Brennan Center For Justice
brennancenterfor justiceat New York University School of LawCriminal Justice DebtA Toolkit for ActionBy Roopal Patel and Meghna Philip
Act ionM at er ial sAct i o n M at er ialsThe following provides guidance on waging a successful debt reform campaign. For the purposes of an example,some of these materials focus on one aspect of criminal justice debt, such as a jail fee or an unjust collections practice.Tailor them to suit your specific needs.1 . H o w t o Wage a Winni ng C am pai gn2 . Se l ect ing Areas fo r R e f o rm3 . Wr it ing t o Elect ed O f f i c i als4 . Advoc acy Meet ing H and o ut5 . Le tters t o t he Edito r6 . Op- Eds7 . Re l evant Readings and R e so urc eA TOOLKIT for ACTION 27
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How to Wage A Winning CampaignBuilding a successful campaign is a multi-stage process. Although every campaign has different contours, below aresome guidelines that will increase your chances for success.Regardless of your beliefs about criminal justice debt, chances are that you will be unable to overturn the entiresystem. Assess the landscape and pick an achievable goal or piece of legislation you would like to pass. Depending onthe political landscape, it may make sense to identify an ideal demand you would like to make of policy makers andfall-back demands if the ideal demand is unachievable. Advocacy and progressive policy change is a slow, incrementalprocess. Victories should be measured as the achievement of realistic goals in incremental steps. Prioritizing is centralto success; without priorities an organization may fail due to being overly-ambitious and optimistic.For example, it may be difficult to eliminate an existing fee. Instead of seeking to abolish fees, focusing on making surewaivers for poor people exist and that such waivers are enforced may be more achievable. Eliminating late fees, interestand surcharges on fees is also a more realistic goal. Relief from restitution may be difficult to win in an initial campaignbecause of the lobbying power of victims’ rights groups. Relief from user fees or fines is a more winnable goal.Communicate a Winning MessageIdentify your audience, and tailor what you say accordingly. Generally, this audience will be specific legislators and/or voters. Research legislators’ biographies and voting records to understand their backgrounds. If voters are theaudience, research voting patterns, demographics, and learn about the most contentious issues facing the community.Winning messages will highlight cost savings and public safety. In light of the fiscal crises so many states are facing,lawmakers are highly unlikely to pass legislation that ends up being more costly in the long run. People enmeshedin the criminal justice system are also not the most politically popular group. Any evidence you have that indicatesthat imposing and collecting the fees incurs costs rather than generates revenue will be an effective tool. Evidencethat highlights that reducing fees and fines can increase public safety, by reducing recidivism and allowing probationand parole officers to focus on successful re-entry will also be compelling.Build Support and Identify AlliesAllied Organizations: There are a number of organizations who are potentially invested in ending criminal justicedebt, such as legal service providers, civil liberties organizations, public defender offices, local bar associations,private civil rights or criminal defense attorneys, religious groups (specifically those who value redemption) ororganizations of prisoners’ families.Building coalitions with other organizations can raise awareness of all of the detrimental aspects of criminal justicedebt by potentially placing different voices and perspectives in the media. Furthermore, organizations workingin coalition can place increased pressure on electeds to take action on an issue, especially if some organizationsrepresent larger constituencies in an elected official’s district, such as the formerly incarcerated and their families.Grassroots: Depending on the structure of your organization and the extent of your resources, grassroots outreachmay be a centerpiece of your advocacy work, or it may take on a smaller role. However, grassroots support canonly make your position stronger in front of elected officials. Targeted grassroots outreach means finding outA TOOLKIT for ACTION 29wage a WInningCAMPAIGNIdentify an Achievable Goal
