The Criminalization of Poverty

Minor Crimes, Major Consequences

Arrest as a Revenue-Driving Strategy — An Examination of Failure-To-Pay Arrest Warrants

Arzu Singh

May 28, 2024

Ashley W., a single mother of two young children working full-time and living below the poverty line in Austin, Texas, was washing her car at the park when she was arrested for unpaid traffic tickets. She did not even know she had an arrest warrant for her nonpayment. Despite being frantic about leaving her children, she was taken to the local jail where she was not given an opportunity to make any calls. She was unable to tell her boss she would be gone longer than expected, tell her landlord she would be late with rent, or arrange childcare for her children. Daniel M., a 23-year-old plumber and father of two, was arrested for unpaid traffic tickets, booked into jail, and not told how long he would be detained. He was unable to take his daughter to her first day of school, and his family’s home was robbed while he was in jail. Michael C. received five traffic tickets from Waco, Texas over a decade ago and has been to jail more than 20 times for those tickets. He still owes thousands of dollars due to all the fines and fees that have compounded over time. Lionel E. was arrested on a warrant for owing a total of $1,209 from three unpaid traffic tickets. While in jail, he experienced a seizure and by the time EMT got to the cell, he had passed away. Lionel was 23 years old.

Like millions of other Americans, Ashley, Daniel, Michael, and Lionel’s lives have been deeply impacted by the insidious American misdemeanor system that operates quietly but relentlessly in the shadows of the criminal legal system. Because society considers misdemeanor offenses––like traffic violations, jaywalking, petty theft––“minor,” these cases receive negligible public attention, legal resources, or scrutiny as to whether defendants are afforded due process of law. But these fine-only offenses nonetheless have profound consequences on individuals’ lives, especially when people are unable to pay the fines imposed by the courts. 

Over the past few decades, state and local governments have increased the scale and magnitude of fines and fees imposed for misdemeanor offenses, such as traffic violations and “quality of life” crimes (which can include things as minor as biking on the sidewalk, being in a park after closing, “loitering,” and more). Because low-income communities of color are disproportionately policed, both on the roads as well as in their communities, this system of fees and fines creates “a regressive system of taxation… now entrenched in virtually every state, and in municipalities large and small across the country.”

These monetary sanctions on people with limited financial means and communities of color effectively creates a two-tiered system of justice where those who cannot pay are trapped in a cycle of poverty and punishment. Misdemeanor fees and fines are an example of what some scholars have termed the “criminalization of poverty”: the idea that the American criminal legal system punishes people simply for being poor. This racially discriminatory and profit-driven approach to law enforcement is enabled by the collaborative efforts of local government, police, and courts.  

When individuals cannot pay their fees and fines, also called “legal financial obligations” (LFOs), courts employ various punitive tools of the state to coerce payment or punish people for nonpayment––namely, arrest warrants and incarceration. Fine-only offenses can lead to arrest warrants in two situations. The first, known as a “failure-to-appear” warrant, can be issued when a person fails to show up for a court date. The second, known as a “failure-to-pay” warrant or capias warrant, can be issued when a person fails to satisfy fines or fees. Ironically, these warrants often come with their own additional fees.

In Texas, when a court issues an arrest warrant, it adds a $50 warrant fee to the individual’s original ticket. In Oklahoma, it adds a $250 dollar warrant fee––equal to the original fine owed by the average Oklahoma debtor. When someone is arrested on a warrant for a fine-only offense, she is typically booked into the local county or city jail until she is brought in front of a judge who will assess her “ability to pay” the fines. Typically, imprisonment is treated as a substitute for repayment where court debtors earn a certain amount of credit—often $50 to $100 a day for each day they sit in jail.

A graphic depicting the cycle of debt and incarceration that begins with a misdemeanor fine, such as a traffic offense.

Source: Texas Appleseed/Fair Defense

The scale of capias warrants being issued is tremendous. Between 2012 and the end of 2018, for example, Texas municipal courts issued 4.9 million capias warrants. In 2015 alone, Texas municipal courts issued approximately 688,000 capias warrants in fine-only misdemeanor cases. This means that millions of Texans are living with an active warrant for their arrest and are subject to being booked in jail at any time for fine-only offenses. 

