“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.” ― Nelson Mandela
By John W. Whitehead
This is the tale of two Americas, where the rich get richer and the poor go to jail.
Aided and abetted by the likes of Attorney General Jeff Sessions — a man who wouldn’t recognize the Constitution if it smacked him in the face — the American dream has become the American scheme: the rich are getting richer and more powerful, while anyone who doesn’t belong to the power elite gets poorer and more powerless to do anything about the nation’s steady slide towards fascism, authoritarianism and a profit-driven police state.
Not content to merely pander to law enforcement and add to its military largesse with weaponry and equipment designed for war, Sessions has made a concerted effort to expand the police state’s power to search, strip, seize, raid, steal from, arrest and jail Americans for any infraction, no matter how insignificant.
Now Sessions has given state courts the green light to resume their practice of jailing individuals who are unable to pay the hefty fines imposed by the American police state. In doing so, Sessions has once again shown himself to be not only a shill for the Deep State but an enemy of the people.
First, some background on debtors’ prisons, which jail people who cannot afford to pay the exorbitant fines imposed on them by courts and other government agencies.
Congress banned debtors’ prisons in 1833.
In 1983, the U.S. Supreme Court ruled the practice to be unconstitutional under the Fourteenth Amendment’s Equal Protection clause.
“Despite prior attempts on the federal level and across the country to prevent the profound injustice of locking people in cages because they are too poor to pay a debt,” concludes The Atlantic, “the practice persists every day.”
Where things began to change, according to The Marshall Project, was with the rise of “mass incarceration.” As attorney Alec Karakatsanis stated, “In the 1970s and 1980s, we started to imprison more people for lesser crimes. In the process, we were lowering our standards for what constituted an offense deserving of imprisonment, and, more broadly, we were losing our sense of how serious, how truly serious, it is to incarcerate. If we can imprison for possession of marijuana, why can’t we imprison for not paying back a loan?”
By the late 1980s and early 90s, “there was a dramatic increase in the number of statutes listing a prison term as a possible sentence for failure to repay criminal-justice debt.” During the 2000s, the courts started cashing in big-time “by using the threat of jail time – established in those statutes – to squeeze cash out of small-time debtors.”
Fast-forward to the present day which finds us saddled with not only profit-driven private prisons and a prison-industrial complex but also, as investigative reporter Eli Hager notes, “the birth of a new brand of ‘offender-funded’ justice [which] has created a market for private probation companies. Purporting to save taxpayer dollars, these outfits force the offenders themselves to foot the bill for parole, reentry, drug rehab, electronic monitoring, and other services (some of which are not even assigned by a judge). When the offenders can’t pay for all of this, they may be jailed – even if they have already served their time for the offense.”
Follow the money trail. It always points the way.
Whether you’re talking about the government’s war on terrorism, the war on drugs, or some other phantom danger dreamed up by enterprising bureaucrats, there is always a profit-incentive involved.
The same goes for the war on crime.
At one time, the American penal system operated under the idea that dangerous criminals needed to be put under lock and key in order to protect society. Today, the flawed yet retributive American “system of justice” is being replaced by an even more flawed and insidious form of mass punishment based upon profit and expediency.
Sessions’ latest gambit plays right into the hands of those who make a profit by jailing Americans.
Sharnalle Mitchell was one such victim of a system for whom the plight of the average American is measured in dollars and cents. As the Harvard Law Review recounts:
On January 26, 2014, Sharnalle Mitchell was with her children in Montgomery, Alabama when police showed up at her home to arrest her. Mitchell was not accused of a crime. Instead, the police came to her home because she had not fully paid a traffic ticket from 2010. The single mother was handcuffed in front of her children (aged one and four) and taken to jail. She was ordered to either pay $2,800 or sit her debt out in jail at a rate of fifty dollars a day for fifty-nine days. Unable to pay, Mitchell wrote out the numbers one to fifty-eight on the back of her court documents and began counting days.
This is not justice.
This is yet another example of how greed and profit-incentives have not only perverted policing in America but have corrupted the entire criminal justice system.
As the Harvard Law Review concludes:
[A]s policing becomes a way to generate revenue, police start to “see the people they’re supposed to be serving not as citizens with rights, but as potential sources of revenue, as lawbreakers to be caught.” This approach creates a fugitive underclass on the run from police not to hide illicit activity but to avoid arrest for debt or seizure of their purportedly suspicious assets… In turn, communities … begin to see police not as trusted partners but as an occupying army constantly harassing them to raise money to pay their salaries and buy new weapons. This needs to end.
Unfortunately, the criminal justice system has been operating as a for-profit enterprise for years now, covertly padding its pockets through penalty-riddled programs aimed at maximizing revenue rather than ensuring public safety.
All of those seemingly hard-working police officers and code-enforcement officers and truancy officers and traffic cops handing out ticket after ticket after ticket: they’re not working to make your communities safer—they’ve got quotas to fill.
Same goes for the courts, which have come to rely on fines, fees and exorbitant late penalties as a means of increased revenue. The power of these courts, magnified in recent years through the introduction of specialty courts beyond your run-of-the-mill traffic court (drug court, homeless court, veterans court, mental health court, criminal court, teen court, gambling court, prostitution court, community court, domestic violence court, truancy court), is “reshaping the American legal system—with little oversight,” concludes the Boston Globe.