the interests and characteristics of certain groups of people (people of color, activists, prison workers, or courtpersonnel, targeting your message to those groups, and maintaining regular contact.Keeping grassroots leaders engaged means identifying specific tasks for them to do: writing letters, recruiting otherleaders, coming to and running meetings with elected officials.Feed the PressMedia is key to building support for your issue. No matter the importance you place on your effort, it is unlikely areporter will feel the same way. Do not wait for the phone to ring: reach out and build relationships with media. Donot underestimate the importance of delivering a message to smaller media outlets including bilingual, community,and faith-based press. Smaller media outlets reach targeted constituencies and are often read by local elected officials.Getting coverage in smaller outlets is often easier than getting coverage in larger ones.Make Contact: Build a list of local media outlets and contacts at each. Build relationships with reporters. Readlocal media and find out who covers a criminal justice beat, or find a new reporter trying to establish a beat forthemselves. Meet them for coffee or lunch and talk about your advocacy work. Ask about the reporter’s needs,and what they might require to build a story. Give them a document with background on your issue and anyrelevant press clippings. If you find people with compelling personal stories in the community where the media iscirculated, pitch it to the relevant reporter.Stories, articles and features: Reporters are busy; give them as much information as possible. Be sure to answer anyquestions they have to help them understand the issue. Find individuals with compelling personal stories abouthow their lives have been affected by criminal justice debt and pitch it to the relevant reporter. If your organizationcan pair a personal story with relevant facts and statistics it will turn the story into a larger social issue.Feature stories are the hardest to achieve; many newspapers no longer devote space or time to longer, more complexfeature stories. Yet, if you do succeed in convincing a reporter to write a feature story, take the time to consider whichpeople you want the reporter to interview. Generally speaking, they should be as sympathetic as possible. Amongthe factors to consider are: Did the person commit a minor crime (i.e. underage drinking, marijuana possession, certain driving violations)? Did the person complete the terms of the sentence but is still faced with a large amount of criminal justice debt? Was the debt from long ago and is there a record of it? Could the person be reincarcerated because of an inability to pay debt? Was there any determination made of the person’s ability to pay? Is this person having difficulty finding or keeping employment because of criminal justice debt? Does this person have a family to support and are debt obligations making it difficult for them to do so?30 BRENNAN CENTER FOR JUSTICE
Build Relationships with Elected OfficialsIdentify the elected officials that represent your district or locality and learn about their bios, their policies, and thedemographics of their districts. Learn about their prior or concurrent professions, their educational background,where they worship, their family involvement, and if they have volunteered somewhere. This will help identify thevalues of your elected officials, and will help you tailor your message effectively. Go back to their voting records; findout what issues they campaigned on, and what the centerpieces of their platforms were. Try to identify commonground. Find out if there is anyone in your area who has been a champion of criminal justice issues. Find out aboutracial makeup, income level, economic base, and challenges of the district.Identify an effective sponsor for your bill or legislative action. You will not often have a readily available championof criminal justice debt issues because it is often an unpopular issue. It may also be difficult to target all possibledecision-makers. Again, prioritizing is key to success. Put lobbying and advocacy resources behind targets that areeither supporters or undecided. Lobbying efforts should focus on turning supporters into champions of a bill andturn undecided legislators into supporters.There are a number of ways to communicate with elected officials: personal visits, phone calls, letters, petitions,emails, rallies and demonstrations, and public meetings. In general, the tactics that involve more personal contactare more powerful and may require fewer people. A personal meeting with an elected official where a few advocatesand/or constituents are present may have a strong impact on a decision maker. However, a petition, requiring only asignature on a pre-written form, will require many more constituents in order to be effective. A large public meetingwith many constituents present is one of the most effective ways to gain support.Tips for Effective Meetings with Legislators: Introductions:Identify any constituents at the meeting. Elected officials are most responsive to individuals whoare responsible for keeping them in office or have the power to get them out. Brief, clear statements: Highlight your key points about why this is an important issue. Have a one-pagedocument restating these points ready for your elected. Compelling statistics and facts can help legitimize yourpoint. Personal stories:Personal stories demonstrate concrete impacts in the elected official’s community. Stories aremore memorable than talking points. Ask for their support directly: If you don’t make a demand of your elected official, you will never know if s/hewill support your position. You won’t know if you have a supporter or if you need to move on to someone else. Be a resource for them: Offer to and be available to answer more questions and give more information. Thank the legislator for his or her time.A TOOLKIT for ACTION 31
