In a Nutshell: Data consistently indicates what many seem to know intrinsically: Americans live under a tiered justice system. Those without the ability to pay legal fines and fees risk extended incarceration on technicalities, while those with means walk free. The Vera Institute of Justice advocates rethinking money bail, court fines and fees, and other manifestations of structural misalignment in the criminal legal system. Hundreds of researchers and advocates at the Vera Institute work to align US justice with American aspirations.
The American ideal that justice ought to apply equally to everyone runs counter to the financial realities of the US criminal legal system. In the real world, money makes navigating the system far less likely to result in incarceration. Meanwhile, those who lack financial access disproportionately suffer a cascade of negative consequences, including extended imprisonment based solely on poverty and race, when they encounter law enforcement.
In many ways, the system seems almost perversely designed to perpetuate the inequalities it enables at the expense of fairness and social progress.
Moreover, people almost universally favor an equal justice system when asked, but voters who are free to create the system they want always seem to prefer the status quo.
Those are the unfortunate signposts informing the work of the Vera Institute of Justice, a nonprofit dedicated to equal justice for all. Researchers and advocates at the Vera Institute use data and inquiry to explore the contradictions of US justice and rectify the system’s seemingly inherent disparities.
Those include financial disparities because money is at the root of many of the system’s problems. For example, incurring fines and fees merely through encountering the system under a presumption of innocence can lead to extended incarceration for those without the ability to pay.
And for-profit money bail — permitted in only two countries, the US and the Philippines — leaves hundreds of thousands languishing on the public’s tab awaiting trial while their peers with financial access enjoy their freedom.
If those examples sound like outliers, they’re not, said Jasmine Heiss, director of the Vera Institute’s In Our Backyards initiative on rural incarceration, and Maria Rafael, acting initiative lead for Vera’s Justice Fines and Fees Project. If anything, Heiss and Rafael said, they’re symptoms of a much larger contradiction.
The Financial Underpinnings of Justice
Data overwhelmingly shows what’s also common knowledge: The US criminal system disproportionately harms communities of color, especially Black, Latinx, and indigenous communities, and people living in poverty, said Rafael, whose work centers on government collection of fines and fees.
But that’s best thought of as a consequence of an underlying financial disparity that consigns poor people to a different path. Individuals accrue fines, to be sure, but they also accrue fees merely from navigating the system. And sometimes, simply paying a fine incurs an additional fee.
“Many folks pay to access legal counsel even when they qualify as indigent,” Rafael said.
The reasoning is that the person pays the fee to access the free government service. “Often these are court-ordered — folks have no choice but to opt-in, and they’re expected to pay to complete the terms of their probation and successfully move on,” she said.
Examples extend to fees assessed at criminal conviction, including court processing, DNA collection, and urinalysis fees, and fees assessed after sentencing, including a fee to participate in monthly probation.
The point is that many people can’t pay these fines and fees. Simply touching the system to address the problem results in an additional burden.
They continue their ties to the system for longer. And they continue to be accountable and surveilled by the system while accumulating sometimes crushing debt. It’s no wonder that many spiral into extended incarceration.
“People often talk about a tiered system of justice, but it’s obvious when folks who have the means can buy their way out of the system at virtually no cost relative to their resources,” Rafael said. “On the other side of the coin, people who don’t have the means just experience a kind of snowballing effect.”
How Money Bail Perpetuates Inequality
States and counties trading unpaid fines and fees for jail time end up getting a bad deal all around, Rafael said.
“The government spends money to enforce collection and incarcerate without receiving a single dollar in return,” she said. “The people who pay, pay with their person and by subjecting their bodies to incarceration.”
It’s not just about the money, Heiss added. As Project Director of In Our Backyards, Heiss looks with her team at the shifting geography of mass incarceration toward hundreds of smaller cities, towns, and rural areas.
Heiss said as little as 24 hours in jail makes someone more likely to be arrested. It also makes them more likely to lose their job, housing, and sometimes custody of their children.
“You’re working at cross purposes,” she said. “You’re trying to get blood from a stone while almost guaranteeing you’ll see some of those people in the system again.”
For-profit money bail works the same way. Bail bond agents extract fees for surety coverage obtained through one of a relatively few large underwriting firms. Again, the system doesn’t have its priorities straight.
“It’s a massive industry with power concentrated in very few hands,” Heiss said. “There’s real staying power in the mythology that money bail is the mechanism to get people back into court because they have skin in the game.”
Data doesn’t show that. Instead, it shows that creating more supportive pretrial services can be a more successful intervention. In rural areas, such as those in the In Our Backyards initiative, the vagaries and severity of local law enforcement add practically infinite layers of additional complexity.
“People who don’t come to court are vulnerable and marginalized and often struggling with very real barriers, including things as basic as transportation or access to childcare,” Heiss said.
Exploring the Intersections of Money and Progress
Back to those layers of complexity, multiply these problems by thousands because every municipality has a distinct justice system. Local law enforcement and sentencing traditions routinely produce divergent criminal justice outcomes in similar cases.
Vera Institute acts as an incubator for partnerships of local stakeholders, national fiscal policy experts, researchers, and formerly incarcerated people who tackle problems by translating research into policy and advocacy.
The Justice Fines and Fees Initiative works on multiple levels to negotiate the complex web of federal, state, county, and municipal statutory authorities in three states where it operates — New Mexico, Washington, and Virginia. It focuses on eliminating criminal fees, reforming sentencing practices around fines, and mitigating the system’s collateral consequences to ensure debt doesn’t follow people around for years after sentencing.
In most places, money bail is the sole determining factor in whether defendants are free before trial. In Our Backyards shows that, particularly in smaller communities, more people are entering incarceration essentially for issues of social precarity, including lack of housing, substance or mental health struggles, and problems accessing treatment resources and support.
“You’re looking at people who have already been pushed to the margins in many ways, disproportionately black, brown, and poor people who feel the weight of a system that stigmatizes and marginalizes them,” Heiss said. “And then they’re coming into the criminal legal system and having their poverty and precarity further compounded, first by money bail and then by all of the fines, fees, and costs that pile up on top of that.”
In one of many examples of counterproductive fines and fees, court fines imposed at conviction help fund the public school system in New Mexico. In New Mexico, more sentencing equals better schools.
Structural disincentives work against each other in jurisdiction after jurisdiction. Voters often choose jobs and schools without considering whether a more nuanced approach to justice, less incarceration, and sometimes even less public revenue could have a more positive effect.
“Fines and fees not only harm the individuals who owe them and have to pay them,” Rafael said. “They’re also no way to fund a government.”