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Criminal Justice Debt: Forcing Poor Black Americans To Pay For Their Incarceration

There are currently hundreds, if not thousands, of prisoners throughout the United States engaging in work stoppages as part of a prison labor strike. Many of the prisoners are resisting their confinement conditions because they oppose the way in which they are made to pay for their incarceration and no longer want to be treated like slaves.

Donna Murch, an associate professor at Rutgers University, joins Rania Khalek and Kevin Gosztola on the “Unauthorized Disclosure” weekly podcast to talk about her report for Boston Review, “Paying for Punishment.” She talks about “criminal justice debt” and how black Americans are more likely than whites to face municipal court judgments for debt collection. Murch describes some of the devastating economic consequences of making people pay for their incarceration. She also addresses the rise of the electronic monitoring industry as a form of “offender-funded justice.”

In the discussion portion of the show, Murch stays with us and shares her views on Lena Dunham, the protesting by San Francisco 49ers quarterback Colin Kaepernick and other NFL players, and the need among Hillary Clinton’s campaign and her supporters to connect all things they despise to Russian President Vladimir Putin somehow.

The episode is available on iTunes. To listen to the episode (and also to download the episode), go here. A page will load with the audio file of the interview that will automatically play.

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Below is an edited transcript of part of the hour-long interview with Donna Murch. 

RANIA KHALEK: Give an overview of your piece for the Boston Review, what it’s about, and then we can go from there.

DONNA MURCH: The piece is called “Paying for Punishment,” and what it is, it’s really a study of how incarceration makes money and how it doesn’t just cost money. So, I start with just a very quick precis about a moment—which honestly has already passed—which was this bipartisan coming together of conservative interest groups with prison reformers and civil libertarians in order to decarcerate.

My argument is that one of the dangers is that we need to look to the American past, back to the history of convict leasing and debt peonage in the period that followed the Civil War. Because we often think that the biggest reason people are fighting against mass incarceration is the cost, but if you look at how cost is measured, it’s a much more complicated question because for local municipalities, in particular the court system is being used to generate money. This is what happens at the state and municipal level. It doesn’t happen in the federal system.

So there are all these ways that these de facto practices, which I think are ultimately unconstitutional, have slowly developed and really expanded. It’s an overlap between the period of financialization and then the local revenue crises over the last 15 years or so that this system has just grown and grown, and it takes money from the poorest people and redistributes to states and private contractors.

KHALEK: You mention the austerity and how cutting funding across the country has basically forced states across the country, and local municipalities, to rely on other forms of money. Ferguson comes to mind. So, if you’ve got a lot of conservative groups that make incarceration a money issue, then it’s not really doing anything to change the system if you’ve got a bunch of muncipalities reliant on the criminal justice system. Can you talk about how muncipalities are reliant on criminal justice as form of revenue and what that means?

MURCH: The way this piece started out originally was talking to Boston Review, and they kind of encouraged me to write a piece on the criminalization of debt. So I start out in a much more straightforward way, looking at the ways people are criminalized are debt. There was a chase that happened in February, where there was an older African American man in his mid-forties. He was arrested federal marshals, and they came fully armed and took him off to prison.

He had a meeting a couple days later with his congressman talking about essentially he had been arrested for not paying his student loan debt, and this story just went viral because after all there are 42 million people that have student debt in the United States. Student debt is a big deal, and the idea of people being carted off to prison for student debt, especially by the federal government, was quite frightening to people.

With further investigation, what they found out is he really was being arrested for like a contempt of court charge because a federal judge appointed by Reagan—He had been sent a summons for wage garnishment and hadn’t responded to it and come to his court date and then he was charged with contempt of court and that’s why the federal marshals were dispatched.

So I was researching this story and trying to find out is it representative or is it not, and I found very few examples at the federal level. But what it did was open up all the activist work being done by the Brennan Center, the ACLU, by Arch City Defenders in Ferguson, and kind of the world of the activist lawyers that I think really prompted the Department of Justice report that came out about Ferguson. SoI was reading that and a lot of investigative material—really great piece done by ProPublica—who were really just talking about the modern-day slavery system of debtors prison.

