Justice in America Episode 12: The Criminalization of Poverty
Josie and Clint talk with Sara Totonchi, the Executive Director of the Southern Center for Human Rights.
On this episode, we explore the countless ways the criminal justice system criminalizes poverty—and homelessness in particular. From what is considered criminal behavior to how penalties are decided, our system punishes people who are poor or experiencing homelessness in America far more often and more harshly than the wealthy.
We talk to Sara Totonchi, the Executive Director of the Southern Center for Human Rights, an Atlanta-based organization that, among other things, fights the criminalization of poverty in Georgia and throughout the South. Give it a listen!
The Slate interview on recidivism that we discussed at the beginning of the episode is here. Here’s the study.
Here’s more information about the Southern Center for Human Rights.
You should also check out The Appeal’s Explainer on the criminalization of poverty.
Here’s the article from Radley Balko that mentions how crime labs are only paid if their analysis leads to a conviction.
The Fines and Fees Justice Center has a ton of amazing resources on this issue. We highly recommend exploring the site.
No Safe Place, a report by the National Law Center on Homelessness and Poverty, is a critical resource for those wanting to know more.
For those interested in reading more on Ferguson specifically, here are some additional resources:
The PBS News Hour segment on policing and fines and fees in Ferguson is here.
We definitely recommend checking out this short documentary on debtor’s prisons in Ferguson
The Ferguson Commission’s Report can be found here. Additionally, the DOJ report on Ferguson is available to read.
Justice in America is available on iTunes, Soundcloud, Sticher, GooglePlay Music, Spotify, and LibSyn RSS. You can also check us out on Facebook and Twitter.
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Sarah Totonchi: When you look a little deeper you see that the system is actually set up to have two tiers, one for people who have means to purchase their way out of consequences and the other for people who don’t. This two tiered system has really tragic consequences for individuals and for their families when people are forced to stay in jail because they can’t afford to purchase bail, when people are hounded by probation officers because they’re behind on paying fines and fees and ultimately are incarcerated. Individual lives and family lives are absolutely destroyed.
Josie Duffy Rice: Hi, I’m Josie Duffy Rice.
Clint Smith: And I’m Clint Smith.
Josie Duffy Rice: And this is Justice in America. Each show we discuss a topic and the American criminal justice system and we try to explain what it is and how it works.
Clint Smith: Thank you as always everyone for joining us today. You can find us on Twitter @Justice_Podcast, you can like our Facebook page at Justice in America and subscribe and rate us on iTunes. We’d love to hear from you.
Josie Duffy Rice: We opened the show with a clip from our guest, Sarah Totonchi, who is the Executive Director of the Southern Center for Human Rights in Atlanta. The Southern Center as one of the most incredible organizations focused on providing legal counsel to people who wouldn’t otherwise have access and it’s brought and won some extremely important cases. Sarah is brilliant and I’m thrilled she’s going to be joining us today to talk about our topic, which is the criminalization of poverty.
Clint Smith: Yes. Today we’re going to look once again at the intense consequences of being poor in the American criminal justice system and how the system both criminalizes poverty and uses poverty as an excuse to punish a person even more. But first we have to talk about our word for the day. This season, every episode we talk about a word or phrase related to the criminal justice system that we think is misused, misunderstood or just straight up bad. We want you to think twice when you hear the phrase, interrogate its usage and ask yourself, what is it really supposed to mean? Today’s word is recidivism.
Josie Duffy Rice: Yes, recidivism. What a word. It is one of the most popular words in the criminal justice vocabulary. So you hear it used as descriptor, someone will be referred to as a recidivist for example, or you’ll hear it used as a data point, like ‘the recidivism rate is 50 percent.’ Basically, when you hear a high recidivism rate, that’s considered bad because it means that someone has ended up back in the criminal justice system.
Clint Smith: But in reality the word is too simplistic for what it seems to imply. Often it doesn’t actually tell us anything or at least anything meaningful. If your first arrest was for murder and 20 years later upon your release your second arrest was for driving without a license, are you really a recidivist in the way that we tend to think about it? In the way that we publicly talk about recidivism and the way that it’s used in the media, it can often imply that a person is arrested and put back in prison for doing a crime as bad as the one that they were initially in prison for. What if, like we’ll talk about today, you’re back in jail not for harming anyone or stealing anyone’s property, but for unpaid fines.
Josie Duffy Rice: In other words, the fact that you’re a quote “re-offender” because you’ve committed any crime at any time post-incarceration, it doesn’t really tell us anything and we just shouldn’t take much away from a category that broad. You know, this kind of gets back to our point last week too about not liking the words criminal and ex-con and felon, recidivist perhaps doesn’t have the same emotional weight, but it also categorizes people by a static definition that just isn’t particularly useful.
Clint Smith: And another thing, there’s a reason to think that the most conventional wisdom about recidivism is actually wrong. Four years ago, a man named William Rhodes came out with a study that said that the operating beliefs regarding people who have served time in prison, that about 50 percent of them end up back in prison after being released, is actually inaccurate. Rhodes said that in reality about two thirds of people who were previously incarcerated stay out of prison and only 11 percent come back multiple times. According to Rhodes, this misconception is due to a simple error in the sample size. He explains it thoroughly, but it’s a little bit complicated and since we already throw a lot of numbers at you and we’re certainly not statisticians, we won’t try to do that right now. But we will post the study and the Slate interview that he did online at theappeal.org.
Josie Duffy Rice: So these are just things to think about next time you hear someone talk about quote “recidivism” and the “recidivism rate,” ask yourself what they mean and what that data means. We think that the answer to both of those inquiries is that it means much less than people think. All right, so now that we’ve covered our word of the day, it is time to move on to our topic today which is the criminalization of poverty. Fundamentally, what we’re talking about today gets at a much bigger question we’re always trying to answer here, which is what does it mean to be poor in the criminal justice system?
Clint Smith: In past shows, we’ve shared this quote from Bryan Stevenson, who’s the Executive Director of the Equal Justice Initiative and it’s that it’s better to be rich and guilty than it is to be poor and innocent. Today one of the ways that the American criminal justice system criminalizes poverty includes doing it through fees and fines. We usually start with background information, but today let’s actually begin with a few examples.
