Police and court authorities are the principal players in a system of “mercenary justice” that has distorted relations between communities and law enforcement, with hidden consequences that parallel more well-publicized forms of misconduct such as the unjustified shooting of unarmed civilians, according to a forthcoming article in the Illinois Law Review.
But even the few tools the federal government has to stop the practice of treating justice-involved populations as “targets for revenue generation” are not being used, wrote Wayne A. Logan, the Gary & Sallyn Pajcic Professor of Law at Florida State University College of Law.
In his essay, based on a recent symposium on the issue, Logan wrote that charging escalating fines and fees on individuals who come before the court in many U.S. jurisdictions, even for minor violations, has created a “two-tier” system of justice.
He called it a “different kind of justice system violence—of an economic kind, with victims whose names have not become the subject of common public knowledge.”
According to available statistics, some 10 million Americans now hold criminal debt of some kind, totaling over $50 billion.
While some have called this “cash register justice,” Logan said a more accurate term was “mercenary justice,” reflecting the fact that many jurisdictions have been using fines to shore up financial shortfalls experienced by many cities and towns around the U.S. since the 2008 Great Recession.
“Local mercenary criminal justice, while certainly not as dire as unjustified killings by police, has very negative effects on individuals and the communities in which they live,” he wrote.
“It also fosters the appearance and actuality of systemic conflicts of interest and corruption, skews law enforcement priorities at the expense of the public good, [and] creates a two-tier system of justice that especially disadvantages the poor, who lack the resources to buy their way out of the system.”
Logan said public anger and frustration with the system occasionally captures headlines. The riots in Ferguson, Mo., following the Aug. 2014 police killing of an unarmed teen, were fanned by simmering resentment about the onerous fines imposed by local officials as a way to raise revenue for the city.
Many people saw police as a “collection agency,” and felt regarded “less as constituents to be protected than as potential offenders and sources of revenue.” Just as ominously, they “feared venturing outside for risk of being targeted and arrested due to a single missed payment,” wrote Logan, citing subsequent interviews with Ferguson residents.
But most of the time, the practice goes on well beneath the radar screen of public attention.
Logan cited the example of Cindy Rodriguez of Rutherford County, Tennessee, who after pleading guilty to shoplifting, was assessed almost $600 in fines and fees, including a monthly “supervision fee” while she was on probation for a year. She was also required to pay for a drug test, despite not being charged with a drug-related offense.
Rodriguez, who had never been in legal trouble before, was subsisting on disability payments of $735 per month, when she was arrested. Lacking money to pay her escalating debts, she was jailed.
After she was released, “she sold her van to make payments, was eventually rendered homeless, and lacked money to purchase food for herself and her daughter,” Logan wrote.
Since the 2008 financial crisis, such experiences have “become common as local governments, left to fend for themselves, looked to the criminal justice system as a revenue source,” he added.
Meanwhile, the federal government has done little to counter the trend, which has been exacerbated by the increasing use of Legal Financial Obligations, to pay off local debt, Logan wrote.
In 2016, the Department of Justice sent a “Dear Colleague” letter to state supreme court chief justices and state court administrators, urging them to curtail practices such as jailing individuals who were unable to pay. But it had little impact, Logan said, and the letter was since revoked when the Trump administration came to power.
Logan noted that few local governments have incentive to change, and some even argue that forcing individuals to be financially accountable for their misdeeds by helping to pay the cost incurred by their involvement in the justice system was defensible.
But statistics show that these practices “disproportionately burden the poor and racial minorities [and amount] to a regressive tax they are often ill-equipped to pay,” he wrote.
More direct methods such as initiating a “pattern or practice” investigation of police misconduct under the Civil Rights Act, or withholding federal funds from jurisdictions that abuse the system, have similarly been avoided—in many cases because of federal reluctance to incur political pushback by interfering with states that are otherwise in dire financial straits, wrote Logan.
In the process, the LFOs have encouraged burgeoning involvement by private sector interests who can take over bill collecting and enforcement for profit, Logan wrote.
“Private businesses frequently provide services, often prioritizing profits over the best interests of individuals and exercising influence over local policymakers,” he noted, adding “the involvement of for-profit, private companies creates obvious moral hazard risk.”
Logan warned that without proactive policies on the part of the federal government, the system will only get worse—and it may take more public flare-ups before policymakers decide to do something about it.
“Those wishing comprehensive reform of local mercenary criminal justice practices,” he concluded, “will likely have to await, in James Baldwin’s words, ‘the fire next time.’”
The complete essay can be downloaded here.