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Part IV questions whether the law can make a difference in dismantling the debtors’ prison scheme through a Critical Race Theory lens. —Michelle Alexander[1] Alana Cain was a low-income twenty-six-year-old African American woman living in New Orleans, Louisiana.[2] She was charged with a felony theft offense in 2012 when a ring disappeared from a law firm office she used to clean. Cain was indigent, but the judge ordered her to pay

Part IV questions whether the law can make a difference in dismantling the debtors’ prison scheme through a Critical Race Theory lens. —Michelle Alexander[1] Alana Cain was a low-income twenty-six-year-old African American woman living in New Orleans, Louisiana.[2] She was charged with a felony theft offense in 2012 when a ring disappeared from a law firm office she used to clean. Cain was indigent, but the judge ordered her to pay $1,800 in restitution and approximately $950 in court fines and fees[3]—$600 of which were at his discretion to go to the Judicial Expense Fund.[4] The Collections Department decided that Cain would need to pay $100 each month despite her indigent status.[5] Cain did her best to keep up with the monthly payments, borrowing money from her equally poor family and friends while caring for her sick mother.[6] One month, Cain failed to make her payment on time and asked if she could make a smaller payment to the Collections Department, but the Department refused any payment smaller than $50 and issued an arrest warrant for her.[7] On March 11, 2015, a New Orleans police officer pulled over a car due to a broken taillight.[8] Cain was the passenger. On July 9, 2015, the ACLU of Michigan filed a complaint asking Macomb County Circuit Court to order 38th District Judge Carl Gerds III—the only judge in Eastpointe, Michigan—to refrain from implementing his “pay and stay” practice for minor infractions.[31] On September 8, 2015, SPLC filed a class action complaint against the City of Alexander, Alabama, for arresting and jailing low-income people unable to pay their criminal justice debt.[32] Cain’s lawsuit came nine days later,[33] followed by on October 21, 2015 in Mississippi.[36] Most recently, the Arkansas Civil Liberties Union and the Lawyers’ Committee for Civil Rights Under Law filed a class action lawsuit describing the debtors’ prison practices in the City of Sherwood, [37] and the Arch City Defenders filed in 2016.[38] Few of the lawsuits filed explicitly mention race,[39] but most of them are filed in jurisdictions with large communities of color.[40] This Article argues that the debtors’ prison scheme employed on a national level across the United States functions like the War on Drugs as another “branch” of the race-based mass incarceration Michelle Alexander describes.[41] Part II lays out the debtors’ prison scheme, from the causes to the consequences on individuals, and explains why the lack of definition of an individual’s “ability to pay” reinforces the racial disparity of the scheme. Part III demonstrates that the debtors’ prison scheme functions as a form of racialized social control similar to the War on Drugs, using Michelle Alexander’s analysis in [1] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 188 (2012). Furthermore, although the settlement agreement deems people below 125% of the Federal Poverty Level as indigent, individuals who make even a small amount over that line are still vulnerable to the discretion of the judges. Enforcing Reforms Through Legislation Some states have reformed their laws—including the ability-to-pay inquiries—subsequent to the onslaught of complaints against debtor prison practices,[259] but these reforms have not all been successful. Fourth, litigation cannot solve every problem, and short-term successes overshadow the work that is left to be done, causing the general public, judges, etc. For example, while Judicial Corrections Systems was barred in Montgomery, the settlement agreement did not address the revenue that the debtors’ prison scheme generates for the become entangled with the criminal justice system, it has not helped people avoid either.

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Part IV questions whether the law can make a difference in dismantling the debtors’ prison scheme through a Critical Race Theory lens.

—Michelle Alexander[1] Alana Cain was a low-income twenty-six-year-old African American woman living in New Orleans, Louisiana.[2] She was charged with a felony theft offense in 2012 when a ring disappeared from a law firm office she used to clean. Cain was indigent, but the judge ordered her to pay $1,800 in restitution and approximately $950 in court fines and fees[3]—$600 of which were at his discretion to go to the Judicial Expense Fund.[4] The Collections Department decided that Cain would need to pay $100 each month despite her indigent status.[5] Cain did her best to keep up with the monthly payments, borrowing money from her equally poor family and friends while caring for her sick mother.[6] One month, Cain failed to make her payment on time and asked if she could make a smaller payment to the Collections Department, but the Department refused any payment smaller than $50 and issued an arrest warrant for her.[7] On March 11, 2015, a New Orleans police officer pulled over a car due to a broken taillight.[8] Cain was the passenger.

