Contact with the criminal legal system comes with a price tag that a growing number of Americans cannot afford to pay. With one in three Americans living with a criminal record, it is no surprise that an estimated ten million Americans owe a total of 50 billion dollars in court imposed fines and costs.
In the wake of the Department of Justice investigation into the Ferguson, Missouri Police Department, and due to the organizing work of activists and advocates, increased public attention has focused on how court debts keep people trapped in poverty and disproportionately cause harm to low-income communities of color. As a result, a growing number of states and localities have halted the practice of suspending driver’s licenses for inability to pay tickets. Yet an under-examined consequence of ballooning criminal court debts is that they often prevent people from being able to clear their records.
Without the ability to clear their records, people who are already in debt and struggling to make ends meet are further excluded from the economy, boxed out of opportunities to access employment, housing, education, and more. And without the ability to secure better employment and higher wages by getting their records cleared, people are even less likely to be able to pay their court debts. Meanwhile, people of means are able to much more easily walk away from their contact with the system than are those who have fewer financial resources.
Take the case of Susan, a Pennsylvania grandmother who has a single misdemeanor conviction on her record. Eleven years ago, Susan got into trouble for defending her daughter who was being bullied. She has been struggling with low-wage jobs ever since, consistently denied better opportunities because of her record. When Pennsylvania passed the first-in-the-nation Clean Slate law in 2018 automating the sealing of old and minor records and expanding eligibility for record clearing, Susan was hopeful she would finally get a chance to put the past behind her. But then she learned she would need to pay an outstanding balance of $800 in court fines and costs before she could benefit from the new law.
Susan is now stuck in a Catch 22, with the impossible burden of coming up with $800. She spends every cent she has to keep a roof overhead and food on the table for her family. Without better employment opportunities, she can’t afford to pay back her court debt. Without paying back her court debt, she can’t clear her record to access better employment opportunities.
Susan is not alone. People of limited means in Iowa face similar barriers to record clearing – even when they have never been convicted of a crime. When a low-income person is arrested in Iowa and cannot afford to hire an attorney, one is appointed for them – at a cost. Even if all the charges against them are dropped or they are found innocent of wrongdoing, they must pay back the fee for their defense. If they cannot afford to do so, they are prohibited from getting their non-conviction records expunged. Essentially, they are punished in perpetuity. Their only crime: being too poor to pay the cost of being mistakenly arrested and prosecuted.
That’s the case for Iowan Jane Doe – a survivor of severe domestic abuse. One night a neighbor called the police after seeing Jane’s attacker chasing her with a knife. In an all too common story, Jane was charged with domestic abuse, instead of her abuser. While her charges were later dismissed, the state charged her $550 for the cost of her court-appointed lawyer. Ten years later, she still cannot clear her record because she cannot afford to reimburse the state for a lawyer she could never afford to begin with.
Fortunately, there are opportunities to right these injustices. The Supreme Court of the United States has the ability to correct Iowa’s unconstitutional scheme by taking up Jane’s case in Doe v. Iowa, in which lawyers from Iowa Legal Aid argue that their low-income clients should not be prevented from expunging non-conviction records only because they are poor.
Moreover, the Pennsylvania legislature can act on an amendment to the Clean Slate law that would require individuals to pay only restitution to victims before their records can be sealed, rather than requiring payment of all criminal court debts. This would allow Susan to get her record cleared now.
And, states and localities around the country can scale back on policies that pile heaps of court debt on people without considering their ability to pay, and then condition record-clearing on payment of those debts.
Hard-working Americans like Jane and Susan deserve a chance to put their past contact with the system behind them. They shouldn’t be prevented from doing so solely because they have limited financial means.