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Selecting Areas for ReformThe table below is designed to help identify possible elements of criminal justice debt that may be ripe for reform.Included are suggested solutions that can form the basis of reform proposals. There are four major areas to consider: feeand fine imposition, collection and reassessment, nonpayment enforcement, and re-incarceration for nonpayment.Consulting with public defenders, prosecutors, criminal court staff and probation and parole department personnelcan be invaluable in identifying practices in need of modification.Questions for Policy-MakersConsider . . .Recommendations Is the state trying to increaserevenue by imposing new fees oncriminal defendants in the courtprocess? Many of those reentering societyare indigent, making collectiondifficult, and research showsthat criminal justice debt cansignificantly impede successfulreentry. The legislature should refrainfrom adding new fees, latepayment penalties, surcharges,and interest costs, and shouldreduce the state and judiciary’sreliance on fees and fines revenue. To fully understand the impactof your state’s fees and fines,your state should collect datato evaluate the effects of legalfinancial obligations (LFOs)on reentry. Are courts imposing orenforcing the non-payment ofLFOs without determining anindividual’s financial situation? States’ collection efforts and resources are wasted trying to collectfrom those without the ability topay. W ith fee waivers for indigency,state collection efforts could befocused on those able to pay. State law should exempt theindigent from paying court fees. Judges should be required toinquire into a defendant’s abilityto pay before imposing fees andfines and enforcing sanctions fora failure to pay. For those unable to pay, criminaljustice debt inhibits successfulreentry. A re judges limited in theirability to impose alternativesanctions to fees and fines (suchas community service)? M eaningful community servicebenefits the community andcan provide defendants with jobtraining and skills that will furthertheir reentry efforts. Your state should give judgesalternatives to ordering thepayment of fees and fines, suchas meaningful community serviceoptions. Community serviceshould be designed to helpdefendants reintegrate into thecommunity, not as a punitivemeasure. A TOOLKIT for ACTION 33selecting AREASFOR REFORMIMPOSITION OF FEES & FINES
Questions for Policy-MakersConsider . . .RecommendationsC OLLE C TIONS & REASSESMENT Do courts require payment at thetime LFOs are imposed? P aying the full amount of LFOsupfront is impractical for manyindividuals serving time in prison. Requiring this lump sum paymentcan threaten their economicsecurity, thus threatening reentryand encouraging recidivism States should allow defendants topay in installments over time inan amount tailored to their abilityto pay. Payment plan programs shouldinclude opportunities for incomeand debt burden reassessmentsand the flexibility to adjustthe payment schedule andamount in response to changedcircumstances. Payment plan programs shouldnot charge set-up fees or monthlyinterest, in order to avoidincreasing the financial burden onindigent defendants Does your state garnish wagesor bank accounts to collectdebt? Or obtain liens against adefendant’s property? Individuals reentering thecommunity are likely to have lowwage jobs but face a myriad ofexpenses, including hefty childsupport payments. Entering civil judgments againstdefendants or using privatecollection companies cannegatively impact defendants’credit ratings, making it moredifficult for them to securehousing and other necessities. D o court clerks only acceptpayment in person? By moneyorder? R equiring payment in person canbe disruptive for individuals whowork during courthouse businesshours. F ees on money orders and certifiedchecks can be very high andincrease the financial burden ondefendants.34 BRENNAN CENTER FOR JUSTICE Your state should set a maximumpercentage of a defendant’s incomethat can be assessed for paymentof court debt. The defendant’s other financialobligations, such as childsupport, should be taken intoaccount when setting thatmaximum. To the extent possible, your stateshould not forward non-paymentand lien information to creditrating agencies. Your state should offerdefendants various ways to payfees and fines such as onlinepayment or payment by phonewith a credit card.