Josie Duffy Rice: So in Augusta, Georgia there was a homeless guy named Tom Barrett. Barrett stole a beer from the corner store. It was one can of beer worth just about $2. So Tom was arrested and he was offered a court appointed attorney but it would’ve cost him 50 bucks, which he couldn’t afford. As we mentioned, Tom was homeless. So he went to court without an attorney and he found himself in a lot of trouble.
Clint Smith: He faced more than $400 a month in fees, including a daily rental fee for his ankle monitor. The fees mostly went to a private probation company called Sentinel, but again, Tom was homeless. He sold his plasma to the blood bank to get money, but every time he only made about $35, so of course Tom couldn’t pay those fees that were imposed on him and even beyond the fees, he was now owing late payment penalties, so very quickly it added up to over a thousand dollars that he owed the court and the private probation company. Eventually a judge who’s court had an exclusive contract with Sentinel sent him to jail for not being able to pay. And here’s another story. In Texas, a woman named Janet Blair-Cato had a bunch of dogs that she had rescued. She got something called a barking ticket. Basically her dogs were too loud, so the cops wrote her a ticket. I didn’t know that was the thing, but apparently it is. Then she got other fines for not having the proper vaccinations with the dogs and not having the right tags. Additionally, she also had an unpaid speeding ticket on her record. Suddenly, out of nowhere, Janet finds herself owing thousands of dollars in fines. She got on a payment plan with the court, but missed just one installment, so they issued a warrant for her arrest.
Josie Duffy Rice: Now, her original infractions, her dogs are barking too much, her animal registration issues, her speeding ticket, these were not punishable by jail, but because she missed an installment on her payment plan, now she could actually serve time and the court told her either you pay all the money or you go to jail. They wouldn’t let her just go to jail on weekends or do community service either, but she could not afford to pay all that money. She just didn’t have the money. So she spent 52 days in jail for unpaid fines.
Clint Smith: And this is by no means an isolated anecdote. There are countless examples like this where the criminal justice system makes it a crime not to have money and punishes people just for being poor. Meanwhile, the system is profiting and making money off of them. And that’s what we’re going to talk about today.
Josie Duffy Rice: So here’s a clip from a short documentary film called A Debtor’s Prison of a woman in St. Louis who was incarcerated after she couldn’t pay her fines and fees.
Woman: Even if you get all the down to owing this one last payment, you miss that payment, your ass is going back and starting over. You get new fines, new court dates and they want to keep you in the system. Nothing says, ‘Hey, we see here you have five kids. We see your rent’s due. We see your lights are off. You still have to pay for daycare. Go ahead and skip this last payment because you have a life to live.’ It’s like, ‘Fuck your life. Pay us our money, fuck your life.’ And they have fucked me last.
Clint Smith: So there are two things at work here. The first is how the system criminalizes poverty through the actual infraction and then the other is how it criminalizes poverty throughout the entirety of the process from appearing in court to the sentencing. So let’s talk about the first one to begin.
Josie Duffy Rice: Back in the 1960s, the Supreme Court ruled that you can’t punish someone for a status or a condition without them being guilty of a specific illegal act. So you can’t punish someone for being an addict, for example. You can punish them for possessing drugs, using drugs, selling drugs, but you can’t punish them for their actual condition as an addict. This would lead one to believe that you can’t criminalize the status of being homeless and maybe that’s technically true, but in countless towns and states across the country, being homeless has been made basically illegal.
Clint Smith: There were about 2 million people that experience homelessness in a given year. And on any given night, there are roughly half a million people going to bed without a home and about a quarter of them are children and 15 percent of them haven’t had a permanent home in many years. Unsurprisingly, black people make up a disproportionate part of the homeless population. Black people are about 13 percent of the general population but comprise 40 percent of the homeless population. Military veterans and domestic violence survivors and people with mental or physical disabilities are also more likely to be homeless than their counterparts. In many places, one of the causes of homelessness is lack of access to services, mental health services, social services and critically housing. When affordable housing is scarce, homelessness is more common. One report found that nationwide there’s about a 7.2 million unit shortage in affordable housing.
Josie Duffy Rice: But instead of solving homelessness by building more housing for example, cities and states are criminalizing it. Like in Colorado. 76 cities in Colorado have passed 351 ordinances all targeting the homeless. They’ve banned stuff like sitting too long, sleeping outside, sharing food outside, camping, lots of places call these quote, “quality of life ordinances” and this is happening across the country. In Honolulu, the tourism lobby has pushed for laws that criminalize homelessness as not to discourage tourism. In Dallas, 11,000 sleeping and public citations were issued to homeless people over four years.
Clint Smith: So there are some really cruel laws out there and they’re pretty inventive in their cruelty. There are laws saying that you can’t place property on sidewalks. Laws saying that you can’t sleep in your car and even laws that make it illegal to distribute food to homeless people without a permit.
Josie Duffy Rice: Yeah. There are literally places where you can get arrested for distributing food to homeless people. It’s ridiculous.
Clint Smith: They’re also stay away orders which make it impossible for some homeless people to have access to the services that they really need. Take San Diego, for example, where social service providers are mostly located downtown, but if a homeless person is found sleeping on the street, the police will issue a stay away order, which means they can’t go to any of those locations. So when a person who’s homeless is making this calculus about whether or not they should go get assistance, sometimes they might not risk it because of the possibility that will be arrested. And what do you think the punishment for many of these infractions is? It’s fines. And fines people can’t afford to pay.
Josie Duffy Rice: Right. If you do any of these things which indicate that you don’t have enough money to buy a sandwich even, basically then you now owe a whole bunch of money and fines, and if you can’t pay the fines, now you’re looking at jail time. Now, this may be confusing to some of you because debtors’ prisons are supposedly illegal in America and as a quick side note, a debtor’s prison is a prison full of people who owe money. It’s pretty self explanatory and they’re seen as kind of barbaric now, but they were common through the mid 19th century where a person with unpaid debt could be hauled off to prison until they had either worked it off or managed to get enough money to pay it off.
