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September 7, 2015

"The New Peonage"

The title of this post is the title of this notable new article by Tamar Birckhead now available via SSRN. Here is the abstract:

Although the Thirteenth Amendment to the U.S. Constitution formally abolished slavery and involuntary servitude in 1865, the text created an exception for the punishment for crimes “whereof the party shall have been duly convicted.”  Two years later, Congress passed The Anti-Peonage Act in an attempt to prohibit the practice of coerced labor for debt.  Yet, in the wake of the Civil War, Southern states innovated ways to impose peonage but avoid violations of the law, including criminal surety statutes that allowed employers to pay the court fines for indigent misdemeanants charged with minor offenses, in exchange for a commitment to work.  Surplus from these payments padded public coffers (as well as the pockets of court officials), and when workers’ debt records were subsequently “lost” or there was an allegation of breach, surety contracts were extended and workers became further indebted to local planters and merchants.  Several decades later, the U.S. Supreme Court in Bailey v. Alabama (1911) and U.S. v. Reynolds (1914) invalidated laws criminalizing simple contractual breaches, which Southern states had used to skirt the general provisions of the Anti-Peonage Act.  Yet, these decisions ultimately had little impact on the “ever-turning wheel of servitude,” and the practice persisted under alternative forms until after World War II.

This Article, the Author’s third on the disproportionate representation of low-income children in the U.S. juvenile justice system, examines the phenomenon of what the Author calls “the new peonage.”  It argues that the reconfiguration of the South’s judicial system after the Civil War, which entrapped blacks in a perpetual cycle of coerced labor, has direct parallels to the two-tiered system of justice that exists in our juvenile and criminal courtrooms of today.  Across the U.S. even seemingly minor criminal charges trigger an array of fees, court costs, and assessments that can create insurmountable debt burdens for already-struggling families.  Likewise, parents who fall behind on their child support payments face the risk of incarceration, and upon release from jail, they must pay off the arrears that accrued, which hinders the process of reentry.  Compounding such scenarios, criminal justice debt can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, additional court appearances or warrants related to debt collection and nonpayment, and extra fines and interest for late payment.  When low-income parents face such collateral consequences, the very act of meeting the economic and emotional needs of one’s children becomes a formidable challenge, the failure of which can trigger the intervention of Child Protective Services, potential neglect allegations, and further court hearings and fees.  For youth in the juvenile court system, mandatory fees impose a burden that increases the risk of recidivism. In short, for families caught within the state’s debt-enforcement regime, the threat of punishment is an ever-present specter, and incarceration always looms. Ironically, rather than having court fees serve as a straightforward revenue source for the state, this hidden regressive tax requires an extensive infrastructure to turn court and correctional officials into collection agents, burdening the system and interfering with the proper administration of justice.  Moreover, states frequently divert court fees and assessments to projects that have little connection to the judicial system.

This Article is the first to analyze the ways in which the contemporary justice tax has the same societal impact as post-Civil War peonage: both function to maintain an economic caste system.  The Article opens with two case profiles to illustrate the legal analysis in narrative form, followed by several others presented throughout the piece.  The Article then chronicles the legal history of peonage from the passage of the Thirteenth Amendment through the early twentieth century.  It establishes the parallels to the present-day criminal justice system, in which courts incarcerate or re-incarcerate those who cannot pay, including juveniles.  It argues that Supreme Court decisions intended to end the use of debtors’ prisons ultimately had limited impact.  The Article concludes with proposals for legislative and public policy reform of the new peonage, including data collection and impact analysis of fines, restitution, and user fees; ending incarceration and extended supervision for non-willful failure to pay; and establishing the right to counsel in nonpayment hearings.

September 7, 2015 at 10:20 AM | Permalink


Bottom line after all the verbiage, "...establishing the right to counsel in nonpayment hearings."

But here is the most useful and most important passage for today's legal system:

"Several other recent policy reports and white papers have confirmed that states are increasingly turning to court user fees and surcharges to underwrite criminal justice costs and close general budgetary gap. ... it is undeniable that this practice undermines separation of powers by mandating that courts act as fund raising entities for non-judicial programs or agencies created by the legislature or executives."

If any licensed lawyer wants an easy ride to the Supreme Court, take on this subject. File an useful constitutional class action suit against all states with that practice. In contrast to a federal class action against solitary confinement, if the states are forced to give refunds for these unlawful charges, there may also be good money in it.

Posted by: Supremacy Claus | Sep 7, 2015 1:06:26 PM

From the article.

Separation of powers problem, where courts collect revenue for non-criminal justice purposes, an executive branch function.

Effect on judge impartiality, now motivated by money making and job ratings end up based on revenues collected. No longer neutral.

Posted by: Supremacy Claus | Sep 7, 2015 1:24:16 PM

I sat in the back of a New Jersey Traffic court for a couple of hours. I suggest that to all law students. Nothing you have learned will you see in court. And nothing you see in court will you have learned about in law school. This is despite the fact that traffic offenses are to be tried in accordance with the Rules of Criminal Procedure.

In any case, no matter the actual infraction, the plea was careless diving, $400 plus around $100 in costs, no points. The "no points" could not be resisted by any one. At around two minutes a case, the take was around $10,000 an hour. "On January 20, 2013, were you driving carelessly at the intersection of First Avenue and A Street?" "Yes, Your Honor." "$400 plus costs, no points. Next case." One had to come at 9 AM or be excluded. Those wishing a trial had to wait until 2 PM. If the officer did not show up, there was a continuance granted to the prosecutor. And no officer showed up. That meant another day of lost work, costing more than the fine. One Israeli guy began arguing his wife was about to deliver a baby in Israel, and he could not come back. The judge stood up, and repeatedly yelled, "Be quiet. Stop talking." The defendant was immediately surrounded by four thugs, hands on their tasers. When the Supremacy later offered to write a letter of complaint to the Judicial Review Board, the Israeli guy asked it to not do so, "Since I still have to drive around here."

Then they had prisoners on video hookup in jail. One guy was an illegal alien with no assets, now owing $2000 in fines and generating massive costs after 10 days in jail. The judge dismissed all charges sue sponte, without any motions or informal request to do so.

Then a bitter wife, after a divorce, accused her husband of stealing a car in their used car export to the Balkans business. We had a full criminal trial of felony car theft. It lasted 20 minutes, with the judge's not guilty verdict (the obviously just result). Then back to the careless driving parade.

They should charge admission instead of unconstitutional fees.

Posted by: Supremacy Claus | Sep 7, 2015 1:44:17 PM

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