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.