Clint Smith: They were really big in Europe and also here for a while. In fact, James Wilson, who was a Supreme Court justice and who signed the Declaration of Independence, spent some time in a debtor’s prison while he was on the Supreme Court.
Josie Duffy Rice: Yeah, and Robert E. Lee also spent time in a debtor’s prison.
Clint Smith: Well, I don’t think anyone should spend time in a debtors’ prison, but I have to say, Robert E. Lee isn’t somebody that I feel too bad about.
Josie Duffy Rice: Yeah, that one I’m not losing any sleep over.
Clint Smith: Anyway, in the 1970s and ‘80s, there were a few major court decisions that really reinforced the idea that basically debtors’ prisons were unconstitutional because they violated the equal protection clause. In other words, you can’t punish poor people more simply because they’re poor.
Josie Duffy Rice: But spoiler alert, that’s exactly what we’re doing in courtrooms every single day. We levy exorbitant fines and then we punish people if they can’t pay them and we punish them with jail time. And this isn’t rare. It’s actually common. So think about Ferguson, Missouri. We talked about Ferguson last season. That’s the town in St. Louis where Mike Brown, an unarmed black teenager, was shot and killed by a white cop back in 2014. And after Mike Brown’s death, Ferguson and its criminal justice system were under a very close spotlight and it became clear that police brutality was just one of the many problems in that system. So here’s a clip from PBS NewsHour and this is Reverend Starsky Wilson. He was a member of the Ferguson Commission and here he is talking about profit driven policing in Ferguson.
Starsky Wilson: This is not just about policing. It’s about policing as connected to the municipal courts in our region. It is uniquely driven by municipal fragmentation that costs money and so the revenue source that is most controllable is that that comes from tickets, fines and fees. And so that’s the spicket that got turned on in this situation.
Josie Duffy Rice: And here’s another clip from the short documentary film, A Debtors’ Prison. This clip is from inside a courtroom in Ferguson where a judge is telling people the fines that they owe.
Judge: Expired temporary tags. How do you plead? [inaudible] Unfortunately that’s not a defense. You’d think it would be but its not. $75 plus cost. Uh, Mr. Evans, you’re charged by the city with high grass or weeds violation? How do you plead? High grass and weeds just $75 plus cost. Okay? Thank you sir. On the loud music, how do you plead? That’s just $50 plus cost. On the stop sign, how do you plead? Okay, that’s just $100 plus cost. And no operating license we’re going to continue that November 25th. Okay.
Clint Smith: So you heard the judge saying over and over again, “plus cost.” This means plus the court costs. So you can think of the number. He says 50, 75 or 100 as the fine itself. And you can think of the plus cost as the fee. It’s the administration fee basically and often it’s actually multiple times more than the fine. You might get $100 ticket and ended up paying $350 because of the fees.
Josie Duffy Rice: So the situation in Ferguson and in Missouri more broadly is indicative of the larger problem across the country. In Ferguson, which is a pretty small town, 90,000 citations were given out in just four years. The department brought in $2.6 million in fines and fees in one year. In another Missouri town called St. Ann, the police department went from writing 3,500 tickets in 2009 to 10,000 in 2014. So that’s almost a 300 percent increase in just five years. And often police basically have to write all these tickets, like this is what their job depends on. There’s one story, also out of Missouri, where the mayor wrote police officers a letter saying they needed to keep up with the tickets and the arrests and the citations because otherwise it would directly affect their pay.
Clint Smith: And ticketing quotas aren’t that uncommon. Often the ticketing comes through traffic infractions, which I imagine all of us have experienced to some degree or another. Some cities are even proactively attempting to make this difficult for people. They’re doing stuff like shortening the length of yellow lights to ensure that more people run red lights so that more people get pulled over and so that more people have to pay fines, which is terrible for road safety, but a great if immoral way of racking up money.
Josie Duffy Rice: But you can also be fined for other truly ridiculous stuff aside from traffic violations. So in Ferguson you can be fined for having your trash cans out on the wrong day or wearing saggy pants or quote, “walking in the roadway.” And we talked about this last season on our episode about Ferguson, but overall across the country, fines and fees have gotten just much more extreme over the past few years. Between 2010 and 2014 alone, 48 states increased criminal and civil court fees. So basically if you even break a very minor city ordinance or something, you could now find yourself looking at a lot more money that you’d have to pay to get free.
Clint Smith: So at what point in the process to these fines and fees happen and where does the money go? Well, to answer the first question, these fines and fees can happen pretty much at every stage of the process.
Josie Duffy Rice: We’re going to walk you through a case and talk about all the points at which you might get fined. In other words, every place that you might have to pay a lot of money.
Clint Smith: Let’s say you’re pulled over or cited for something, there’s a fine that’s associated with the citation or the charge and along with the fine, you’d have to pay a fee or five different types of fees. Ultimately, let’s say the ticket would run about $500, fines and fees included.
Josie Duffy Rice: And let’s say that you already have a warrant out for another unpaid ticket or something. So now you have the cost of the previous ticket and have your new ticket of course. But you also may have to pay a bench warrant fee, which is just a fee because there was already a warrant out. And then if you’re arrested, you may have to pay a booking fee, just a fee because you were arrested. But back to the ticket. So you could either pay the fine, remember the fine is about $500 or you might decide you want to fight it in court. For example, a traffic ticket. Let’s say you really think you weren’t doing something wrong and you want to fight back. In some places like Massachusetts, you may have to pay a fee to appeal your ticket. Think about that. To prove that you shouldn’t be fined, you may have to pay a fee. In Massachusetts, people were charged a $275 fee to appeal their traffic ticket. And when two people sued their tickets had been just $15, but they were forced to pay $275 to fight it, the court ruled that the fee did not violate their rights.