The resulting imprisonment from these warrants is substantial, too. A 2023 study conducted by scholars at the University of Texas Southwestern found that between 2005 and 2018 approximately 38,000 residents of Texas and around 8,000 residents of Wisconsin were jailed each year on failure-to-pay warrants. Although half of those arrested were jailed for a day or less, the “average” individual spent 2.1 days in jail in Texas and 6.2 days in jail in Wisconsin. In a 2015 survey of 95 New York public defenders and defense attorneys, 79% of attorneys who had represented defendants arraigned on warrants for unpaid fines said that those defendants spent time in jail.

The Façade of “Public Safety”: Predatory Cities 

Most of these paid fines and fees come, perhaps surprisingly, from traffic offenses. In Texas and Oklahoma, for example, 64% of associated charges for failure-to-pay warrants issued were traffic-related. A study that looked even more granularly into arrest warrants in Nevada found that most traffic violations that led to warrants were not “moving” violations, but were administrative violations, such as the inability to pay for insurance, driver’s licenses, or vehicle registration. This data tells the story that courts do not: enhancing public safety is not the motivation behind these fines, even those related to traffic offenses.

A graph depicting the three major categories of violations that led to an arrest warrant in Nevada from 2012-2020.

Source: Costs and Consequences of Traffic Fines and Fees: A Case Study of Open Warrants in Las Vegas, Nevada

What is driving these fines and their corresponding capias warrants, then? In large part, generating funds for local police systems and courts. In the first decade of the 21st century, there were nationwide cuts to court funding due to the macroeconomic conditions of the 2008 recession. Legal publications from these years noted that “[a]cross the country, courts are being asked to do more with less,” “[t]he current fiscal crisis is provoking budget reductions so deep they threaten the basic mission of state courts,” and “[t]he courts of our country are in crisis.” Courts, suddenly hollowed of their funds, were asked to function more like profit-producing corporations than institutions serving the public.

Around that time, the National Center for State Courts generated a comprehensive list of “revenue generation strategies, including enhanced collection of uncollected fines, penalties and surcharges.”  Courts rapidly increased their reliance on monetary sanctions as a source of financial support, with little attention to the disparate impact these policies would have on low-income communities.

Through these extractive monetary sanctions, many cities have become “predatory cities”: urban areas where public officials systematically take property from residents and transfer it to public coffers, in violation of residents’ rights.

Through these extractive monetary sanctions, many cities have become “predatory cities”: urban areas where public officials systematically take property from residents and transfer it to public coffers, in violation of residents’ rights. These cities are charging low-level offenders to extract fines and fees, in order to turn the money around to fund the very courts and jails that processed the offenders. Even though Texas law technically prohibits requiring a judge to collect a certain amount of money through fees and fines, many judges still feel pressure to raise revenue. One anonymous Texas judge said a city council member repeatedly threatened to replace her if she did not meet projected revenue goals; another Texas judge resigned because of the constant pressure from city officials to collect on speeding tickets and called the city’s municipal court a “cash cow.” 

Are Capias Warrants Even Constitutional?: Doctrinal Background

A series of Supreme Court decisions in the 1970s created the doctrinal backdrop that, while creating some “limitations,” has protected the practice of arrests based on unpaid monetary sanctions. 

In 1970, in Williams v. Illinois, Willie Williams was convicted of petty theft and received the maximum sentence of one year imprisonment and a $500 fine. But because Williams could not afford to pay the monetary sanctions, the court ordered him to remain in jail to “work off” the debt at the rate of $5 per day—more than 100 days beyond the maximum period of confinement for the crime itself. The Supreme Court held that this violated the Equal Protection Clause of the Fourteenth Amendment, as the imprisonment resulted in “impermissible discrimination that rest[ed] on ability to pay.”

A few years later, in Tate v Short, the Court reiterated that courts could not convert traffic violation fines into jail time for indigent defendants without the resources to pay. A decade later, in Bearden v. Georgia, the Court held if an individual cannot pay despite making genuine efforts, she cannot be imprisoned if there are alternative measures adequate to meet the state’s interests. The Court held that “a sentencing court must inquire into the reasons for the failure to pay” and first exhaust all other methods to punish and deter criminal behavior short of incarcerating someone.  

