Some 200 years ago, the U.S. officially did away with its system of debtors’ prisons, one inherited from a British legal system. But judges are still threatening to jail those who can pay their fines for minor misdemeanors  -- that is, of course, unless they pay in the price of blood. 

Alabama's Judge Marvin Wiggins was recently caught by the New York Times demanding that a court full of defendants donate blood or be jailed.

That's blatantly unconstitutional, except that most impoverished defendants don't even have the paper shield of a callow law student to tell them so.

"The basic idea is that you can put a person in jail if they have the ability to pay a fine, but they don't want to pay the fine [and] just refuse to pay it," said Professor Locke Bowman, executive director of the Northwestern Law School's MacArthur Justice Center. "That's contempt of court. What you can't do is put a person in jail, because he doesn't have the ability to pay. That's a debtor's prison, and it flies in the face of the Constitution and just the basic values of our society."

"But, he added, "despite that very clear proposition, that very clear principle, there are a number of judges and courts that are doing just that," he added. "Locking up people who can't pay a fee or a fine not because they'd prefer not to, but because they simply don't have the money."

Hemoglobin Hobgoblins: Bleed or Go to Debtors' Prison

In 1983 the Supreme Court issued its ruling in Bearden v. Georgia clarifying the issue: “no debtors’ prisons” absolutely, positively means no debtors’ prisons. The government cannot imprison people who cannot pay a fine. Even the IRS doesn’t do that.

Still, bafflingly, despite reminders from Congress, the Supreme Court and basic human decency many judges haven’t gotten the message. Today America operates a vast system of debtor’s prisons, based entirely on criminal fines and court fees.

You see, when the poor can’t pay a ticket or fine they often end up in jail. It’s an experience of justice entirely different from that lived by anyone with at least a little bit of disposable income. What is for most people a simple traffic citation, say for rolling through stop sign or parking too close to a hydrant, for the poor can grind life to a halt.

And it happens all the time.

“The ACLU has been exposing debtors' prisons across the country since 2010,” said Nusrat Choudhury, a staff attorney with the organization. “What we’re seeing is that in cities big and small, urban and rural people are being jailed, because they can’t afford to pay fines. [And] what appears to be fueling the rise of debtors' prisons is the tightening of municipal budgets and the desire to look towards fines and fees as a source of municipal revenue.”

Criminal fines are at an all-time high in our justice system, driven by cash-strapped governments that can’t politically afford to raise taxes. It’s part of a shadow system of revenue that has fallen hardest on the poor in many different ways, including raising of sales taxes, hiking fees for public transportation and cracking down hard on misdemeanor offenses. The last, punishable by either a fine or up to a year in prison, encourages cities to fill their coffers on the backs of people picked up for charges like solicitation, possession of marijuana or hunting after dark.

The overwhelming majority of cases come from traffic citations, particularly driving on a suspended license.

Once a tool of public safety designed to pull dangerous drivers off the road, suspending a driver’s license has become a form of coercive revenue collection for many governments. States now routinely suspend driver’s licenses for failure to pay fines or court fees, including unpaid speeding tickets, trapping many in an endless cycle of debt and poverty that they have no realistic way to dig themselves out of.

Getting pulled over for even a minor infraction generates a ticket. Failing to pay it can lead to a suspension, which in turn will get that driver pulled over again, generating more tickets until eventually a bench warrant is issued for the person's arrest. One joint study among several California legal aid societies found that “due to increased fines and fees and reduced access to courts, more than 4 million Californians have suspended drivers licenses,” with more than $10 billion in uncollected court debt.

And the fines aren’t easy to pay. With states and cities having identified drivers as a cash cow the penalties for even minor infractions are soaring. Tickets that 10 or 20 years ago cost $100 in California have jumped to $500 per offense, with another $300 in potential fees if not paid on time.

It’s a deep, dark hole. These drivers can’t pay the government if they can’t go to work, and can’t go to work if they can’t drive their car. For them the only option, Choudhury said, is living in fear. They go to work hoping today’s not the day a cruiser pulls up and it all goes bad.

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Eventually, they end up in front of a judge and often get thrown in jail. It's a vicious cycle that allows the rise of tin-pot demagogues -- those demanding blood instead of cash.

There Must Be Money Somewhere...

The argument that judges make is that this isn’t about poverty but judgment. They jail defendants for contempt of court on the same theory as any other debt collector: there’s always money somewhere, the defendant just needs proper motivation to go out and get it.

According to many judges, while plenty of defendants are honest about their circumstances, many others will lie. They’ll claim poverty despite showing up to court in a $200 jacket and talking on an iPhone. Judges may have a point about those cases, but they’re also in the minority.

Few judges who even bother to means-test ask substantive questions about work history and income. Instead they urge the defendant to call friends and family. They suggest disconnecting cable TV and phone services or pawning personal possessions.

It’s a presumption of guilt that attaches to the defendant as soon as he steps in front of the bench.

There must be money lying around somewhere, goes the argument.

As Stanford Law lecturer Mugambi Jouet points out, the system is also rigged against anyone who might push back. For defendants brought in on misdemeanor charges of the kind most college kids commit every semester, the prosecutor presents a stark choice: plead guilty and accept the fine, or roll the dice at trial and risk jail time.

Jouet suggests instead solutions like community service or rehabilitation programs as an alternative to America’s prison-or-pay model. Particularly for nonviolent offenders, programs like these have had enormous success around the world at reducing recidivism rates and deterring minor crime, while at the same time not imposing the kind of ruinous cost that trap defendants in a cycle of debt and poverty.

It’s important to note, he said, that this is not about creating a second system of justice that goes easier on the poor. It’s about recognizing that being poor is hard enough, and rolling through a stop sign shouldn’t grind someone’s life to a halt.

Legal Anemia for the Poor...

From a legal perspective, it makes perfect sense. From a financial perspective it’s a nonstarter. Cities need that money.

“There is no doubt that most people who find themselves in the criminal justice system are represented by a public defender,” Bowman said. “The rich and the mighty typically are not a part of this system, and yet the funding for it is increasingly around the country being borne by the very folks who can least afford to pay for it.”

This year alone more than half a dozen lawsuits have been filed against cities including Nashville, New Orleans and Jackson, Mississippi alleging the operation of de-facto debtors' prisons. On Wednesday the ACLU filed another against Biloxi, Miss. Some governments even use civil fines to finance the public defender’s office, creating a whole new conflict of interest for lawyers whose paychecks depend on at least some of their clients pleading guilty.

Instead of a third path, the poor get trapped in an endless and often arbitrary system. Sometimes defendants who can’t pay spend some time in jail and have their fine waived, only to have to deal with the fallout of disappearing for four or five days from their life. Others are released into payment programs that they can’t hope to meet or are simply given a stern warning and set free until the next bench warrant gets issued for their arrest.

It’s an entire system built to try and wring every last drop of blood from a stone (in some cases, quite literally), run by lawyers and judges who draw improper conclusions from their own lives. Contempt of court rulings are handed down by people who know that if they really had to they could make a call, so they assume the same of the defendant standing in front of them.

But there’s no one to call.

What happens when the poor can’t pay? They face prison and debt in an endless cycle until they come up with money that’s just not there.