Clint Smith: Now, generally, you’re not permitted to have a court appointed counsel in traffic court. But let’s imagine it’s a charge where you might be entitled to counsel. In North Carolina, you have to pay the court a $60 fee to assess whether or not you’re even entitled to a public defender in the first place. So you haven’t even been appointed a counsel, but you’re still racking up charges because maybe, possibly, perhaps you could be appointed the counsel and then if you are appointed lawyer, in over 40 states, you have to pay a fee to use that public defender. In North Carolina, you have to pay them an hourly fee. You know, just like you would a regular lawyer, except the entire point is that you have a court appointed lawyer because you can’t afford a regular lawyer. So nothing in this process really makes any sense.
Josie Duffy Rice: Yeah. And in some states if you’re held in jail pretrial, you may have to pay a fee. And then of course there’s bail, which we covered in our first episode last season. Then let’s say you decide to take your case to a jury. Well in some states, like North Carolina, they charge you for that too. You have to pay just to have a jury trial despite the fact that a jury trial is one of the most fundamental constitutional rights that we have. And then let’s say that your case requires crime lab testing. Well you may have to pay money for that as well. Again, in North Carolina, I don’t know what’s up with North Carolina, Clint you used to live there, what’s going on there?
Clint Smith: It’s an interesting place.
Josie Duffy Rice: Yeah. But anyway, in North Carolina, a defendant who needs crime lab testing may have to pay about $600 for that testing. And one crazy fact that I read in a piece by Radley Balko in The Washington Post is that in some jurisdictions the court only pays a crime lab for its work if they find evidence that leads to a conviction. So if a crime lab discovers that this guy shouldn’t be on trial, there’s no DNA or there is no testing that indicates that this guy is in the wrong, they’re not getting paid. And if they discover that this guy should be on trial and it leads to a conviction, then the fees, the $600 fee in North Carolina, is then passed on to the defendant. So the incentives are just outlandish.
Clint Smith: And then after you’re convicted, in most places you rack up room and board fees for the entire time that you were in prison. And when you’re on probation and parole, that’s when you incur even more fees, hundreds of dollars for ankle monitors, drug testing fees, mandated classes cost money and so do background checks and there are even monthly fees just for being on probation.
Josie Duffy Rice: So we’re talking about all of this money and I think a really important question here is where is all of this money going? And the answer is it sort of depends, but sometimes it’s the state or the city or the town that you live in. You know, as local and state budgets have been just cut and slashed and reduced as much as possible, lots of places are trying to make revenue off of the backs of those who are arrested, those who are facing criminal charges. So really all this does is encourage police to arrest more people and encourage prosecutors to convict more people.
Clint Smith: But it’s not only states and cities, it’s private companies too. We don’t just mean private prisons. For-profit companies are involved at every step of the process, particularly parole and probation. This works out great for the city or county who often don’t have to pay anything to the company. Instead, they contract with these corporations so that they can make money off of the people in the system. In some places like Tennessee, it’s been alleged that these companies also get to set the terms of the probation arrangement. They might decide you can’t drink alcohol even though that was never part of the court’s requirements. In some places, they also can revoke your probation without any real reason. Private companies have gotten involved in every level of the criminal justice system. They run private halfway houses and even for-profit residential treatment facilities, they have every single incentive to keep you in the system and virtually none to get you out of it. It’s horrifying.
Josie Duffy Rice: Yeah, and I think this is worth talking about Clint because this is really, it really perverts the entire idea of a criminal justice system. Criminal justice system is supposed to help you get better. It’s supposed to address your wrongdoing and then it’s supposed to let you go. It’s not supposed to have an incentive for keeping you there, but the fact that we’ve incorporated so many fees and fines in our system and the fact that our system is making so much money off of people who often don’t have any, just really kind of destroys the initial incentives of a system like this. So two quick stories before we talk to our guest Sarah Totonchi. First, in Nevada, a woman named Leslie Turner had a baby two months premature and if you’re unfamiliar with the whole baby thing, that’s a very, very scary thing. Two months premature means the baby’s still very small. It’s going to have to spend time in the hospital, might face some health problems and Turner’s child had a condition that gave him these involuntary muscle spasms because his nervous system was underdeveloped. So when he was four months old, she was pulled over and she had an outstanding traffic ticket that she hadn’t paid and she was arrested. She had a four month old baby at home who obviously had health issues and she was breastfeeding. And again, if this isn’t something you’re familiar with, she just couldn’t feed her kid for five days, it wrecked this horrible, horrible pain on her body.
Clint Smith: Another story, this one even more extreme is in Mississippi. A woman, a black woman, just like Leslie Turner, was pulled over for a minor traffic violation. Turns out that she had unpaid court fees. Her baby was with her just a few months old. She was arrested and the cops now said that because she was arrested, she had abandoned her baby. Her mother, the child’s grandmother, rushed to the scene and got the baby, but officers still insisted that the mother go in front of a family court judge on charges of abandonment. Less than an hour later, custody was awarded to the grandmother of the baby and a judge forbid the woman from seeing her child until the court fees were paid off. Forbid her from seeing her own child and she didn’t see her child for 14 out of the child’s first 18 months of life. This is what the system consistently does to poor people. To talk to us more about this, Sarah Totonchi, the Executive Director of the Southern Center for Human Rights. So stay tuned.
Clint Smith: We’re here with Sarah Totonchi who is Executive Director of the Southern Center for Human Rights here in Atlanta. Sarah, thank you so much for joining us.
Sarah Totonchi: Thank you so much for having me.
Clint Smith: We’d love if you could just start kind of talking about what the Southern Center for Human Rights does and, and how you found yourself involved in this work?
Sarah Totonchi: Thanks. Um, so the Southern Center for Human Rights has been working for equality, dignity and justice in the criminal legal system for more than 40 years. We’re based right here in Atlanta, Georgia. And we have been working to really shine a light on the parts of our criminal legal system and our correctional system that are deeply problematic, that don’t reflect who we believe we should be as American people, uh, and using a multifaceted strategy to bring about the change we want to see. So we use litigation to challenge systems that are unconstitutional or inhumane. We use public policy advocacy to try to transform entire systems or state policies and we do a whole lot of public education to make sure that folks who are impacted by the system and the people who love them know things that they can do to advocate for themselves.