It intersects with more traditional ideas of debt in that there’s been the emergence—and they’ve always existed but they really have expanded and become a force—of private debt collectors. This is the first part of the system. It’s been found that they disproportionately target black people and populations of color. So the private debt collection companies collect debt for much smaller amounts and at much larger rates than do banks, but they’ve learned how to game the system and to use municipal courts to assist in this process of debt collection, of wage garnishment for small amounts of money.

And ProPublica did this wonderful study, and they found out that in Jennings, a municipality that’s next to Ferguson—It’s a huge number. I don’t know if I’m getting this figure right. I have it in my article. I think it’s a third of people, who were suffering from some form of wage garnishment or state action around debt. So that’s the first piece of it is debt collection, but as you can tell from this process of how it works with municipal courts, you have a debt. You don’t pay it. A private debt collector attempts to pay it. They go to the court to force a wage garnishment. You don’t respond. Then you are charged with contempt of court, arrested, and then at that point you are arrested, you begin to accrue this terrible thing, which is really what most of my article is about, criminal justice debt.

Anyone who is arrested immediately begins to accrue criminal justice debt, and this flows from a whole system of fees that are charged both by muncipalities and often by private contractors, who have been hired to fulfill requirements of the booking process. So, for example, when you’re arrested, you’re charged booking fees. Many states have mandatory urine testing for drugs or alcohol. You’re charged for that. Should you want a public defender, in many states, you are charged for a public defender. That money does not go to the public defender. It goes directly back to the municipality. And there are many, many fees. People are often charged fees for being prosecuted.

One of the estimates I saw is that it ends up being $1000 per count, and people are also charged simply for sitting in jail and for electronic monitoring, which I can talk about more. Electronic monitoring is one of the most important parts of the article because it’s increasingly the vision of incarceration for the future for non-felony offenses. It’s viewed as a form of decarceration. In many cases, it’s a privatized system. It’s called offender-funded justice. It’s where people have to pay. I hate to use the word, but it’s almost considered a privilege to receive electronic monitoring, and these can end up being fees that reach up to $2500 per month.

KHALEK: How are people supposed to pay for this stuff? If you’re in prison, you’re not working. So it’s not like you can make money. The money if you do work in prison is like ten cents an hour. And then, if you’re doing the electronic monitoring thing, how are you supposed to afford rent and then also pay $2500 a month for electronic monitoring? How are people doing this? I don’t understand how people are even able to do this in the first place, to live like that.

MURCH: I have this story of a man in North Carolina that’s heartbreaking. I think he’s arrested for driving without a driver’s license, and he was trying to take a family member to the hospital. He does electronic monitoring so he doesn’t have to go to jail, but after six months, he ends up just turning himself back into the authorities because he says his entire life started to fall apart. So what this really is it’s a classic example of the application of force to extract money. Charles Tilly called that a racket.

But that is the use of state force to expropriate and redistribute wealth. What happens is the pressure is put on the entire family and extended family in order to pay these debts. So it is in fact a modern-day debtors prison.

KEVIN GOSZTOLA: Connected to what Rania had to ask you about the way that cities are funding themselves with this money—You open and I believe you mention the Koch Brothers, and you’re talking about the ideology of Reagan and I think you recognize there is a lot of ideology against collecting taxes from people and there’s a lot of ideology against collecting taxes for public services for the public good. How would you put this into a context? It seems like whether Democrat or Republican they are balancing budgets on the backs of poor and working class black Americans.

MURCH: Absolutely. One of the things my piece does is it makes a very strong argument about the relationship between race and class because one thing I am perennially frustrated by is people trying to disaggregate class from race, which is really impossible in the United States. It’s truly a settler colony, and the ways that race functions are inherently about political economy. So the piece is a forceful argument for looking at race and political economy and not trying to separate the two.

What you see is essentially black citizens being targeted and overwhelmingly black municipalities being targeted, and this process of criminalization is something that has a very strong economic dimension to it. You don’t see white people of the same socioeconomic status being targeted in those numbers. That’s where you go back to the history of convict leasing and debt peonage in the United States, which was a system that emerged after Emancipation and Reconstruction. It was kind of the economic piece that reinstituted profound racial control and expropriation.

For more of the interview with Donna Murch, listen here.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."