The New Peonage

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On November 24, 2004, a thirteen-year-old boy named Taylor M. and several other boys in Ventura County, California, threw rocks at construction equipment owned by to J&S Excavating [J&S]. After another boy threw a firecracker into a bulldozer, Taylor shut its door, and the bulldozer ignited. Damages were estimated at over $170,000, including repair costs, rental expenses, and lost labor, although the estimate failed to account for the amount that J&S ultimately recovered from its insurance company. The state charged Taylor with arson and felony vandalism in juvenile court, he admitted the allegations, and the judge declared a maximum confinement period of three years, eight months.

At the time of the offense, Taylor was struggling both academically and behaviorally in the sixth grade.  He was failing several courses and repeatedly disciplined for misbehavior.  He was diagnosed with a learning disability and Attention Deficit Hyperactivity Disorder, and his peers ridiculed him for attending special education classes.

On April 25, 2006, upon the prosecutor’s recommendation, the court placed Taylor in a deferred entry of judgment (DEJ) program with multiple conditions, including monthly restitution payments of $100. Soon after, Taylor’s parents, who were already struggling to pay their bills, experienced a series of health setbacks.  His mother was diagnosed with cancer and then suffered two strokes, and his father became disabled. His parents separated, and his father became homeless, as did his older brother. Because of his mother’s illnesses, Taylor had to assist her with basic tasks of cooking and cleaning, while at the same time he made numerous attempts—all ultimately unsuccessful—to find work to pay his restitution.

Despite these hurdles, Taylor made some strides.  His grades improved as did his school attendance and behavior, and he managed to complete all eighty hours of court-ordered community service as well as a counseling program. Ultimately, however, Taylor’s family was able to pay a total of only $175 toward restitution between 2006 and 2009, at which time Ventura County Probation Officer Monica Gomez recommended revocation of his DEJ placement because “no effort [was] being made…at all.”

The juvenile court judge agreed with the probation officer’s recommendation and revoked Taylor’s DEJ placement, putting him on formal probation that left him vulnerable to the three years, eight months, term of incarceration.  In 2010, the Court of Appeal of California affirmed the judge’s decision, stating that the probation department would not have recommended the revocation of his DEJ placement “if he had met with his probation officer on a regular basis and made small payments ($10, $5, or $1).  Appellant failed to establish that he tried to do those things.”

Across the U.S., even minor criminal charges, such as loitering, littering, and unpaid traffic tickets, trigger an array of fees, court costs, and assessments in both juvenile and criminal courts that can create insurmountable debt burdens for already-struggling families.  Although the U.S. Supreme Court held in Williams v. Illinois (1970) that extending a prison term for an inability to pay criminal justice debt violates the Fourteenth Amendment’s Equal Protection Clause, and in Bearden v Georgia (1983) barred the revocation of probation for failure to pay a fine without first inquiring into a person’s ability to pay, jurisdictions continue to ignore these requirements and consider almost every failure to be “willful.”  Some courts impose a “fines or time” alternative sentence that forces defendants to “choose” between jail and immediate payment in full.

For low-income families, criminal justice debt can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, additional court appearances or warrants related to debt collection and nonpayment, and extra fines and interest for late payment.  When parents face such collateral consequences, the very act of meeting the economic and emotional needs of one’s children becomes a formidable challenge.  Failure to do so can trigger the intervention of Child Protective Services, potential neglect allegations, and further court hearings and fees.  For non-custodial parents, failure to pay child support can also lead to time in jail, and the debt often continues to accrue during incarceration, making it nearly impossible to become current.

For youth in the juvenile court system, mandatory attorney fees, detention fees, restitution fines, and supervision fees impose a burden that increases the risk of recidivism.  When these circumstances are exacerbated by aggravating factors such as unemployment, substance abuse, or mental illness, families without an extensive support network have little chance of succeeding.  In short, for parents and their children who are caught within the state’s debt-enforcement regime, the threat of punishment is an ever-present specter, and incarceration is never a thing of the past.

One of the inherent ironies is that rather than serving as a valuable revenue source for the state, juvenile and criminal justice system fees require an extensive infrastructure to turn court and correctional officials into collection agents.  This burdens the system and actually interferes with the proper administration of justice.  Moreover, states frequently divert court fees and assessments to projects that have little connection to the judicial system.

Although the Thirteenth Amendment to the U.S. Constitution formally abolished slavery and involuntary servitude in 1865, the text created an exception for the punishment for crimes “whereof the party shall have been duly convicted.”  It also explicitly provided for enactment of supplemental legislation to enforce the amendment’s substantive provisions.  Two years later, Congress passed The Peonage Act in an attempt to prohibit the practice of coerced labor for debt, but in the wake of the Civil War, southern states innovated other ways to impose peonage but avoid violations of the federal statute.  Among these were criminal surety statutes that allowed employers to pay the court fines for indigent misdemeanants charged with readily manufactured crimes, such as vagrancy, adultery, or use of offensive language, in exchange for a commitment to work. Surplus from these payments padded public coffers (as well as the pockets of court officials), and when workers’ debt records were subsequently “lost” or there was an allegation of breach, surety contracts were extended and workers became further indebted to local planters and merchants.  Several decades later, the U.S. Supreme Court inBailey v. Alabama (1911) and U.S. v. Reynolds (1914) finally invalidated laws criminalizing simple contractual breaches, which Southern states had used to skirt the general provisions of the Peonage Act, but these decisions ultimately had little impact on the “ever-turning wheel of servitude,” and the practice persisted under alternative forms until after World War II.

In several instructive ways, the contemporary justice tax faced by Taylor M. and thousands like him ultimately has the same societal impact as the practice of peonage: both function to maintain an economic caste system. There are, however, a number of common sense legislative reforms for what I’ve called “the new peonage” that lawmakers should consider.  They include creating and enforcing court fee exemptions for indigence; eliminating unnecessary interest, late fees, and collateral consequences for defendants; and ending incarceration and extended probationary supervision for non-willful failure to pay.  For youth like Taylor M. and their families, our states must pass legislation that eases the burden on low-income families and ends the phenomenon of the new peonage.

This post previously appeared on the Human Rights at Home Blog.

Tamar Birckhead’s research on “The New Peonage” will be published by the Washington & Lee Law Review in December 2015.

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About Tamar Birckhead

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This entry was posted in Adult Court, Analysis, Juvenile Court, Legal History, Legal Scholarship, Poverty, Race, Class, Ethnicity, U.S. Supreme Court. Bookmark the permalink.

One Response to The New Peonage

  1. Michael Rich says:

    The “justice” system seems to ignore the “willfulness” requirement for punishing people for probation violations.

    In Mass. when a juvenile can’t pay the mandatory $150 attorney fee, the case cannot be closed, the juvenile and the court appointed attorney appear in court every couple of months until it is paid, with the attorney charging the state approximately $75 each time.