Clint Smith: What does that public education look like? I think that’s really interesting because public and political education is something that is so important and I think has been so important for each of us in this room and that shapes how we approach this work. But it often feels like that’s not something that a lot of organizations are doing. Like they’re doing advocacy work. They’re doing work on behalf of these communities, but there often isn’t be the work being done to connect the public to understanding the social, historical, demographic, geographic context that creates certain social conditions which make certain types of work necessary in the first place. So how do you all think about your role in that?
Sarah Totonchi: Well, the Southern Center for Human Rights is thirty people here in Atlanta and the work that we have to do is enormous, um, uh, throughout the deep south. And we know that, um, in order for us to be effective, we have to look to the people who are most impacted by the system to guide us. And so what we’ve found to be an incredibly important part of our work is partnering with local organizations, whether it’s the local chapter of the NAACP or a church or a citizens group or with people who are reaching out to us because they’ve experienced horrible things when they’ve come into contact with our courts. And it is truly those voices and those experiences that help us decide the kind of work we’re going to do to determine what is the most urgent need at this time. And together we are able to achieve so much more. Some of the biggest successes of the Southern Center for Human Rights were not done by us alone. I think about the work that we did in establishing for the very first time in Georgia a public defender system. Believe it or not, our public defender system is only about 15 years old here. And um, prior to that we had this patchwork broken system where the kind of justice a person got depended on where they lived. Um, but with communities across the entire state, through litigation, through legislative advocacy, through a media campaign, we were able to build a new system that continues to need work, but it is much better from where we were at before. Similarly, the other big successes of the Southern Center for Human Rights is that we’ve had five wins at the United States Supreme Court in death penalty cases, um, all five dealt with race discrimination and inadequate assistance of counsel and in each of those cases we partnered with groups of people who are directly impacted by the race discrimination that was happening in that community to make our case to the highest court about why what we were saying was important.
Josie Duffy Rice: That’s amazing. So to your point, you guys work on so many issues from death penalty to solitary confinement, prison healthcare, but a large part of your work has either been directly or tangentially related to the criminalization of poverty, um, and trying to alleviate what you’re seeing in Georgia where things I think are particularly bad. How long has that been so important and why is that such an integral part of your work?
Sarah Totonchi: So we have been sounding the alarm on the problems with the criminalization of poverty for more than 15 years at the Southern Center for Human Rights. Every day the things that we see in the courts and in the streets show us that the kind of justice a person gets varies dramatically based on the color of their skin and the amount of money they have in their pocket. When you look a little deeper, you see that this system is actually set up to have two tiers, one for people who have means to purchase their way out of consequences and the other for people who don’t. This system, this two tiered system has really tragic consequences for individuals and for their families. When people are forced to stay in jail because they can’t afford to purchase bail, when people are hounded by probation officers because they’re behind on paying fines and fees and, um, ultimately are incarcerated. Individual lives and family lives are absolutely destroyed. But this problem goes beyond the individual and really impacts the way that large parts of our community view the courts. Every year in the United States there are 102 million new court cases brought.
Clint Smith: 102 million.
Sarah Totonchi: 102 million new court cases and 54 percent of that number are traffic and ordinance violations. So the, the predominant way that Americans are encountering our courts are through these extremely low level courts where when a person experiences going to court for a traffic ticket or for perhaps getting a ticket for not mowing their lawn. The consequences vary dramatically on whether or not you have money to just pay your way out of the problem or not. Um, and unfortunately people across Georgia across the south and across the country who don’t have that money to pay are experiencing really serious consequences which not only impact their lives, but discredit and demean public confidence in our courts. Um, which is a really big problem for us as Americans.
Josie Duffy Rice: So we discussed earlier on the show just some examples of the fines and fees that people are paying or some of the ways that these costs are haunting them. And so I was hoping you could talk about some of what you’ve seen, either individual cases or specific to the actual fines.
Sarah Totonchi: The use of fines and fees to fund, um, court systems and local municipalities has been totally normalized in American culture. And what we have found through our years of investigating, litigating and advocating around this is that cities and counties and states have been extremely creative in crafting fine and fee equations that will yield the most money for their operations. One of the first scenarios that we exposed was, um, that a jail in Clinch County, Georgia was a charging people room and board fees. So when a person was released from jail, they would actually get a promissory note saying that they had to pay X amount of dollars for the amount of days they stayed in the jail. And if they didn’t pay that, they’d be rearrested. And since then we continue to peel back this onion of fines and fees and the things we found, just are really shocking to the conscience. There was one case where we started, uh, watching this judge down in Grady County, Georgia, who had created out of whole cloth an administrative fee of $750 that he imposed upon every single person who had the misfortune of coming before him in court. It generated so much money for his, um, local government that he actually went to his county commission and said, ‘I’ve raised this much money for you. I’m entitled to a raise in my salary.’
Josie Duffy Rice: Wow.
Sarah Totonchi: And meanwhile this was, you know, tripling and quadrupling what people actually owed to the courts.
Clint Smith: Is this a arbitrary number he just came up with?
Sarah Totonchi: He just came up with it and he was so proud of it. This judge has actually been removed from the bench as a result of, of this being exposed.
Clint Smith: When was this?
Sarah Totonchi: Um, this was just a few years ago. Um, and then even just recently, just, um, we resolved this case last year in Columbus, Georgia um, we became aware of this really unbelievable, um, fee that was being imposed upon victims of crime. Our extraordinary and courageous client, Cleopatra Harrison, who was profiled in cosmopolitan and I encourage everyone to go read her interview because she’s amazing, but she went through a very, very difficult time. Um, she was in an abusive relationship. Um, and her boyfriend at the time had beaten her and even strangled her. She had bruises on her throat. She was subpoenaed by the police to testify against her boyfriend in court and like many victims of domestic violence she had great reservations about doing that. When she told the court that she didn’t want to testify the judge then imposed upon her a $150 victim fee.
Clint Smith: That’s absurd.