And for those who can’t afford to pay the court fines heaped on top of the penalties ($302 for jaywalking, $531 for an overgrown yard, or $120 for arriving a few minutes late to court), there’s probation (managed by profit-run companies that tack on their own fees, which are often more than double the original fine) or jail time (run by profit-run companies that charge inmates for everything from food and housing to phone calls at outrageous markups), which only adds to the financial burdens of those already unable to navigate a costly carceral state.
“When bail is set unreasonably high, people are behind bars only because they are poor,” stated former Attorney General Loretta Lynch. “Not because they’re a danger or a flight risk — only because they are poor. They don’t have money to get out of jail, and they certainly don’t have money to flee anywhere. Other people who do have the means can avoid the system, setting inequality in place from the beginning.”
In “Policing and Profit,” the Harvard Law Review documents in chilling detail the criminal justice system’s efforts to turn a profit at the expense of those who can least afford to pay, thereby entrapping them in a cycle of debt that starts with one minor infraction:
In the late 1980s, Missouri became one of the first states to let private companies purchase the probation systems of local governments. In these arrangements, municipalities impose debt on individuals through criminal proceedings and then sell this debt to private businesses, which pad the debt with fees and interest. This debt can stem from fines for offenses as minor as rolling through a stop sign or failing to enroll in the right trash collection service. In Ferguson, residents who fall behind on fines and don’t appear in court after a warrant is issued for their arrest (or arrive in court after the courtroom doors close, which often happens just five minutes after the session is set to start for the day) are charged an additional $120 to $130 fine, along with a $50 fee for a new arrest warrant and 56 cents for each mile that police drive to serve it. Once arrested, everyone who can’t pay their fines or post bail (which is usually set to equal the amount of their total debt) is imprisoned until the next court session (which happens three days a month). Anyone who is imprisoned is charged $30 to $60 a night by the jail. If an arrestee owes fines in more than one of St. Louis County’s eighty-one municipal courts, they are passed from one jail to another to await hearings in each town.
The prison population continues to grow because of a glut of laws that criminalize activities that should certainly not be outlawed, let alone result in jail time. Overcriminalization continues to plague the country because of legislators who work hand-in-hand with corporations to adopt laws that favor the corporate balance sheet. And when it comes to incarceration, the corporate balance sheet weighs heavily in favor of locking up more individuals in government-run and private prisons.
As Time reports, “The companies that build and run private prisons have a financial interest in the continued growth of mass incarceration. That is why the two major players in this game—the Corrections Corporation of America and the GEO Group—invest heavily in lobbying for punitive criminal justice policies and make hefty contributions to political campaigns that will increase reliance on prisons.”
It’s a vicious cycle that grows more vicious by the day.
According to The Atlantic, “America spends $80 billion a year incarcerating 2.4 million people.” But the costs don’t end there. “When someone goes to prison, nearly 65 percent of families are suddenly unable to pay for basic needs such as food and housing… About 70 percent of those families are caring for children under the age of 18.”
Then there are the marked-up costs levied against the inmate by private companies that provide services and products to government prisons. Cereal and soup for five times the market price. $15 for a short phone call.
The Center for Public Integrity found that “prison bankers collect tens of millions of dollars every year from inmates’ families in fees for basic financial services. To make payments, some forego medical care, skip utility bills and limit contact with their imprisoned relatives… Inmates earn as little as 12 cents per hour in many places, wages that have not increased for decades. The prices they pay for goods to meet their basic needs continue to increase.”
Worse, as human rights attorney Jessica Jackson points out, “the fines and fees system has turned local governments into the equivalent of predatory lenders.” For instance, Jackson cites:
Washington state charges a 12% interest rate on all its criminal debt. Florida adds a 40% fee that goes into the pockets of a private collections agency. In California, penalties can raise a $100 fine to $490, or $815 if the initial deadline is missed. A $500 traffic ticket can actually cost $1,953, even if it is paid on time. And so we are left with countless tales of lives ruined—people living paycheck to paycheck who cannot afford a minor fine, and so face ballooning penalties, increasing amounts owed, a suspended license, jail time, and being fired from their jobs or unable to find work.
This isn’t the American Dream I grew up believing in.
This certainly isn’t the American Dream my parents and grandparents and those before them worked and fought and sacrificed to achieve.
This is a cold, calculated system of profit and losses.
Now you can shrug all of this away as a consequence of committing a crime, but that just doesn’t cut it. Especially not when average Americans are being jailed for such so-called crimes as eating SpaghettiOs (police mistook them for methamphetamine), not wearing a seatbelt, littering, jaywalking, having homemade soap (police mistook the soap for cocaine), profanity, spitting on the ground, farting, loitering and twerking.
There is no room in the American police state for self-righteousness. Not when we are all guilty until proven innocent.
As I make clear in my book Battlefield America: The War on the American People, this is no longer a government “of the people, by the people, for the people.”
It is fast becoming a government “of the rich, by the elite, for the corporations,” and its rise to power is predicated on shackling the American taxpayer to a debtors’ prison guarded by a phalanx of politicians, bureaucrats and militarized police with no hope of parole and no chance for escape.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His book Battlefield America: The War on the American People (SelectBooks, 2015) is available online at www.amazon.com. He can be contacted at firstname.lastname@example.org. Click here to read more of John Whitehead’s commentaries.