Published in partnership with Shadowproof.

A federal lawsuit in New Orleans, Louisiana, and a report by the ACLU of New Hampshire, document the practice of jailing people unable to pay their court debts, violating the due process rights of the poor by failing to provide them with legal counsel and ability-to-pay hearings.

New Orleans

In New Orleans, a class action lawsuit was brought this month by five people charging the government with levying fines and court fees against poor residents without first assessing their ability to pay. According to Courthouse News, “An estimated 104,900 people, or more than a quarter of the population, [live] below the poverty line” in New Orleans. Half of all adult black men in the city are unemployed and receive no unemployment compensation.

In one case, officers in tactical gear allegedly stormed a family’s home to collect court debt:

In another case, plaintiff Reynaud Variste claims his family’s home was stormed by officers armed with assault rifles and military gear because he failed to pay $1,600 court fees. Variste says he was asleep at the time of the raid and was awakened by the commotion. However, he says, he was told not to worry too much about the raid because it was just over unpaid fees.

Collections Department officials at the Orleans Parish Criminal District Court have “admitted under oath that they have been issuing arrest warrants for unpaid debts by signing themselves the signatures of judges without first presenting any information to the judge or even notifying the judge.” If an individual is arrested and imprisoned for failing to pay their court debts, they are automatically assessed for a pre-trial bond of $20,000.

Research shows that families most often shoulder the financial costs of criminal justice debts, and the situation is no different in New Orleans, where relatives are forced to “borrow money at high interest rates, divert money from food for their children, and cash their family members’ disability checks in a desperate attempt to pay the Collections Department to avoid infinite confinement.”

The combination of mounting debt and an inability to work due to incarceration “devastates families who have to make hard choices about debt payments or food, inhibits mental health care, and makes it harder for people to obtain housing and employment.”

The lawsuit alleges every person in the courtroom has a financial stake in collecting the bond and other fees levied against an individual, from the jailer to the court-appointed defense attorney to the prosecutor and the judge, because each takes a percentage of the money to fund their own budgets. For this reason, the lawsuit argues, officials advocate for high bonds and fees “without meaningful inquiry into a person’s ability to pay.”

The judges, in particular, are said to be making over $1 million from bond fees alone. The lawsuit states that the money goes into a “judicial expense fund” that helps pay the court’s operating budget, even though such funds have been declared unconstitutional.

“The judges of the court manage the fund and court operations in an administrative capacity but refused for many years to disclose the financial details of the account or to permit public auditing,” the lawsuit states. Plaintiffs also stated judges used some of these funds to pay for private insurance benefits for themselves and their spouses that are not provided by the state.

New Hampshire

In New Hampshire, poor residents who come before the court for unpaid fines are jailed without being informed of their rights or provided an attorney, according to a new report [PDF] by the state’s chapter of the American Civil Liberties Union. Approximately 111,500 people in New Hampshire live in poverty, and the state has the fastest growing rate of inequality in the nation.

The ACLU-NH joined the University of New Hampshire School of Law to conduct a year long study revealing that, despite established state and federal law outlawing the practice of jailing people over debts, the practice is ongoing in the state, and “is not limited to a rogue judge or court, but is occurring throughout the state.”

As has been reported in other states where the use of debtors prisons has been alleged, judges in New Hampshire do not assess the individual’s ability to pay court fines and fees. In 2013, researchers found that in 148 cases (51.2% of those studied), judges jailed people who were unable to pay fines without first providing a “meaningful ability-to-pay hearing.” In 18% of cases, judges gave individuals the “choice” of jail or payment. In each case, people went to jail without representation of counsel.

In one example from 2014 cited in the study, “a judge went so far as to reject a defendant’s request for appointment of counsel even when a lawyer was available to represent her.”

In another, the court moved to imprison an individual who was without an attorney and unable to pay a $100 fine plus penalty assessment, in less than ninety seconds:

Researchers found that “for those struggling to get by, [a] fine can upend one’s life and begin a long, drawn-out, and unavoidable process with the courts culminating in illegal incarceration.”

Jailing people for their debts “attacks the social and economic fabric of their lives and the lives of their families,” researchers wrote, in part because it can “counterproductively lead to termination of an individual’s new employment, impede ongoing efforts of that individual to gain employment, and prevent struggling parents from caring for their infant children.”

Jailing people who can’t pay fines “needlessly places an extra financial burden on counties by requiring them to house poor individuals who are no danger to society,” they wrote, citing a different study that found New Hampshire jails spend about $110 per day to hold one inmate.

The ACLU’s recommendations are common sense and amount to telling the courts to follow the law. The organization suggests judges, whenever possible, not fine individuals they know cannot pay. It also recommends following state and federal law by appointing legal counsel to those who cannot afford it on their own. Finally, the ACLU urges the Circuit Court to codify the recommendations into their administrative rules to force an end to this system.