Posted October 1, 2014 3:05 PM
Updated May 4, 2015 3:13 PM

Discrimination in justice system can lead to economic, psychological costs

Criminal Procedure

Timothy P. O’Neill
By Timothy P. O’Neill
Timothy P. O’Neill is the Edward T. and Noble W. Lee Chair in Constitutional Law for 2014-15 at The John Marshall Law School in Chicago. Readers are invited to visit his Web log and archives at

Where I live, getting a ticket for rolling a stop sign will cost you $150. For the upper-middle class, this is an irritation. But for someone from the working class, this is a real hardship.

The federal minimum wage is $7.25 an hour. This means that it would take more than 20 hours of wages — roughly 2½ days of work — to pay the ticket. If we started to fine everyone who rolls a stop sign the equivalent of what they earn in 2½ days, well, it would never happen.

I thought about this after reading Alice Goffman’s extraordinary new book “On the Run: Fugitive Life in an American City” (University of Chicago Press, 2014). Goffman is currently an assistant professor of sociology at the University of Wisconsin. She spent six years living in a poor, largely African-American neighborhood in Philadelphia. She documents the hidden toll the criminal justice system takes on both individuals and families.

You probably know the statistics. Roughly 3 percent of adults in America are either in prison, in jail, on parole or on probation; that’s roughly 7 million people. Blacks make up 13 percent of the U.S. population, but 37 percent of the prison population. And 60 percent of black men who do not finish high school will go to prison by their mid-30s.

Goffman contends that the intensive policing and surveillance that are the results of programs such as “broken windows” have “transformed poor black neighborhoods into communities of suspects and fugitives.”

Here’s why. The broken-windows strategy encourages police to stringently enforce so-called quality of life offenses, such as open bottle violations, fare jumping and so forth.

The U.S. Supreme Court has held that there is no offense so minor that it cannot constitutionally support an arrest. Atwater v. Lago Vista, 532 U.S. 318 (2001). Moreover, even if just a citation is issued, that person is now involved with the court system. That will probably involve both fines and court costs. And the people racking up these fines and costs are those who have the least ability to pay.

In 2010, there were 80,000 open warrants in Philadelphia. A small portion consisted of “body warrants” for new crimes. Most, however, were either bench warrants for missing a court date or not paying court fees or they were technical warrants for violations of probation or parole.

Goffman interviewed 308 young men who lived in the neighborhood in 2007. She found that 144 were subject to arrest warrants for either unpaid fines and court costs or for missing a court date. Another 119 were subject to warrants for technical violations of their probation or parole (for example, public drinking or curfew violations).

Regardless, Philadelphia police know that a key indicator in performance review is the number of arrests they make. Thus begins a game of cat and mouse between police and those who are “dirty” — those who have open warrants. Dirty people must go underground to ensure that they escape the notice of the police.

This makes earning a living or looking for work particularly dangerous. Finding work to pay a court fine, simply exposes you to being arrested on an open warrant. Any place where an ID is necessary, even seeking treatment at a hospital.

And it is not just the men who are involved. Goffman found that police will lean on mothers, girlfriends and relatives to find the men who have open warrants. Goffman occasionally found police threatening arrest, eviction from public housing, or loss of child custody to obtain the information they needed.

The problem is not confined to Philadelphia. An article in The New York Times showed that Michael Brown’s home of Ferguson, Mo., in 2013 issued the highest number of arrest warrants of any city in Missouri relative to its size. Frances Robles, “Ferguson Sets Broad Change for City Courts,” (Sept. 9, 2014).

For example Columbia, Mo., issued fewer than 50 arrest warrants per 1,000 residents; Ferguson, however, led the state with about 1,500 arrest warrants for each 1,000 residents. Ferguson had been criticized for “unfairly targeting low-income blacks, who had become trapped in a cycle of unpaid tickets and arrest warrants.” Indeed, records showed that 20 percent of the city’s $12 million budget is paid through fines.

The endless cycle of hiding to avoid arrest for unpaid fines and court costs that inevitably leads to yet more fines and costs may have another disturbing consequence. In their new book “Suspicious Minds: How Culture Shapes Madness” (Free Press, 2014), Joel Gold and Ian Gold examine the causes of psychosis. They cite a study of 12,000 people conducted over 16 years finding that African-Americans had twice the incidence of schizophrenia than whites. There is evidence that racial discrimination may indeed increase the risk of psychosis.

The Golds cite a study by Jean-Paul Selten and Elizabeth Cantor-Graae that suggests that what might be common to the social determinants of psychosis is a concept called “social defeat.” Social defeat is described as “an actual social encounter in which one person physically or symbolically loses to another.”

Social defeat occurs during interactions when one person demeans, humiliates or subordinates another person. This theory hypothesizes that the risk of developing psychosis will be raised in those people who feel repeatedly demeaned or subordinated.

Connect the dots. It is this whole cycle of unpaid citations, arrest warrants and everyday discrimination that might be the reason the Chicago Tribune refers to the Cook County Jail as “effectively Illinois’ largest mental health facility.” Steve Schmadeke, “Cook County Jail’s Inmate Population Rising,” (Sept. 13, 2013).

The Times story reported that Ferguson officials have announced that changes will be made. Describing the bench warrants and traffic fines as “a regressive tax on the poor,” a community organizer in Missouri said, “If people no longer receive these charges, that’s huge: It keeps people from getting stuck in modern debtors’ prisons.”

Reform cannot come quickly enough.

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