Pushing Back Against the Criminalization of Poverty

Poor people across the country are going to jail because they are poor. Following the death of Michael Brown at the hands of a Ferguson, Missouri police officer, the Department of Justice conducted an extensive investigation into the city’s law enforcement patterns and practices. The Department concluded that the city’s “law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs.” The emphasis on revenue generation was harming the entire community and driving a wedge between the police and the African-American community. But this story is not limited to Ferguson.

For wealthier Americans, a traffic ticket is a minor inconvenience, but for poor people it is often much more life changing. What begins as a traffic ticket can quickly cascade into a suspended driver’s license and time in jail. And the poor are not just going to jail because of traffic tickets. As Peter Edelman’s new book, Not a Crime to Be Poor: The Criminalization of Poverty in America (The New Press 2017), shows, far too many poor people cycle in and out of the criminal justice system largely as a function of their poverty. Men with no job prospects are jailed for failure to pay child support by judges who do not look into their ability to pay (incredibly, their child support arrears continue to grow while in jail under the theory that such time represents a period of “voluntary unemployment”). Criminal defendants who cannot afford to pay bail or to pay the dizzying array of fees associated with probation face the difficult choice of either suffering through a long wait in jail for a trial or entering a guilty plea in order to get out of jail for time served. Public school safety officers in poor districts, especially when dealing with African-American kids or kids with disabilities, routinely treat disruptions or absence from school not by dealing with such matters with the school system but by referring problems to the criminal justice system.

As Edelman highlights, the problems are not just on the front end; having a criminal record makes it nearly impossible for a person to escape a life of poverty. Having a criminal record not only makes finding employment hard but public
benefits such as TANF, SNAP (food stamps), and public housing are often unavailable to ex-offenders. Not a Crime to Be Poor’s laundry list of ways in which the country criminalizes poverty includes some examples, such as the targeting of the homeless through anti-camping rules, with a long history going back to the English Poor Laws. But Edelman does a great job connecting the criminalization of poverty with conservative tax reform. Cities without the resources to fund their police departments or their courts resorted to everything from fines for having unmowed grass and for burning yard waste without a permit to supplemental fees imposed even on indigent defendants for judicial expenses and for public defender services. Budget shortfalls also incentivized cities to pass crime-free and chronic nuisance ordinances that shift enforcement responsibilities from city police departments to private landlords, hurting victims of domestic violence who face eviction should they call 911.

Criminalization of poverty affects some groups more than others and is heavily tied to both race and place. Not a Crime to Be Poor is a sobering read even though Edelman tries to show that progress is possible. The book overflows with examples, drawn from across the country, of lawyers and organizations fighting hard to protect the poor from rules and practices that criminalize poverty. The success stories Edelman presents are truly inspiring, though the protagonists can seem almost superhuman. Lessening hold that criminal penalties have over the poor requires deep commitment on behalf of charities, lawyers, and politicians to all aspects of poverty. Providers seeking to help poor kids escape the school-to-prison pipeline find that they also have to reach the parents. Social activists focusing on homelessness find that to make a difference they must also launch job campaigns and manage judicial diversion programs.

The challenge when it comes to criminalization of poverty is that the overall politics of the country is largely hostile or indifferent to the poor and their struggles. From Ferguson to Charlottesville, racial inequality is an issue that is enjoying a moment of popular attention, thanks in part to protests ranging from the Black Lives Matter movement to the choice of some professional athletes to kneel during the national anthem. And as Edelman notes, we are also at a moment in which there is bipartisan support for easing some of the excesses of the Rockefeller drug laws. Hopefully Not a Crime to Be Poor will help put other issues from Edelman’s laundry list—such as money bail and punitive welfare regulations—on the table. But only in the conclusion does Not a Crime to Be Poor acknowledge that despite the glimmers of hope chronicled throughout, this might not be the time to directly attack poverty or racism.

For decades those who care about poverty have had to take a largely defensive stance, protecting New Deal and New Society programs from conservative assault but making little forward progress. The Affordable Care Act (“Obamacare”) hinted that the country had turned a corner, joining other developed countries with a commitment to secure basic protections for all members of the society. But Trump’s election and the damage that he continues to inflict on the country as a whole and on the most vulnerable in particular suggests that such optimism was premature. The response to the Trump administration over the remaining three years (hopefully not seven) will expose the nature of the nation’s soul and improving how we treat the poor ought to be part of the overall response. As Edelman’s friend and mentor, Robert F. Kennedy once said, “as long as there is plenty, poverty is evil.” But the fight against Trump demands everyone’s full participation. It seems naïve to think that there will be much progress during the short-term in tackling the criminalization of poverty, but hopefully Not a Crime to Be Poor will help lay the groundwork for a time when sanity returns to domestic policy.

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Ezra Rosser is a professor of law at American University’s Washington College of Law.

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