Josie Duffy Rice: I think I remember this story because the logic was, ‘you wasted our time, we spent time looking into your case and that’s wasted money, so now you have to pay us.’
Sarah Totonchi: That’s exactly right, and you know that really flies in the face of what we know about intimate partner violence. Actually, before I was at the Southern Center for Human Rights, I did domestic violence work and what we knew was that it took an average of seven times leaving before a victim would actually stay gone from a person who was abusive towards them, and so to create this kind of penalty actually incentivizes people who are in violent situations to stay where they are. But Ms. Harrison was brave and she served as a plaintiff in a lawsuit that we brought that not only ended this policy of victim fees once and for all and recouped the money for the victims of crime that had been charged it, but it also removed that judge from the bench. But these examples are just like the tip of the iceberg of the incredibly creative ways that courts in Georgia are generating funds for operation on the backs of poor people.
Clint Smith: So I’m curious to hear more about the work you all have done around the death penalty and solitary confinement because I think that those two things represent the sort of most egregious and extreme ends of the criminal justice system and also two things that still tend to be pretty misunderstood by the general public. And part of the goal of this podcast is to help people understand things that they may have thought they understood, but like in a more, um, in a fuller, more robust way. And so I’m wondering if you could talk about both of those phenomenon and why your organization finds it so important to tackle those two things?
Sarah Totonchi: Thank you. So maybe I’ll start with solitary confinement. Solitary confinement is a practice where people are held alone in very small, frequently very dark spaces inside prisons for any period of days to even years. Sometimes this is punitive. A lot of the time we see that it’s um, a consequence for behavior that correctional staff find problematic. Other times it is said that people are being put in there to protect them or because they’ve had mental health issues. We have really ramped up our work challenging solitary confinement in the last couple of years at the Southern Center for Human Rights. There is very little exposure of solitary confinement practices in our country as a whole. There is very little known about it. In all the work that we do I feel like it is the part of the criminal justice system that needs the most light shined on it right now. And so what we’re doing is we are currently challenging Georgia’s Special Management Unit, which is the notorious section of one of our prisons where solitary confinement is carried out in the most harsh way. The people who stay there, their space is about the size of a parking space. We have photos of these spaces and if you’re interested in seeing them, please visit our website at www.schr.org. You can see photos of these cells and what you’ll see that is in many cases, um, the teeny tiny window that’s there is papered over so no light can get in. You will see how the shower that’s in place, if it is used, um, it floods the entire space. What we uncovered here in Georgia is that people are being kept in literally these concrete boxes for a not days, not weeks, not months, but actually years and in a couple of cases, in excess of 10 years.
Clint Smith: I’ve heard people say before that if you wanted to get a sense of what solitary confinement is like, you should attempt to lock yourself in your bathroom for 23 hours a day and that, that wouldn’t even come close to recreating what the conditions are. But as part of what happens is that part of how prisons and these different parts of the criminal justice system operate, is that it relies on, it is predicated on social isolation and it was predicated on us not really knowing the actual process of dehumanization that happens in these spaces. And so what we do is we try to create metaphors or things that are relatively commensurate to give people a sense and I’m always trying to figure out to what extent we’re helping and creating more empathy versus to what extent we’re, we’re doing a disservice in not actually capturing the horrific nature of what is actually happening in the institution. So I wonder what you think about that as a sort of comparison and how you attempt to convey the nature of what the social conditions are like to the broader public?
Sarah Totonchi: I think it is very hard for us as free people to replicate the conditions of solitary confinement. I mean the extraordinary isolation. When you imagine even in the times that these individuals are allowed out of their cell for recreation, the “recreation,” I’m making air quotes, um, is, you get put in a cage outside, a small cage outside. You know, it is very hard for us to really replicate that as free people. And in fact, um, the conditions are just so harsh in Georgia that we, in our litigation, we’re working with one of the nation’s foremost experts on the impact, the psychological impacts of solitary confinement, and when he was here he said, um, that our system is one of the harshest and most draconian he’s seen in 40 years of practicing and that um, the people inside it are amongst the most psychologically traumatized persons he has ever assessed. This practice of locking people away alone in a concrete box for years on end is both cruel and entirely counterproductive to the goals of public safety and rehabilitation.
Josie Duffy Rice: I was talking to someone the other day who just, just to underscore how people don’t really understand the extent of the torture of solitary confinement. Someone said to me the other day, ‘I think I would like it, I really liked being alone,’ you know, totally well meaning.
Clint Smith: It wasn’t malicious.
Josie Duffy Rice: No. But because nothing can convey how, that it is actual torture, you know, it’s funny you said the bathroom thing because I’ve never thought about that. And the idea of being in my bathroom for 23 hours-
Clint Smith: Yeah, can you imagine? With no phone, with nothing.
Josie Duffy Rice: Right. You’re just sitting there, right. It sounds awful. And it’s nothing compared to what, right?
Sarah Totonchi: When we were touring this facility, um, and that’s where these photos that I referenced came from, people were, um, we saw men putting up the words “help” in their teeny window that reached out, there were men who had injured themselves who were actively showing us their wounds. It is absolutely horrible in there and it is not something that should be happening in this country. Um, so it is our hope to shine a light on some of these really dark places and do this really tough work because we don’t believe it has any place in our culture.
Josie Duffy Rice: So one of the things that I find really amazing about Southern Center is that it seems like so much of the terrible stuff that you guys have uncovered from the voting fraud stuff to the fees and fines to the solitary confinement is happening in these very small areas, these very rural areas where there just is not a lot of light being shown from the outside. And so how are you all finding these stories? How are you all bringing attention to these things that really, if you guys weren’t trying to get them, would just go on addressed I think?