On July 9, 2015, the ACLU of Michigan filed a complaint asking Macomb County Circuit Court to order 38th District Judge Carl Gerds III—the only judge in Eastpointe, Michigan—to refrain from implementing his “pay and stay” practice for minor infractions.[31] On September 8, 2015, SPLC filed a class action complaint against the City of Alexander, Alabama, for arresting and jailing low-income people unable to pay their criminal justice debt.[32] Cain’s lawsuit came nine days later,[33] followed by on October 21, 2015 in Mississippi.[36] Most recently, the Arkansas Civil Liberties Union and the Lawyers’ Committee for Civil Rights Under Law filed a class action lawsuit describing the debtors’ prison practices in the City of Sherwood, [37] and the Arch City Defenders filed in 2016.[38] Few of the lawsuits filed explicitly mention race,[39] but most of them are filed in jurisdictions with large communities of color.[40] This Article argues that the debtors’ prison scheme employed on a national level across the United States functions like the War on Drugs as another “branch” of the race-based mass incarceration Michelle Alexander describes.[41] Part II lays out the debtors’ prison scheme, from the causes to the consequences on individuals, and explains why the lack of definition of an individual’s “ability to pay” reinforces the racial disparity of the scheme.

Part III demonstrates that the debtors’ prison scheme functions as a form of racialized social control similar to the War on Drugs, using Michelle Alexander’s analysis in [1] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 188 (2012).

Furthermore, although the settlement agreement deems people below 125% of the Federal Poverty Level as indigent, individuals who make even a small amount over that line are still vulnerable to the discretion of the judges. Enforcing Reforms Through Legislation Some states have reformed their laws—including the ability-to-pay inquiries—subsequent to the onslaught of complaints against debtor prison practices,[259] but these reforms have not all been successful.

,800 in restitution and approximately 0 in court fines and fees[3]—0 of which were at his discretion to go to the Judicial Expense Fund.[4] The Collections Department decided that Cain would need to pay 0 each month despite her indigent status.[5] Cain did her best to keep up with the monthly payments, borrowing money from her equally poor family and friends while caring for her sick mother.[6] One month, Cain failed to make her payment on time and asked if she could make a smaller payment to the Collections Department, but the Department refused any payment smaller than and issued an arrest warrant for her.[7] On March 11, 2015, a New Orleans police officer pulled over a car due to a broken taillight.[8] Cain was the passenger. On July 9, 2015, the ACLU of Michigan filed a complaint asking Macomb County Circuit Court to order 38th District Judge Carl Gerds III—the only judge in Eastpointe, Michigan—to refrain from implementing his “pay and stay” practice for minor infractions.[31] On September 8, 2015, SPLC filed a class action complaint against the City of Alexander, Alabama, for arresting and jailing low-income people unable to pay their criminal justice debt.[32] Cain’s lawsuit came nine days later,[33] followed by on October 21, 2015 in Mississippi.[36] Most recently, the Arkansas Civil Liberties Union and the Lawyers’ Committee for Civil Rights Under Law filed a class action lawsuit describing the debtors’ prison practices in the City of Sherwood, [37] and the Arch City Defenders filed in 2016.[38] Few of the lawsuits filed explicitly mention race,[39] but most of them are filed in jurisdictions with large communities of color.[40] This Article argues that the debtors’ prison scheme employed on a national level across the United States functions like the War on Drugs as another “branch” of the race-based mass incarceration Michelle Alexander describes.[41] Part II lays out the debtors’ prison scheme, from the causes to the consequences on individuals, and explains why the lack of definition of an individual’s “ability to pay” reinforces the racial disparity of the scheme. Part III demonstrates that the debtors’ prison scheme functions as a form of racialized social control similar to the War on Drugs, using Michelle Alexander’s analysis in [1] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 188 (2012). Furthermore, although the settlement agreement deems people below 125% of the Federal Poverty Level as indigent, individuals who make even a small amount over that line are still vulnerable to the discretion of the judges. Enforcing Reforms Through Legislation Some states have reformed their laws—including the ability-to-pay inquiries—subsequent to the onslaught of complaints against debtor prison practices,[259] but these reforms have not all been successful. Fourth, litigation cannot solve every problem, and short-term successes overshadow the work that is left to be done, causing the general public, judges, etc. For example, while Judicial Corrections Systems was barred in Montgomery, the settlement agreement did not address the revenue that the debtors’ prison scheme generates for the become entangled with the criminal justice system, it has not helped people avoid either.

Second, most low-income individuals caught in the debtors’ prison scheme are people of color, and the reforms do not address this problematic racial disparity.Both resulted in settlement agreements promising—among many other things—that anyone earning below the 125% of the Federal Poverty Level would be considered indigent and, thus, would not be jailed for being unable to pay off their debt.[24] The true catalyst was the Department of Justice’s report of its investigation of the Ferguson Police Department in Ferguson, Missouri, released on March 4, 2015 (“Ferguson Report”).[25] The Ferguson Report revealed that police and municipal court practices focused on generating revenue for the city, rather than public safety, and exacerbated “existing racial bias, including racial stereotypes.”[26] Shortly before the release of the Ferguson Report, Equal Justice Under Law and Arch City Defenders filed two class action lawsuits, ,[28] alleging that both cities had maintained a flagrant debtors’ prison scheme for years. The media’s coverage of events in Ferguson, Missouri[29] brought attention to these debtors’ prison lawsuits,[30] unleashing an onslaught of other complaints exposing debtor prison schemes. 12, 2014), https:// First Amended Class Action Complaint, Mitchell v. While reform laws can be added on the books, their enforcement is distorted, particularly once advocates stop monitoring.

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