Selecting Areas for ReformQuestions for Policy-MakersConsider . . .RecommendationsENFORC EMENT OF NON -PAYMENT Does your state requiredefendants to “pay or appear,”(i.e. make payments by a certaindate or appear in court to explaintheir failure to do so)? W hile payment plans are awelcome option for defendants ableto pay over the course of time, theuse of “pay or appear” proceedingsto enforce these payment plans iscounterproductive. A ttending hearings, which oftentake place during business hours,is difficult for defendants with newjobs. States should avoid disruptiveand expensive processes fornonpayment by establishinga defendant’s ability to paybefore a warrant issues andutilizing alternative methods ofenforcement before resorting toissuing a warrant. Th e consequence of missinga hearing can be serious: if adefendant misses a scheduledhearing a warrant can be issuedfor his or her arrest. This leadsto the frequent incarceration ofindividuals who have not beendetermined able to pay and is not acost-effective practice. Does your state authorize thesuspension of an individual’sdriver’s license or vehicleregistration for a failure to payfees and fines? R estricting defendants’ ability todrive is a serious sanction thathinders their ability to work -- anecessity for reintegration intosociety and defendants’ futureability to pay debts. Driver’s license and registrationsuspensions should be limited tocases where the court finds thatthe individual was able to pay thefees and fines and willfully failedto do so. A TOOLKIT for ACTION 35
Questions for Policy-MakersConsider . . .RecommendationsINCARC ERATION AN D C ONSTITUTIONAL C ONC ERNS Are individuals in your stateincarcerated for non-payment offees and fines? Th e Equal Protection Clause of theUnited States Constitution protectsindividuals who are unable to payfees and fines from incarcerationsolely for their failure to pay. The state cannot imprison anindigent defendant for failureto pay LFOs unless such failurewas willful and not the result ofindigency.1 The court cannot impose a fineand automatically convert it into ajail term because the defendant isindigent and unable to pay.2 To protect defendants’constitutional rights, counselshould be provided for anyproceeding resulting from a failureto pay fees and fines that may leadto incarceration. Does state law condition paroleor probation on the payment offees and fines? P arole or probation cannotconstitutionally be revoked for thefailure to pay fees and fines withouta determination that nonpaymentwas willful and not a result of thedefendant’s indigency. I ndividuals will often stopreporting to parole or probationbecause they do not have themoney to meet their court imposedfinancial obligations. 3 States should not revoke parole orprobation solely for a failure to payfees and fines. States should not use missedreporting dates as a pretext forincarcerating individuals whocannot pay. States should not revoke paroleor probation for a failure tocomply with requirements suchas treatment or drug or alcoholtesting when that failure wasbecause the defendant was unableto pay treatment program ortesting fees.1Williams v. Illinois, 399 U.S. 235; Tate v. Short, 401 U.S. 395 (1971); Bearden v. Georgia, 461 U.S. 660 (1983).2401 U.S. 395 at 398.3461 U.S. 660 at 668-75.36 BRENNAN CENTER FOR JUSTICE
Writing to Elected OfficialsAdvocacy letters are most effective if several organizations representing many people are signatories. Letters shouldideally be one page, elected officials and their staff may not read a longer letter. Try to avoid jargon. Be specific withyour particular problem or request. If you are writing about a specific bill, include the bill number and title and howyou would like the elected official to vote.Sample LetterMarch 1, 2012The Honorable [Elected Official Name]AddressRe: Assembly Bill 1234Dear Title [Elected Official Last Name]:We are a coalition of civil legal services attorneys, public defenders, prosecutors, and civil libertiesorganizations. We are writing to express our opposition to the jail fee that would be imposed by Bill1234. Our primary objections are:The fee jeopardizes community safety: Law enforcement officials, sheriffs, and probation andparole officers have a duty to monitor public safety. Probation and parole officers have the specificresponsibility to monitor those at high risk of recidivism. Forcing such officers to monitor individualswho have failed to pay a fee diverts the scarce resources of already overburdened officials to collectdebt.The fee encourages recidivism and creates paths to imprisonment: Time in jail may have alreadydisrupted an individual’s job. Leaving jail with a debt load and potentially no job may result in peoplecommitting crimes in order to obtain the funds to pay off debt. Furthermore, if individuals are unableto pay, they may be found in civil contempt for failure to pay a fee, resulting in further incarceration.The fee rai
A TOOLKIT FOR ACTION 27 aCtion materials The following provides guidance on waging a successful debt reform campaign. For the purposes of an example, some of these materials focus on one aspect of criminal justice debt, such as a jail fee or an unjust collections practice. Tailor them to suit your specific needs. 1. How to Wage a Winning Campaign
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