Sarah Totonchi: You’re absolutely right. The things that we are working on, there is a theme there of um, extreme power that has gone unchecked for generations and the way that we find these things is a combination of getting calls and letters and emails from people who are experiencing the system, but really the majority of it is following up on those things with boots on the ground investigation. Our team puts hundreds of thousands of miles on our cars every single year visiting jails, watching courts, interviewing people in prisons, talking to folks in the community. There’s simply no replacement for this kind of in-person investigation and when you’re fighting the kind of fight that the Southern Center fights, you know, we do this work in a part of the country where the criminal justice system is particularly harsh and we have a very robust history of race discrimination. It is always a David and Goliath fight and we are always in a place of disadvantage. So when we bring a case, we have to make absolutely sure that we know absolutely every fact of what’s going on. I’m 17 years in at my time at the Southern Center and I’m still incredibly inspired and impressed every single day by my colleagues and they’re the high quality of their work, the revolutionary nature of their work and the incredible effectiveness that they wage these battles in a hospital system and win.
Josie Duffy Rice: If not for you all, I’m thinking about this case, the voter fraud one, which this woman had been tried already, she had already gone to trial. It had come back, uh, a hung jury and she was being tried again and Southern Center came in and was her representation. And it was one of your attorneys that discovered that she was being charged with something that wasn’t even a crime. It wasn’t even listed in the criminal statutes. This is not a reflection on her previous lawyer. It’s just, if it’s not, if you guys aren’t there, who is representing these people? The public defender system I know exists here, but with the fees, with the money that they’re having to pay, with the caseload, it just must, you know, there just is not another, a second tier here.
Sarah Totonchi: Yes. Um, as I hear your words, I feel the weight of, um, some of the responsibility we carry because in other parts of the country, organizations like the southern center are a dime a dozen. Um, in other parts of the country there are thousands of activists who are clamoring when something happens like what happened to City Commissioner Olivia Pearson, who you’re talking about, it’s just not the same here in the Deep South. And so we take this responsibility very seriously. We really embrace our responsibility to dissent from the prevailing system and to push back and to use our skills and our resources and our privilege to transform the system and to shine light and to really promote liberty and dignity and equality.
Clint Smith: Something I didn’t know is that Georgia has the nation’s largest population of people on probation. So could you talk about the difference between probation and parole? Because I think a lot of people don’t actually understand that those are two different things. And then talk specifically about why is Georgia like this? Like why, why does it have such a large amount of people on probation and how does, what role does money play in that and who’s profiting off of that?
Sarah Totonchi: Okay. Um, so to start with the difference between probation and parole. So probation is part of a sentence. It’s part of what a judge would impose on a person who has been found guilty of an offense. Sometimes a sentence can be just probation, which means they’re serving their sentence in the community, sometimes it can be prison time plus probation at the end. Parole on the other hand is not a right, it’s not part of sentencing, but it is something that happens at the end of a person’s prison sentence. Uh, if a person has abided by the rules of prison, has used that time in a productive manner, has gotten their GED, has taken whatever classes are available to them, a parole board may be inclined to release them to the community earlier than when their sentence would be over. And so these are both forms of still serving your sentence though you are in the community. Some folks have to wear ankle monitors when they’re on probation or parole. While it is definitely different from serving time in prison, both probation and parole are still really serious sentences that have dramatic impacts on the way people can live their lives. So here in Georgia, um, we do have the highest probation population in the country and um-
Clint Smith: Is that raw number or per capita?
Josie Duffy Rice: I think it’s both.
Sarah Totonchi: That’s right. And we have the highest correctional control rate per 100,000 people.
Clint Smith: So for probation, parole and incarceration?
Sarah Totonchi: Yes. But in Georgia we have at last count 464,000 people on probation, which is a huge number. Our prison population is about 56,000 people. So, um, and-
Clint Smith: Wow. So there are almost eight times more people on probation than are incarcerated in the state of Georgia.
Sarah Totonchi: That’s exactly right. So, and um, while a number of these folks are serving probation in the context of being convicted of a felony and perhaps as I said before, you know, on the back end of a prison sentence or instead of going to prison, we have a huge population of people on probation for misdemeanor offenses. And um, when I say misdemeanor offenses, I’m talking mainly about traffic offenses and things that are being adjudicated in our lowest courts. And of those people, 80 percent of people on misdemeanor probation in Georgia are supervised by private for-profit probation companies. We would argue, and I think we can prove that the reason Georgia has such a high number of people on probation is because there are companies that have a financial incentive in driving the numbers up as high as possible so they can make as much money as they can. And so to briefly break down the way private probation works in Georgia is if I were to get a speeding ticket, which I’ve definitely gotten before, I would report to court, um, I would be told how much I, my fine and my fee from the court and, you know, say that amount is $400. I am privileged in that I have a checkbook and a bank account that I can just write a check right then and be done with it and never think about it again until maybe my insurance bill comes in and it maybe goes up a couple points. But that’s the worst consequence that I’m going to face. For a person who cannot afford to pay that $400 on the day they go to court they get put on a payment plan under the supervision of a private probation company, which means they have up to a year to pay off this amount, but in addition to paying what the court has imposed, they also have to pay additional fees assessed by the private probation company. At minimum, we’re looking at $50 more a month for supervision fees. We have seen numerous cases where there are a range of other fees. There’s a fee for having your picture taken. There is a fee for, um, they insist on drug tests even when the case involves nothing with drugs. They may say you need to take an anger management class that, oh, happens at the private probation company and you’ve got to pay for that too. Um, so what happens is that a person who doesn’t have the means to pay on the day of court winds up paying two and three and four times more than I would.
Josie Duffy Rice: When you say supervision fee, are they actually doing any supervising unless they are saying come to this class or anything like that?
Sarah Totonchi: The supervision is almost nonexistent. Um, what supervision visits mean is that a person has to show up at the private probation company and put down money. In some situations we’ve seen people have to report monthly, in other situations, numerous situations, we’ve had people forced to report weekly. When you, um, think about what a weekly report would mean for a person in rural Georgia where there is no public transportation, trying to hold on to a job or take care of your family. We’ve had clients who have walked 10 miles each way to report weekly.
Clint Smith: Wow.
Josie Duffy Rice: Unbelievable.
