Decoupling Justice
from 
Punishment

Legal Financial Obligations (LFOs) and

the Exercise of Social Control

THE SYSTEM OF MONETARY SANCTIONS IS PART OF A LARGER SYSTEM OF CRIMINAL JUSTICE. Despite this connection, it has little coherence within or communication with other domains of the criminal justice system. The decentralized bureaucracy made possible by an ambiguous statute offers significant discretion to “street-level bureaucrats”—judges, clerks, prosecutors, and defense attorneys—without much supervision or accountability.

 

In every jurisdiction I studied, judges did not know how LFOs were implemented by other judges in their own courthouse—much less by other judges in the state—or how they were monitored and enforced by clerks. When I asked them how the collection process worked, judges directed me to talk with the clerks. Judges’ general lack of knowledge about LFO implementation, monitoring, and sanctioning processes highlights the decoupling of LFOs from the imposition of justice. Only rarely did a judge take full account of a defendant’s situation, and court officials were rarely aware of the total amount of time and resources their clerk’s offices were devoting to imposing virtually unrecoverable LFOs; consequently, they gave little consideration to what was involved in the continual monitoring and sanctioning of LFOs. Fewer still outside of the criminal justice system are aware of how much time county clerks and judges spend imposing and monitoring LFOs. And even legally savvy defendants and attorneys do not fully understand how LFOs undermine legal rights to due process and the equal application of justice.

 

Monetary sanctions empower clerks to enforce highly individualized policies. In enforcing sentencing orders, they devise means for overseeing and sanctioning unresponsive or insolvent defendants. As a consequence of the ambiguity in the statutes, clerks wield a great deal of power in how they judge defendants, and few safeguards are in place to protect defendants against uneven or unjust sanctioning or abuse of power. The exercise of power is a central feature of the system of monetary sanctions. Judges, clerks, and prosecutors use LFOs to control people with legal debt. After punishment has been dispensed within a courtroom, within the confines of a jail or prison, or through the imposition of labor in a community service program or work crew, debtors continue to face perpetual punishment simply because of their inability to pay.

 

Punishment through monetary sanctions is imposed on and experienced by a wide range of people. During a probation violation hearing, I observed a young man, Scott, waiting in line; he was called up to the clerk’s station in front of me. As Scott handed over $35, the older man who accompanied him told the clerk that he was not his father but his employer. The clerk began by saying:

 

Clerk: You were supposed to pay $100. You were in for sentencing. You were released from the jail and told to pay $100. Do you have $65 more?

 

Scott: No.

 

Clerk: You will have to wait for the judge.

 

Employer: What happens if he doesn’t pay the $65?

 

Clerk: He could go to jail. Do you have a credit card with $65?

 

Scott: No, it’s all I got. [He walks away.]

 

Employer: Will the judge give me time to scrounge around for more money?

 

Clerk: No.

 

Employer: So I have to go to the ATM right now?

 

Clerk: Yes.

 

Both the employer and Scott leave and later return with a payment receipt. While the employer is paying, I hear him give the clerk a mailing address that includes “care of.”

 

Clerk: Are you related?

 

Employer: No, I have a vested interest. As of today I own him. He is one of my mechanics. [Emphasis added by author.]

 

Just like social control systems of the past—slavery, indentured servitude, and convict leasing—the system of monetary sanctions generates perverse, indeterminate, and punitive relationships both within and outside of the criminal justice system.

 

Even when debtors provided documentation that they had no means to make payments, clerks and judges scoured them for resources. They inquired about conspicuous spending habits, looked at fingernails for recent manicures, and asked about tattooing and smoking. Regular summonses to court were mailed, wages were garnished to tap into defendants’ financial assets, bench warrants were issued, and sentences that had initially been stayed, deferred, and diverted were revoked. When people failed to appear in court, they were arrested and incarcerated. Many court officials and defendants alike recognized that whatever the costs of not appearing at an LFO hearing, there were also costs associated with showing up. Defendants were fearful of being incarcerated, and many were frustrated by their inability to pay; some did not even know they had been served because they had no stable place to live where they could receive mail. In more punitive counties, defendants with legal debt were regularly incarcerated for nonpayment. But even in less punitive counties, jail time was used to punish nonpaying offenders, particularly those who owed restitution. The variation in experiences of justice and punishment led to arbitrary justice and impeded a sense of fairness.

Alexes Harris will present "A Pound of Flesh: Monetary Sanctions, the Punishment Continuum, and the Way Forward" on Thursday, December 12, 4:30-6:00 pm, 133 S. 36th Street, Room 250 (The Forum).

Alexes Harris

University of Washington

The following is an excerpt from Chapter 7, "The Permanent Punishment," of Harris' book, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor. A PDF of the full chapter is available here.