Together, Williams, Tate, and Bearden create a clear rule: the Fourteenth Amendment prohibits imprisonment for failure to pay monetary sanctions without a prior hearing inquiring into the reasons for the failure to pay and considering alternatives to imprisonment where the failure to pay is not willful.  What these decisions don’t prohibit, however, is issuing arrest warrants for individuals who have not paid their fines and jailing those individuals until they receive an “ability to pay” hearing. Nor do these cases address what equitable methodologies should be employed in an “ability to pay” hearing.

Injustice in Practice: “Ability-to-Pay” Hearing after a Capias Warrant Arrest

Court records reveal the egregious inadequacy of hearings that take place after arrest on a capias warrant. Judges often don’t inquire about income and financial dependents, the two questions most fundamental to ability to pay, and court documents for people committed to jail commonly indicate that they are unemployed or homeless. Sometimes courts use preprinted forms with no space to record the basis for their findings and without any indication of whether or not the person was able to pay.

Even when a judge formally evaluates a debtor’s ability to pay, the standards required to be deemed unable to pay are often impossible to meet. In New York, one defendant admitted that he had bought a pack of cigarettes in the time since the sentence was imposed and was found to be in willful violation of the fine requirement. Some judges require debtors to get the money from family members or “to use Temporary Aid to Needy Family checks, Social Security disability income, veterans’ benefits or other welfare checks to pay their court fees.” Judge Robert Swisher, a judge in Washington, explained that he made decisions based on his own personal perception of the debtor: “They come in wearing expensive jackets…or maybe a thousand dollars’ worth of tattoos on their arms. And they say, ‘I’m just living on handouts.’” If the debtor explains that the jacket or tattoos were a gift, he says they should have asked the giver for the cash to pay their court fees instead. The bottom line: most of these hearings fail to assess individuals’ “ability to pay” in any meaningful way. 

Injustice in Practice: Racial Disparities in Capias Warrants 

While “ability-to-pay” hearings are clearly fraught with injustice and discrimination, the process is deeply discriminatory in its earlier stages, too––including at the stage of capias warrant issuance. Data collection on failure-to-pay warrants is decentralized and alarmingly sparse. However, in all municipalities where data is available, the data tells a consistent, clear story: Black people are far more likely to have an arrest warrant issued for their failure to pay LFOs.

According to an investigation of the city of Ferguson conducted by the Department of Justice, Black individuals were at least 50% more likely to have their cases lead to an arrest warrant and accounted for 92% of cases in which an arrest warrant was issued by the Ferguson Municipal Court in 2013. The scale of warrants being issued was gargantuan: the city averaged three warrants per household; “fines and fees became almost-universal experiences for poor, black residents.”

According to Las Vegas Municipal Court open warrant data from 2012–2020, the individuals most commonly impacted by warrants were between the ages of 18 and 34 (47.1%), male (65.7%), from the poorest ZIP codes (58% from median income and below), and much more likely to be Black than any other ethnicity (44.7%). Similarly, in the city and county of San Francisco, Black residents make up 5.8% of the population but are 48.7% of the arrestees for failure-to-appear and failure-to-pay traffic court warrants.

The Private Sector’s Influence on Capias Warrants

The process of LFO collection varies across jurisdictions: in some jurisdictions, clerk’s offices handle payments; in others, collections are handled by probation offices or private collection agencies. Private collection agencies, however, pose unique risks to debtors, as these agencies charge additional fees (e.g., an additional percentage fee of the underlying LFOs, fees to establish accounts, and fees to administer payments) on top of the existing LFOs. The city of Seattle, for example, has contracts with private collections agencies, and a research study revealed that most agencies in Seattle charge debtors the highest fee they are legally allowed to. The involvement of private entities like debt collection agencies means that an individual’s property is now being extracted not only to financially benefit government but also to benefit for-profit firms operating throughout the misdemeanor justice system.

In all municipalities where data is available, the data tells a consistent, clear story: Black people are far more likely to have an arrest warrant issued for their failure to pay LFOs.

