The dark roots of policing for profit — and what to do about it

Retired Birmingham Police Capt. Jerry Wiley used to raise a lot of eyebrows with his views on police work.

He still does, really.

Because when his officers wanted to show their dedication to the job by going out and ticketing as many small-time offenders as they could find, he told them to stop. He’d rather have them on the streets.

When officers bragged about knowing where to find “low-hanging fruit” to rack up a whole buffet of tickets and arrests, he told them to focus on the prime directive: being visible in the neighborhoods to prevent crime.

And when superiors asked why the number of misdemeanor arrests fell in the high-crime Birmingham precinct he commanded, he asked them to trust him.

It was way back in 2010, but it worked enough to grab some attention. His precinct, Birmingham’s West Precinct, made 4,000 fewer misdemeanor arrests than it had the year before, he said. But crime in the precinct fell. Burglary of homes dropped 15%, Auto theft and robbery dropped 7%. Robberies at businesses fell by almost two-thirds.

Some said it was a fluke, sure. But Wiley doesn’t believe that.

“I’m pretty sure we prevented robberies. I know that,” he said. “And we prevented burglaries and break-ins and that was really a big thing at that time.”

How? Well he told his subordinates and superiors – he tells anyone who will listen, still – that making arrests for petty offenses does not always translate into preventing crime.

Sometimes, it just creates more.

Criminalizing Poverty

The late Ruth Bader Ginsberg and Clarence Thomas did not see eye-to-eye, as you can imagine.

But they agreed – in fact, all of the U.S. Supreme Court justices agreed in 2019 – that cities and towns making bank by charging citizens high fines and fees and seizing property worth far more than their debt, were a threat to American freedom, not to mention in conflict with the Eighth Amendment to the Constitution. Ginsberg in that ruling talked about the history of using criminalization to suppress and oppress people – especially people of color and those in poverty – with roots stretching most deeply into the Reconstruction South.

“Following the Civil War, Southern States enacted Black Codes to subjugate newly freed slaves and maintain the prewar racial hierarchy,” she wrote in the Timbs v. Indiana decision. “Among these laws’ provisions were draconian fines for violating broad proscriptions on ‘vagrancy’ and other dubious offenses.”

It’s true. Alabama newspapers from way back tell those histories too well, and a bit too casually.

As in the case of an enslaved Mobile, Ala., man named Paul who was found “loitering around a citizen’s premises” in 1859. Paul – no last name was given or expected, as the intent was to dehumanize and discount — was punished with “39 stripes.”

Which meant lashes, of course.

Simple as that.

Or after the war, in 1870, when Nathan Harris, “one of the little Negro thieves with which the city is infested,” was found loitering at a grocery store in the midst of “a lot of pigs-feet bones and crumbs of crackers” under a table. “He was required to give a bond of $200 (estimated at more than $4,000 in today’s money) for his appearance before the city court,” a Mobile newspaper wrote, adding “which he can’t do.”

That was the point. And too often still is.

Criminalization was epidemic after the Civil War. But it didn’t end with Reconstruction or the Industrial Revolution.

Using the law to control and profit off poor people in general, and poor Black people in particular, continued through the 20th century. Especially in the South, where the convict-lease system incentivized incarceration to provide cheap labor and enrich private contractors. It survived through that whole century and stormed again into the 2000s, as private probation companies invaded states like Georgia and Alabama and many more. The fines those companies charged hit especially hard after the financial crisis in 2008. In Harpersville in Shelby County, then-Circuit Judge Hub Harrington was so shocked at the way poor people were squeezed by ballooning fines and fees that he famously declared it a “debtor’s prison’’ and shut it down.

It is still happening in places like Marion County, where a number of people — including U.S. Army veteran Charles Anderson — were jailed last year for their inability to pay old court fines. In Castleberry in southern Alabama, media scrutiny of a revenue-driven speed trap a few years ago led, at least temporarily, to the dissolution of the police department.

It happened in Ferguson, Mo., where in the years before Michael Brown was shot by police, the city churned fines and fees for revenue, issuing more than four times as many tickets annually as it had citizens. Ferguson used municipal court revenue to pay almost a quarter of the city budget, according to a U.S. Department of Justice report, and some residents were tossed in jail for missing a single payment.

In the days leading up to Brown’s death, Black drivers were 66% more likely to be stopped by police than whites, according to “Profit and Punishment,” a new book by Tony Messenger, a Pulitzer Prize winning columnist for the St. Louis Post-Dispatch.

After Brown’s killing and the report, the Missouri Legislature set a 20% cap on the amount of revenue cities could take from minor traffic violations. Generally, the Institute for Justice argues that cities that rely on fines and fees for more than 10% of their revenue bear scrutiny for what it calls “taxation by citation.”

Now, a similar situation has arisen in Brookside, in northern Jefferson County. In 2020 that small town brought in 49% of its revenue from fines and fees, records show.

On court days in Brookside, defendants line up outside while police direct traffic and order family members to remain in their cars. Many face hefty fines for failing to use a turn signal, or following too closely, or driving too long in the left lane of the interstate.

Police in Brookside stopped a woman named Alexis Morgan for failure to dim her lights. A judge in the town last month ordered her to pay $445 in fines and fees.

Police stopped another woman for an expired tag and charged her with failure to display insurance. Because she didn’t have the $410 in fines and fees, the court put her on a payment plan, meaning she will likely pay even more in interest.

