to a life of crime, or end up going back to jail.

The criminal record is already a tough stigma to overcome for someone who has already paid his or her debt to society, but when people are stuck with these Legal Financial Obligations (LFOs), then we enter into the realm of a Charles Dickens dog-eat-dog England. We know our history going way back where we have seen landlords and slave owners forcing people into debtors’ hell. An ACLU-WA/Columbia Legal Services report that recently came out, “Modern-Day Debtors’ Prisons: The Ways Court-Imposed Debts Punish People for Being Poor,” is a striking indictment on our state’s value system, or lack thereof, when it comes to giving people second chances.

Here, is just one portion of the very detailed ACLU-WA/Columbia Legal Services February 2014 study:

The practice of imposing and collecting excessive LFOs results in a counterproductive system that punishes people simply for being poor and brings little to no benefit to the government or the general public. It even results in some poor people being locked up in jail because they cannot afford to pay debts – a modern version of the despised debtors’ prison. Regardless of the rationale behind imposing LFOs on persons convicted of crimes, in practice this system places severe, long-lasting burdens on persons living in poverty. Furthermore, there are few checks and balances in place to protect people from unfair collection and enforcement practices that fail to take into account an individual’s current financial situation, as required by law.

It All Ends Up in Homelessness

Any social worker struggling to end homelessness on a case-by-case basis witnesses the impact of huge fees and garnishment of wages for people barely back on their feet and most definitely way below the federal poverty line. Here is a run-down of the LFO conundrum from the “Modern Day Debtors’ Prison” study:

A majority of courts impose LFOs without considering a person’s ability to pay them, contrary to state law.

As already stated, LFOs can amount to a lifetime sentence with the debt being paid until the person dies.

When one is not paying on an LFO, he or she can end up behind bars, solely based on administrative procedures that violate their rights.

In Benton County, 20% of people booked into county jail are serving time because of LFO non-payment.

Just the threat of incarceration (which results in losing a job, an apartment, and/or children) forces impoverished people to choose between meeting their most basic needs and paying for LFOs.

Maxey Law Firm and the Center for Justice worked with Shalom Ministries (all three in Spokane) and Alex Biel to put on the Dec. 14 clinic downtown. Alex is from Spokane, but worked as a Fulbright Scholar in Austria teaching English as a Second Language. When he came back to Spokane when the six-year stint was over, he helped manage the family business – a salon and spa. He was quickly convinced to go to law school at Gonzaga and graduated in 2015, passing the state bar five months later. Well-known defense attorney Chris Bugbee encouraged Alex to open up his own law firm and to shadow the veteran defense lawyer.

“I love doing criminal defense law. It’s like teaching where I am educating the court with a particular set of facts. Being on center stage, I am comfortable doing this.” Biel especially appreciates the camaraderie between he and his clients as well as between co-defense attorneys and prosecuting attorneys.

His push is to get the legislature to reconsider which crimes are applicable for sealing. Recognition of past conviction is a social inequality that creates so many barriers moving “into the middle class.” This is a country, Alex says, that makes it virtually impossible to climb out of a bad education, a low income community, and a criminal record. He believes that once you are sentenced, complete your probation, pay restitution, then the record should be sealed. The convictions and arrests should be vacated.

While the law is Byzantine when it comes to vacating not-guilty verdicts and expunging background records, the barriers after conviction are monumental.

Both Connie and Alex cite a recent case in Benton County – City of Richland v. Briana Wakefield — as the high-water mark for putting a stop to forcing people who are indigent and poor to pay these excessive fees. Also, there are many examples of individuals who become seriously ill while on a work crew (to pay off LFOs), who then fail to report to work one day, and then get charged with escape and then jailed for non-payment. The judge in Benton County District Court is the primary collection office.

There is an even colder impediment ex-felons face when attempting to restore their civil rights: they have to pay their legal debts entirely before getting the God-given American right to vote. The following are comments from former felons talking about this ostracism and alienation (from Katherine A. Beckett, Alexes M. Harris, and Heather Evans’ report, “The Assessment and Consequences of Legal Financial Obligations in Washington State” funded by Washington State Minority and Justice Commission):

It [not being able to vote] is one piece of a much larger feeling of not being permitted to participate in society that I’m supposed to be adjusting to again.

The thing that really hurts me is not having the ability to vote. So that’s the reason I’m pursuing the expungement, because for me, just being involved and active politically, it’s something that I really value, and I don’t have that right to vote.

I would love to vote. I would love to work on a campaign, you know? I would love to be involved in my community. Right now, I have to realize that I can’t, because of what I did. But that hurts, that hurts a lot.

That’s really messed up that we can’t vote. It makes me feel less of an American, that’s what we have, is our right to vote.

Connie, Alex and the researchers cited here believe placing a moratorium on the assessment of all LFOs is the right course of action, as well as stopping the interest and collection fees for LFOs. The $500 Victim Penalty Assessment fee and any true restitution orders would be the only mandatory penalties.

“If the court has been given substantial evidence the person will not be able to pay post sentencing, then the LFO should be waived,” Alex Biel states. “A judge could throw any number out there, and that’s the Catch-22. This country is about second chances, giving people the opportunity to make amends and move on past their mistakes. I really believe that.”

This article appears in the Spokane CdA Living Magazine, Jan. 2017 issue.