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Debtors’ prisons are making a comeback as states jail defendants who can’t afford to pay court-imposed fines and fees, including “pay-to-stay” jail fees and public defender charges, according to reports by two public interest organizations.

Judges view the collection of debt as a critical income stream, but jailing indigent defendants ends up costing states and counties much more than they can ever hope to recover, according to a press release by the American Civil Liberties Union. Often people are jailed or threatened with jail even though they have no lawyer to represent them, according to the ACLU’s report, “In for a Penny: The Rise of America’s New Debtors’ Prisons.”

The ACLU examined the problem in the states of Louisiana, Michigan, Ohio, Georgia and Washington. In one court in New Orleans, for example, judges were pressured to collect fines and fees, and those who collected less than their fair share got fewer operating funds, the report says. Among other things, the report recommends appointed counsel for defendants facing hearings over the fees, and an alternative such as community service for those who can’t pay.

The Brennan Center for Justice also studied the problem in 15 states with the highest prison populations. Thirteen of those states charge poor people “public defender fees,” a practice that encourages indigent defendants to waive their right to counsel, according to the Brennan Center report, “Criminal Justice Debt: A Barrier to Re-entry.” All fifteen of the examined states charge a broad array of fees, which are often imposed without taking into account ability to pay. In some states, local government fees, on top of state-wide fees, add to fee burdens.

The Brennan Center recommendations include elimination of both public defender fees and “poverty penalties” that impose additional costs on individuals who are unable to pay criminal justice debt all at once.

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