Sarah Totonchi: It is absolutely devastating to people’s lives and these companies are absolutely predatory and we’ve seen the way they prey upon some of the most vulnerable people in our community. Um, we brought a case on behalf of a man named Adel Edwards from Pelham, Georgia in South Georgia. Mr. Edwards is a senior citizen. He’s intellectually limited. He lives on food stamps. The house he lives in has no running water and he got a ticket for burning leaves in his yard without a permit. He reported to court, he was assessed a $500 fine for this offense of burning leaves, but because he couldn’t pay it that day, he got put on a payment plan under a private probation company and his debt rose to over a thousand dollars, which may as well have been a million dollars for his inability to ever pay it. What’s more is that um, because he couldn’t pay a $250 down payment that this company was insisting on, he left court that day in handcuffs in a police van and went straight to the jail until some people in his community were able to purge him. This is not justice. This is not public safety. This is the criminalization of poverty. A person with means would never face a scenario like Mr. Edwards. Mr. Edwards did have a positive outcome. He served as the lead plaintiff in a case that challenged the local municipalities and the private probation company. And not only did he recoup the money that was illegally taken from people in his community, but this lawsuit played a big role in this company being shut down forever.
Josie Duffy Rice: So it’s clear what’s in it for the company, right? They’re getting money. What is in it for the municipality? Are they getting money from these companies? Why are they choosing to contract with these companies? What is in it for them?
Sarah Totonchi: So the companies are telling a local government, uh, ‘Let us act as the collection agencies. You won’t have to do a thing, it won’t cost you a thing. We’ll just charge a little bit over the top to make it worth our while and we’re going to recover the money that you have assessed in a better way than you can.’ And so you can see why that could be attractive to some local governments.
Josie Duffy Rice: Definitely.
Sarah Totonchi: Especially in places that tend to be more conservative leaning. Places where raising taxes is frowned upon. Raising money in the courts is a really great way to supplement city budgets. This was something we saw in the Ferguson Report where we saw how the Ferguson government was pre-budgeting the amount of money that they would collect from people in their courts to balance their city budget. This is not a unique dynamic to Ferguson. This happens all over our country, um, we see tiny cities here in Georgia raising over a million dollars each year just through these court fines and fees. It’s become entirely normalized in American culture to do this, but it is something that we really need to question because it is being done on the backs of some of the most vulnerable people and um, it’s destroying lives.
Josie Duffy Rice: Just to your point about how creative people are in taking money from the people struggling the most and in these states where the state government has defunded all these municipalities, they’re doing the austerity and they’re just making money off the backs of poor people. It’s just horrifying.
Sarah Totonchi: So and so we have to be equally creative in fighting it. Right? And so, and I think it’s in this capacity that the Southern Center has really shined because we’re quite good at combining litigation and policy advocacy and strategic media strategies to really shine a light on these problems. Uh, the, the case that I just mentioned of Adel Edwards, people very high up in Georgia government were deeply troubled by this case. Uh, it made no sense and we also found that we had some unlikely allies in local sheriffs who see these private companies as a real pain. They have quasi law enforcement capability and they can request for warrants to be taken out on people who fall behind on their payments or who don’t report and then the sheriffs have to serve them and they don’t like being in service to private companies. And then beyond that, a sheriff doesn’t like his jail to be filled with people who are there for no other reason than they can’t afford to pay. And so working with some unlikely allies we’ve been able to really limit some of the scope of private probation companies in Georgia. Sometimes the litigation is the stick and that kind of threat of litigation or actual litigation is enough to make state and local actors do the right thing, but the battle is ongoing and we are very committed to seeing a day where private probation no longer operates in Georgia.
Josie Duffy Rice: Why do you think we’re like this? And I mean that as a general question. The fact that what America professes to value and what it actually, the system it has created, they don’t align at all. Um, and so take that question however you hear it. What do you think it is about us that makes us like this?
Sarah Totonchi: So I’m one of those people that would argue that the system is not broken, but that it is working exactly the way it was set up to work. This system was set up to maintain white supremacy and to control the lives of people of color and it is working very well in that capacity. Um, there is so much that people in power have to benefit from this continuing to work in this way and that is a crushing reality. And at the same time, I am very inspired and moved by the kind of opening that has happened in the last few years in this country, largely due to the advent of cellphone technology. And, um, how easy it has become to see real evidence of the way that police officers treat black and brown bodies. That it has opened up a conversation about race and the criminal legal system that we’ve never had before in this country, um, and the Movement for Black Lives and communities large and small that are advocating to change these things. Um, so we have our work cut out for us. Um, we have to push against a system that was set up to marginalize and to destroy certain lives. Um, and it is a part of America that we truly have to reckon with for better or for worse.
Clint Smith: And for anyone who is listening to this and saying like, ‘what can I do? What can I, you know, I’m not directly engaged in the criminal justice system,’ um, what would you say to them about how they can get involved or what they can do to affect the sort of positive trajectory of criminal justice reform?
Sarah Totonchi: There are a growing number of organizations at local and state levels across the country that are pushing back against these issues. And I would really encourage folks to just search your state’s name and the words criminal justice reform and see what comes up. There are numerous opportunities to plug in and we all value opportunities to work with folks from across the political spectrum. I also would encourage people to absorb as much as you can. Um, we, there’s been such an enormous influx of wonderful books and art and movies that have come out examining these issues in the last few years that I know I’m obsessed with them and we should never think we have it all figured out. We have to keep learning. We have to keep understanding because the system is not set up to be easy to understand, so don’t give up.
Josie Duffy Rice: That’s great. I love that. Thank you so much Sarah for joining us.
Clint Smith: Yeah we really appreciate it.
Sarah Totonchi: Thank you for having me.
Josie Duffy Rice: That was Sarah Totonchi, the Executive Director of the Southern Center for Human Rights. Thank you so much for joining us Sarah.
Clint Smith: And thank you all for listening to Justice in America. I am Clint Smith.
Josie Duffy Rice: I am Josie Duffy Rice.
Clint Smith: And you can find us on Twitter @Justice_Podcast, like us on Facebook at Justice in America, subscribe and rate us on iTunes. We’d love to hear from you and every review helps.
Josie Duffy Rice: Justice in America is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn and additional research support is provided by Johanna Wald. Thanks and we’ll talk to you next week.