The President Hosts a Panel Discussion on Criminal Justice Reform | The White House

The President Hosts a Panel Discussion on Criminal Justice Reform | The White House

NY Times Opinionater: Instead of jail, court fines cut to fit the wallet

Tina Rosenberg :  New York Times:

David Stojcevski died in jail in Macomb County, Mich., a far suburb of Detroit, last year. He was taking doctor-prescribed methadone and two anti-anxiety medicines to alleviate symptoms of drug withdrawal when he began a 30-day sentence in June 2014. His family alleges that officials at the jail did not respond to his pleas for his medicines. He began hallucinating and was placed in a special cell with 24-hour camera surveillance. (Local 4 television in Detroit first showed the video. A warning: Watching will produce nausea and outrage.) There he lay for 16 days, naked, on the floor. He lost 44 pounds. Finally he stopped breathing, was taken to a hospital and pronounced dead.

Guards are required to monitor the cell cameras, taking notes every 15 minutes. They watched Stojcevski for days as he died.

But this isn’t a story about horrendous jail practices, although the lessons should be obvious. Rather, the point is that Stojcevski received a death sentence for a traffic ticket: He had been arrested for obstruction of justice when he couldn’t pay a $772 fine for reckless driving.

His death is an extreme consequence of cash-register justice, a practice that ruins lives across the country every day in less dramatic ways.

And this is a story about a possible remedy: Make fines proportional to an offender’s ability to pay.

About a dozen countries in Latin America and Europe use such fines, called day fines. In countries where their use has been studied, day fines have markedly reduced the number of people incarcerated, made the criminal justice system fairer and less abusive to the poor, lowered recidivism and saved government money.

Day fines were tried in a handful of cities in the United States a quarter-century ago. They didn’t catch on, in part because the political climate was uncongenial: It was the peak of lock-’em-up sentiment. But America no longer wants to lock up every offender. Today, there is a rare bipartisan consensus on the harm created by mass incarceration.

So it’s time to take a serious new look at the day fine.

First, why we need it:

In America, people are routinely jailed for failure to pay fines. Since the 1990s, courts in many parts of the country have had to pay for themselves, or even support their cities, so fines can be exorbitant. Ferguson, Mo., is the most notorious example: “Ferguson’s law enforcement practices are shaped by the city’s focus on revenue rather than by public safety needs,” said the Justice Department’s report on the police and courts in Ferguson.

Someone pulled over for a missing taillight can be given multiple fines, plus court fees that might equal or exceed the original fines. If the accused can’t pay, her case may be turned over to a private company that supervises “pay-only probation” — bill collecting, really. The company collects the money and charges the offender for doing so. (Here’s an excellent summary of the process, written in plain English.) The offender could pay off her whole fine and still owe thousands of dollars. If she doesn’t pay, she could go to jail, which would probably mean losing her job.

Cash-register justice incarcerates or keeps on probation many people who are not dangerous, just poor. And taxpayers are being abused by legislators who keep heaping fees on offenders. The lawmakers are not considering the enormous cost of jailing those who can’t pay, the cost of collecting their debts, or the cost to society of turning a civil violator into an incarcerated criminal.

“I don’t think legislators know this is not working — that the fees on the books are costing more money than they are bringing in,” said Karin Martin, an assistant professor of public management at the John Jay College of Criminal Justice in New York. The Brennan Center for Justice at the New York University School of Law, for example, looked at the incarceration of 246 people in Mecklenburg County, N.C., who fell behind on their court debt. The county collected $33,476, but jailing them cost $40,000.

Legislatures should not be making courts pay for themselves. It creates terrible injustice and ruins lives. It perverts justice by giving courts an incentive to convict.   But if judicial systems are going to be made to pay their own way, it should be done fairly.

One way is to use the day fine. Rather than a set dollar amount, it is a percentage or multiple of an offender’s daily income — hence the name. In some countries, “daily income” is simply after-tax earnings. Others adjust for the number of dependents or fixed obligations like child support, and some consider only what is earned above a basic living allowance.

In the United States, for example, a very minor offense carrying a fine of one day’s income might cost a minimum-wage earner $72 if based only on straight income, while someone with an annual income of $250,000 might pay $685. A more serious offense could carry a fine of 10 or 20 days’ income, or more. For the system to function, additional court fees should also be proportional to income.

Different fines for different people — is that fair? Compared with the current system, yes. Even $500 for a traffic fine and fees can ruin the life of a minimum-wage worker. For someone who makes $250,000 a year, that same fine is a minor inconvenience, and an ineffective deterrent to further violations. The rich are more likely to drive recklessly, and they can put a fine on a credit card without a thought. Same offense – two very different punishments.

But with a day fine, an offense would carry a similar punitive hit for rich and poor.

Germany is probably the biggest user of day fines. In 1975, the government of what was then West Germany adopted the practice because it wanted to reduce prison overcrowding, and because research had shown that low-level offenders jailed for short times emerged more violent and dangerous. Offenders were no longer given short sentences, but rather fines that were adjusted for income.

In 2010, Germany used day fines in more than 94 percent of traffic offenses and in a vast majority of crimes that would otherwise have drawn short jail sentences, like fraud, embezzlement and theft.

An early study, published in 1980 by Hans-Jorg Albrecht of the Max Planck Institute, found that the fines were more effective than short sentences at preventing future offenses.