The involvement of private collection agencies has downstream effects on the issuing of capias warrants, as debt collectors “retain the threat of incarceration of the debtor for willful failure.” Debt collectors can leverage arrest warrants in LFO collection, and they are aware that they are most likely to receive payments from debtors when they are under threat of arrest. In fact, “courses and articles on the practice of debt collection law even advise lawyers that arrest warrants are an effective way to extract payment.” Private collection agencies employ their own discretion in determining which cases should trigger a referral to the court. Troublingly, with the power to “threaten incarceration” comes the power to deem individuals’ nonpayment presumptuously willful––a presumption that is rarely challenged by the flimsy interrogation of ability-to-pay hearings.  

The involvement of private entities like debt collection agencies means that an individual’s property is now being extracted not only to financially benefit government but also to benefit for-profit firms operating throughout the misdemeanor justice system.

Given the deference to debt collection agencies judges show when issuing warrants for civil debt, it is possible that this deference is replicated in the LFO context. The ACLU found that “courts will generally order the arrest of a debtor [at] the request of the creditor or debt collector” and “[s]ome judges reflexively issue warrants at the creditor attorney’s request.”

A law professor observed a judge in the Boston Municipal Court stamp over 100 warrants for the arrest of debtors in a single day––so many that the stamp broke. Although courts still need to conduct an “ability to pay” hearing for the debtor to meet the requirements of Bearden, the involvement of private debt collectors may increase the likelihood of the initial issuing of a capias warrant. And given the cursory character of “ability-to-pay” hearings, increasing the likelihood of an arrest warrant substantially increases the likelihood of incarceration.

Consequences of Capias Warrants

In the words of Lisa Foster, co-director at the Fines and Fees Justice Center, “Warrants are a counterproductive and expensive method of coercing people to pay fines and fees…The harm to individuals and their families can be devastating. Just a few days in jail can cost a person their job, their housing, and even their children.”

While the negative impact of detention—even short-term detention in jails–is becoming more widely understood, what is left less interrogated is the profound impact of a capias arrest warrant even if an individual never goes to jail. Studies that have focused on the experiences of individuals with LFOs have found significant repercussions even if the individuals were not jailed for their nonpayment: LFOs, and the looming threat of arrest they carry, erode individuals’ access to employment opportunities, housing, healthcare, legal services, and law enforcement services. 

The concept of “system avoidance,” whereby individuals who have had contact with the criminal justice system avoid surveilling institutions that keep formal records, offers a useful way to understand the impact of a capias warrant. Empirical studies demonstrate that “individuals who have been stopped by police, arrested, convicted, or incarcerated are less likely to interact with surveilling institutions, including medical, financial, labor market, and educational institutions” due to fear of detection by authorities. Lack of engagement with medical care, banks, schools, and employment is in turn associated with poorer outcomes for health, financial security, upward mobility, and crime.

This impact is intuitive: not having a bank account can lead to increased reliance on pernicious alternative financial services such as predatory lenders; not receiving regular medical care can lead to late detection of health issues; not attending educational institutions limits employment opportunities. 

Studies that have focused on the experiences of individuals with LFOs have found significant repercussions even if the individuals were not jailed for their nonpayment: LFOs, and the looming threat of arrest they carry, erode individuals’ access to employment opportunities, housing, healthcare, legal services, and law enforcement services. 

System avoidance induced by failure-to-pay warrants also creates a “catch-22” in which debtors are fearful of going to court to resolve their debts and legal issues. One debtor with outstanding warrants for unpaid tickets sent a message to a judge saying: “I am scared to come to court because I don’t want to be arrested. My children need me. The vehicle I was [driving] was my ex husband’s and I got pulled over using it to transport 2 of my children to [the doctor]…because I did not and don’t own a vehicle. I will do anything not to go to jail. Please. I have 2 warrants . . . I believe.” In this way, capias warrants ironically function as a barrier to courthouse access, and, consequently, legal absolution.

In the most extreme cases, system avoidance can endanger individuals’ bodily safety, as debtors with warrants may be afraid of seeking the help of law enforcement due to the threat of arrest. In one instance, a victim of domestic violence with five children did not immediately call the police when her husband became violent and abusive because she feared that the police would arrest her on a capias warrant stemming from unpaid traffic fines. And those fears were not unfounded. After the police arrived, they ran her name, saw the outstanding warrant, and arrested her for her unpaid fines. Unable to pay the fines, she remained in jail for 4 days. All because of a traffic violation.