The notion that court systems should be funded by “users,” or that courts should be self-supporting and not a basic part of government, often sounds good to voters. Until police pull them over in a place like Brookside for having a car tag light that is—according to an officer, too bright or too dim — or when their property is towed or confiscated to pay for a police force that has grown 10-fold in recent years while the population and crime rate have largely gone unchanged.

Towns that rely on citations for revenue profit by keeping citizens in the criminal justice system – using them as ATMs, as one Missouri lawmaker put it. They often use long payment plans to extract the most from those who can least afford to pay or to defend themselves.

They continue in places like Baldwin County, where some people accused of low-level crimes are required both to pay a bond and wear an ankle monitor before their trial, a process that costs $10 a day and sometimes extends for months. Some who spend thousands on ankle monitor fees are charged with crimes that are unlikely to put them in jail or prison even if convicted. Those very people – who would not have faced incarceration otherwise – can be sent to jail merely for technical or technological problems with the monitors. Or for failure to pay their $10 a day.

When you incentivize fines, you make criminals.

Little mistakes and life sentences

Leah Nelson with Alabama Appleseed says the state’s entire system of justice is predatory.

“The fact is that Alabama uses fines, fees, court costs and restitution … instead of taxes,” said Nelson, research director at the non-profit that works on issues of justice and equity in Alabama. “We’re like a super-duper low tax state, but money has to come from somewhere so legal financial obligations – which is like a term of art for fines, fees, court costs and restitution – is what we have instead of tax.”

But they are a tax, she said, and one that disproportionately affects poor people and people of color.

“That is a bet by the state that law enforcement will do a good job of enforcing laws, but a terrible job of preventing crime. It’s a bet on crime continuing, and a decision to extract as much money as possible from people who are convicted of crimes,” she said. “And when you compound that with who is disproportionately convicted of crimes, which in Alabama remains Black people, mostly, you have a real problem of the state betting that it will figure out a way to keep making money off of people. And if it can’t do that by taxes, it has to do it by taxing criminals. And so there have to be criminals.”

You hear those stories a lot, of down-on-their-luck or otherwise struggling people who find their way into the system and can’t get out. A disabled vet charged with public drunkenness in Georgia was put on a payment plan because he couldn’t afford the initial $270 fine. He ended up paying a private probation company twice that, but was put in jail because he couldn’t pay more.

Messenger, in his book, describes a poor Missouri woman who shoplifted an $8 tube of mascara and ended up in jail for a year, owing almost $16,000 in fines.

“The story of how court debt becomes a crushing burden for people living in poverty often starts with a small mistake, the sort of thing many of us do when we are young,” he wrote. “If we have parents who can afford an attorney, or we can afford bail, the mistake becomes just a blip on the radar screen of our lives. We write a check or swipe a credit card and move on. When the courts compound the mistake by emphasizing their role as debt collectors instead of keeping their focus on protecting public safety, little mistakes can transform themselves into what seems like a life sentence.”

It’s not that different from what the Supreme Court justices were saying. It is a direct assault on freedom, and the pursuit of happiness. Under the color of the courts.

Alabama Appleseed, along with UAB’s Treatment Alternatives for Safer Communities and other groups, surveyed almost 1,000 people caught in the system, and found the societal cost is high. In 2018 almost four in 10 said they had committed crimes to pay their court debts, and more said they turned to high-interest loans to cover the costs. Two-thirds said they were forced to seek food assistance they otherwise would not have needed in order to pay off their court debt.

No ‘Dastardly Criminal’

It’s what Wiley, the retired cop, told his officers all along.

He began his spiel by talking about a woman driving in a poor neighborhood. She’s his hypothetical, but every cop knew her, or someone like her. She’s a single mother, on her way to pick up her child at her mom’s house because she can’t afford daycare. But her tag is expired. Which is, of course, against the law.

“Is it because she’s some dastardly criminal who wants to buck the system?” Wiley asks. “No, she can’t afford it.”

The officer feels for her, Wiley says, but people have to have tags. So the cop writes a citation. And another for lapsed insurance. And the woman goes on her way.

But she still has to feed her kids and she still has to take them to her mom’s and pick them up again, and she still can’t afford a new tag so she doesn’t go to court on the day in question, and the court issues a warrant for her arrest.

“One of my enterprising police officers sees that she has no tag and pulls her over again,” Wiley says. “Now she’s got warrants outstanding for failure to appear. She’s taken to jail, probably doesn’t make bond. Maybe she does make bond but if she does make bond she’s probably getting it from her mother, who’s using her Social Security money or her retirement money and all this stuff. And so we get this continuing cycle of just running people through the system. Their only crime is that they’re poor. That’s the only reason why all of this was happening.”

And then this woman starts to feel like a criminal. In the eyes of the law she’s become one.

Because of a tag she could not afford, and the high cost of having no money.

Laws are laws, of course. And Wiley knows that.

But ticket quotas, real or implied, damage police relationships in neighborhoods, harm the communities themselves, and create what he calls “busy work” with jail and court appearances and paperwork. All that diminishes police presence on the streets, which he insists is the biggest deterrent to more serious crime.

He’s saying pretty much what studies and justice reform groups and the courts have said, too.

Taxation by citation doesn’t work, or make communities better. It simply provides incentive to criminalize, to extort, to take from the American people who can least afford it.

Or as Ginsburg put it in that Timbs decision, “the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties.”

How can we call that justice?

This story was published with the support of a grant from Columbia University’s Ira A. Lipman Center for Journalism and Civil and Human Rights.

Read more stories from our Banking on Crime series: