Excerpted From: Brianna Borrelli, The Interplay of Mass Incarceration and Poverty, 30 Georgetown Journal on Poverty Law and Policy 287 (Winter, 2023) (184 Footnotes) (Full Document)


BriannaBorrelliCindy Rodriguez, a fifty-three-year-old woman who was dependent on disability payments after suffering serious neck and back injuries, never had a criminal record--not even a parking ticket. However, in 2014, the state charged Cindy with shoplifting and assigned her a public defender. Cindy's public defender directed her to plead guilty and accept probation, arguing that this was the best deal that Cindy would be offered, and that probation was nothing to worry about. Cindy soon found out she owed the court $578 for probation fines and fees. Cindy's probation also subjected her to a $35-45 monthly supervision fee and required her to pay the $20 cost of the random drug tests the probation company made her take even though she was never charged with a drug-related offense. Cindy told the judge about her desperate financial situation and dependence on disability payments. The judge told her to just do the best she could in paying her probation fees. The one time she did not pay her fee on time, Cindy was jailed. When she left the jail, the officer told Cindy, “I'll see you next time. You'll violate [parole] again.” Due to her inability to pay these fees, Cindy and her daughter had to go several nights without eating. She had to sell her van and became homeless due to her inability to pay her rent. She remains haunted by the debt, hunger, homelessness, and other trauma that has resulted from her time on probation. She has said, “No matter what I do, I can't get back up.”

Cindy's experience is not exceptional. As of February 2022, the poverty rate in the United States was about 14.4%. About 90% of people charged with felonies and misdemeanors must rely on a public defender for legal representation. About half of the people imprisoned in the United States make less than $10,000 per year and cannot afford the fees, fines, and sanctions that remain such a fundamental feature of American criminal justice. This inability to pay often leads to additional fees, jail time, and a vicious cycle of the inability to “get back up” for many individuals each year. Many of these individuals have only violated minor traffic laws act most Americans have committed. The United States' criminalization of poverty through the over-policing of poor communities and the use of bail, probation, fees, and fines results in many poor people facing jail time simply because they cannot afford to pay a specified amount. This criminalization of poverty drives Mass Incarceration and recidivism in the United States, while Mass Incarceration simultaneously exacerbates poverty. As a result, to meaningfully reform the criminal justice system, poverty must be decriminalized.

In five parts, this note explores the interplay between Mass Incarceration and poverty. Part I of this note will provide a background on Mass Incarceration and the driving forces behind Mass Incarceration in the United States, including (1) over-policing and overcriminalization, (2) mandatory minimums and harsh sentencing practices, and (3) community supervision and ongoing restrictions after release. Part II explores the interplay between Mass Incarceration and poverty, discussing how the impact of incarceration exacerbates poverty and hunger, but also how the criminalization of poverty drives Mass Incarceration . Part III explores trends in recent criminal justice reform. Part IV proposes reform efforts to decriminalize poverty, focusing on the reduction of overcriminalization, the restriction of the use fees, fines, bail, and pretrial detainment, and the reduction of collateral effects of incarceration. Lastly, Part V of this note rebuts the anticipated critiques of the proposed reforms offered in Part IV.

[. . .]

Mass Incarceration is a demanding problem that will take many years, continued research, and continued reform to fully address. However, to effectively work towards ending Mass Incarceration, criminal justice reform must require the decriminalization of poverty. Poverty has such a great impact on Mass Incarceration that it will be impossible to fully address Mass Incarceration without adopting a poverty reduction approach to criminal justice reform. Further, Mass Incarceration has such a great impact on poverty that it is necessary to address the causes of each phenomenon in tandem. While there is no perfect solution to Mass Incarceration, poverty, or the interplay between the two, many of the solutions proposed in this discussion are essential to moving towards a reduction in both incarceration and poverty. While there are likely many opponents who will argue against these proposed reforms, the research indicates that these proposed reforms do not pose a threat to public safety and, if enacted effectively, can significantly improve our criminal justice system as well as the lives and well-being of many individuals, families, and communities.

Graduate from Fordham University (2019) and Georgetown University Law Center (2022) and a current member of the New York State Bar. © 2023, Brianna Borrelli.