In one instance, a victim of domestic violence with five children did not immediately call the police when her husband became violent and abusive because she feared that the police would arrest her on a capias warrant stemming from unpaid traffic fines.

Unfortunately, debtors’ fears of increased vulnerability when exposed to law enforcement are justified given the Supreme Court’s concerted chipping-away at constitutional safeguards for individuals with warrants.

In a 2016 case, Utah v. Strieff, the Court held that if a police officer unlawfully stops someone and then finds an outstanding warrant (including a failure-to-pay warrant) after running a background check, that police officer can then lawfully seize any evidence––even though the warrant that was the basis for the seizure was discovered during an unlawful investigatory stop.  In other words, this case “allows the police to stop you on the street, demand your identification, and check it for outstanding warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.” As Justice Sotomayor argued in her dissent, allowing police this free rein essentially creates a group of second-class citizens who are subjected to police invasion of constitutional rights at a whim. And, as she succinctly adds, “it is no secret that people of color are disproportionate victims of this type of conduct.”

Failure-to-pay warrants also impact individuals’ daily lives by constraining their employment opportunities. Because of their system avoidance effects, capias warrants have been shown to spur some individuals to abandon the formal labor market—where risks of detection are heightened—in favor of illegal forms of income.

But even if a debtor is not discouraged from seeking employment in the formal labor market, many employers will not hire somebody with an active warrant, even if the underlying offense is simply a failure to pay fines. One Houston mother was making $9 per hour at a call center and had the opportunity to move to a job at a big-box retailer earning $14 per hour – a raise that would have had a material impact on her family. The potential employer required, however, that she clear the capias warrant related to nonpayment of fines that appeared during a background check. But because she could not afford to clear the warrant, she lost the employment opportunity – and soon thereafter lost her housing for her family as a result.

Capias warrants directly jeopardize debtors’ housing, too. Public housing programs often place strict limitations on who is eligible to receive assistance. The St. Louis Housing Authority, for example, used to be able to cite any arrest records, including for failing to pay fines or appear in court, as grounds for denial of assistance. Debtors also cite barriers to savings and checking accounts, loan denials, and insurance denials as a result of outstanding failure-to-pay warrants, which effectively bar many people from acquiring stable housing.

Reforms

Revenue-raising fines and fees for traffic violations, misdemeanors, and felonies should eventually be wholly eliminated; the current system creates perverse incentives that have no role in a justice system. Courts and police departments should be funded, like all our other government functions, through tax revenues. Misdemeanor policies and procedures are highly decentralized and managed on a local level, and, unfortunately, a complete overhaul of the fines and fees system is politically impractical in a number of jurisdictions across the country. But incremental change is still tremendously powerful, and there are several reform options that can at least begin to ameliorate the injustice of the current system. 

Courts and police departments should be funded, like all our other government functions, through tax revenues.

If revenue-generating fines are not eliminated entirely, then fines should, at the very least, be proportionate to each person’s financial circumstance. They can be calculated based on a number of concrete numerical factors, such as a reasonable cost of living, number of dependents, reliability of employment, and more.

As it turns out, when it is easier for individuals to meet their fine obligations, they will pay more regularly and often increase overall revenue. For example, after the San Francisco Municipal Transportation Agency (SFMTA) lowered fees for payment plan enrollment from $62 to $5, increased the timeframe to pay off the ticket, and waived late fees upon completion of the payment plan, SFMTA saw a 400% increase in people starting payment plans and more than a 300% increase in revenue in the first three months of the new payment structure. And SFMTA is not unique: Beth Colgan, a professor at UCLA, examined several court systems that piloted penalties proportioned to people’s incomes and found that several of these courts brought in more revenue when using this approach. “The day-fines pilot projects suggest,” she writes, “that for jurisdictions where ability to pay calculations result in a decrease in sanction amounts, revenue benefits may be obtained even without improved collections services.”

Under a “day fines system,” courts set fine amounts using a two-part inquiry.