Since day fines are calculated to be bearable, collection rates are much higher than with traditional fines. But they still require enforcement – in Germany’s case by means of other civil (not criminal) sanctions like the seizure of property, the garnisheeing of wages or the imposition of a sentence of community service. Nonpayers go to jail very rarely.

The Marshall Project: New York City's Big Idea on Bail

The Marshall Project

Last month in Brooklyn, a homeless teenager was arrested for jumping a turnstile. He had been arrested a few times before, so the judge set bail at $250. The teenager could not pay it. He was sent to Rikers Island jail to wait for trial. He was there for about two weeks.

We hear stories like this with unacceptable regularity. They may not generate the same attention that Sandra Bland’s and Kalief Browder’s stories did, but they should inspire the same outrage. Even one night spent in jail because of poverty is too many.

We are at a tipping point. Many jurisdictions are attacking the inequities associated with cash bail – Hawaii and New Jersey last year, and New York State Chief Judge Jonathan Lippman just last week. New York City is, too. In the Mayor’s Office of Criminal Justice, we are already working to eliminate bail for low-risk groups, and more is in the offing.

The low-risk defendant facing a low-level charge, detained on bail of $1,000 or less, should wait for trial at home, not behind bars. But this group is only 7 percent of the population jailed on bail in New York City.

The bigger question is what we do with the other 93 percent. These 44,000 people are still stuck with a bail system in which how much money someone has determines whether they are detained. If some of these individuals pose a risk to public safety, they should be detained. But the problem with money bail is that it can lead to unnecessary jail time if low-risk people cannot afford to pay bail. Just as troubling, it could also lead to high-risk people being able to pay bail and return to the street.

Before we spend money and time funding additional pilot projects, we need to understand the bigger, systemic problems that plague money bail. Until we do, reform attempts will be nothing more than whack-a-mole. On Tuesday we launched the Bail Lab to do just that.

The point of the Bail Lab is to scout ideas from across the country, and test them. An advisory board of leading experts on bail will guide us, but we have also opened an online hub that invites everyone – from tech start-ups to people with a family member behind bars – to ‘crowdsource’ bail reform. Help us map the problems with money bail. Help us test solutions. And then help us implement what works in New York City and share what we learn with other states and cities nationwide.

First up are experiments to answer the fundamental question of whether money is actually the best way to get people to return to court. The anecdotal evidence suggests the opposite may in fact be true. Most people – 93 percent in New York City – who are released without bail or other conditions before trial return to court within 30 days of their scheduled court date. And the Bronx Freedom Fund – a charitable organization that posts bail for clients facing misdemeanor charges – has had 97 percent of its clients successfully return to court since 2013. This suggests that cash deposits may not actually be necessary to ensure that defendants return to court.

To test that proposition, we will take defendants who have been bailed out by a charitable fund and randomly try various incentives to get them to show up for their court dates: texting reminders, involving family members, engaging defense counsel more actively, and other devices.

What we learn will be shared with judges, to make them aware of the choices they have. We will also work with the courts to gather data on the outcomes of bail – how many defendants with bail set at $250 go to jail? – so that judges can have access to information about what happened to cases. This will create an important feedback loop judges have been wanting.

New York City’s pre-trial system works well for many. We are a national leader in the percentage of defendants – 68 percent – who wait for trial at home, without conditions like supervision or money bail. Most of these defendants return for their trial date. Only 14 percent of defendants in New York City are held on bail. And for those who do have bail set, our system, for the most part, fairly matches bail amounts to the seriousness of the offense: 73 percent of defendants charged with a misdemeanor have bail set under $1000.

Despite these successes, our bail system – like others across the country – is driven largely by guesswork instead of science, with bail amounts often mismatched to defendants’ financial situation and the risk they pose. Courts often do not have the tools to make sure that bail does not lead to unnecessary detention for low-risk people and that release is not done at the expense of public safety. Someone who is a danger to others should be detained.

We are also testing how to speed up and simplify the bail payment process. Even though New York City sets bail amounts that are appreciably lower than the national average, only 10 percent of people are able to pay bail at arraignment. Another 30 percent make bail after arraignment, most within one week. Through experiments, we are identifying whether measures like allowing defendants to pay with a credit card would enable more people to post bail before they are booked into jail. If we can improve the process for posting bail, we can avoid the increased risk of recidivism that has been associated with just a few days in jail, as well as the sky-high costs of incarceration.

And there are other barriers we may be able to eliminate:

• When someone is arrested, his cell phone is confiscated. That makes it much harder to contact family and friends and arrange bail before being transferred to jail.
• The buses to Rikers leave from the courts on a regular schedule. If someone has bail set three hours before the bus goes, he has three hours to arrange bail. If he is arraigned 15 minutes before the bus leaves, chances are he’s going to jail.

We cannot afford to get bail reform wrong. The momentum spreading across the country right now is important and a long time coming, and we cannot settle for partial solutions. While money bail is still with us, we need to make it an accurate and productive 21st century public safety tool instead of a blunt and archaic instrument. But this process must be driven by science.

Elizabeth Glazer is the director of the New York City Mayor’s Office of Criminal Justice.

For more on New York’s earlier bail reforms, see here. For a contrary view, see here.