Source: Criminal Justice Policy Program, Harvard Law School

As for capias warrants specifically, courts should eschew arrest as the standard response to missed payments. Individuals are not refusing to pay as an affront to the authority of courts; rather, most Americans are so financially insecure that a single unexpected expense can prevent them from meeting their minimum monthly obligation. States have eliminated the disproportionately punitive practice of immediately issuing capias warrants through both judicial or legislative action. Colorado, for example, passed a law in 2016 that prohibits courts from issuing arrest warrants for failure to pay fines. Iowa, on the other hand, has reduced the use of capias warrants through a judicial, rather than a legislative, decision: in Beck v. Elmore, the Idaho Supreme Court held that the practice of issuing an arrest warrant for failure to pay fines and fees without first analyzing a defendant’s ability to pay violates the Fourteenth Amendment to the U.S. Constitution. In other words, in Idaho, courts can no longer issue a warrant first and then provide an ability-to-pay hearing once an individual is arrested, as is the common practice right now.

Individuals are not refusing to pay as an affront to the authority of courts; rather, most Americans are so financially insecure that a single unexpected expense can prevent them from meeting their minimum monthly obligation.

Some localities have taken smaller steps to reform the practice of issuing capias warrants. The city of Biloxi, for example, requires that the court “shall not issue any warrant directing arrest for alleged [financial sanction] nonpayment absent a Compliance Hearing,” and court must provide people with 21 days’ notice prior to holding a compliance hearing. With this notice comes an “advisement of rights,” which emphasizes the right to counsel and explains that the person can ask for waiver or reduction of the debt owed. Similarly, the Missouri Supreme Court instructed that courts must first use a court order for appearance and only use warrants after a person fails to appear. This switch from arrest warrants to summons, however, only delays the harms of the warrant, as courts often move quickly from a summons to a warrant when the individual does not attend their scheduled appearance.

Instead of warrants, courts should employ reminders for payment, which have been shown to be an effective, nonthreatening tool. Reminders can be sent via text, phone call, or mail, and can be sent at regular intervals. In a text message pilot program designed by University of Chicago Crime Lab, researchers found that a text message reminder for a court date, which included information about the consequences for failing to appear and how to prepare for the court date, reduced open warrants for failure-to-appear by 32%. While this study focuses on warrants for failure-to-appear rather than failure-to-pay––and barriers to appear are certainly different than barriers to pay––the study nonetheless shows the potential of reminder systems to improve compliance with court orders.

Some localities are piloting such systems: after the city of Sherwood, Arkansas was sued, the city implemented graduated responses to nonpayment that includes reminders. Now when a person in Sherwood misses a payment, the court will first call the person or send a letter to ask whether the individual would like to provide updated ability-to-pay information.

This is an example a text reminder system piloting by University of Chicago’s Crime Lab, shown to improve the rate of court appearances.

Source: UChicago Crime Lab

The few additional months provided by a reminder system can allow people to catch up on missed payments, especially when people are living paycheck to paycheck. People can also use this time to explain changed circumstances to the court and seek a revision of their payment plans, as is the case in Sherwood. Also, because a reminder does not threaten incarceration like a warrant, people might be less likely to engage in system avoidance and trust can be built between the community and the courts. And if an individual still does not pay, judges should review individual cases before escalating to a summons to see if modification of the amount owed or simply waiving remaining fees and fines would be a more appropriate action; more often than note, the appropriate response missed payments is not attempted collection, but rather simply dismissal of the fines.

In order to curtail the impact of corporate, private interests in the misdemeanor system and capias warrant process, the use of private collection agencies should be limited and ultimately eliminated. If used, private collection agencies should be prohibited from charging fees of more than, for example, 1-5% percent of the total amount of debt owed to the court. They also should be required to end collection efforts after a certain period of time and to refer cases back to the court when an individual cannot pay, rather than requesting the court for capias warrants.

Ultimately, a comprehensive overhaul of our misdemeanor system––including reforming policing practices, limiting prosecutorial discretion, decriminalizing low-level offenses, eliminating fees and surcharges, and much more––is necessary to redeem our injustice-riddled misdemeanor system. In fact, it’s worth thinking about whether many of the misdemeanor charges that criminalize common behaviors, like jaywalking and loitering, serve any public safety goal at all. Upon scrutiny, the misdemeanor system’s façade of public safety begins to look frighteningly fragile, and its revenue-based reality comes into sharp relief. It’s time to challenge this system––even though the crimes might be “minor,” the consequences on people’s lives are certainly not.

Arzu Singh

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