Making Criminals Pay
At 7 a.m. on a frosty Saturday morning in Morristown, N.J., men and women gather in a parking lot across from the train station and stand huddled alongside two vans marked "SHERIFF'S DEPARTMENT." Most are young, a few are middle-aged; all have a hang-dog look. All of them have been convicted of larceny, drunk driving, and other nonviolent offenses, including failure to pay fines imposed as part of a criminal sentence. All have been sentenced to jail, and given the option of serving their jail time on weekends through sheriff-supervised community service, under a program called SLAP, for Sheriff's Labor Assistance Program. At 7:30 sharp, they will get into the vans, where they will don orange jerseys with "SLAP" blazoned across the front. Men from the sheriff's department will drive them to sites all over the county to pick up trash, repaint buildings, clean up parks, and sometimes even do skilled labor such as carpentry and roofing, if they're qualified and if local organized labor groups don't object.Under ordinary circumstances, these people would in all likelihood be either thrown in jail or let off scot free. In most cases they deserve neither. The two major criminal sanctions short of imprisonment -- fines and unsupervised community service -- are enforced haphazardly at best. For every dollar the courts impose in criminal fines, they collect (on average) less than a dime, despite the fact that much of this money is slated to reimburse victims. As for community service, "it's a fraud," as one former judge told me. "They can't really enforce it, so they write it off." During the past two decades, as the U.S. prison population has exploded, the number of people on probation -- those who have been convicted of crimes and given sentences other than jail -- has grown even faster. There are now over 1.7 million people in jails and prisons in the United States, and roughly three times as many on probation. According to a survey published in 1992 by Patrick Langan of the Bureau of Justice Statistics, about half of all probationers did not comply with the terms of their probation, and only one-fifth of violators ever went to jail for their noncompliance. This means over two million convicted criminals are ignoring their "punishment" and getting away with it. You don't have to be James Q. Wilson to see that this kind of neglect sends a dangerous signal to more serious criminals.SLAP is one of a new breed of efforts to put the teeth back into probation. Unlike a prison sentence, SLAP allows offenders to keep their jobs and maintain their families. But unlike fines or court-ordered community service, which are routinely ignored with impunity, SLAP has a bite. If you fail to show up on Saturday morning, you go directly to jail with no hearing, because you've already been sentenced. No court dates, no fruitless haggling with judges and probation officers. "We make it real simple for them," says Dan Coburn, the retired Superior Court judge who created the program in 1986. He counts five on his fingers as he speaks: "NO SHOW, IN YOU GO."When SLAP was first introduced in Morris County, New Jersey, in 1986, some local blacks got angry, because it evoked ugly associations with chain gangs down south. "Then these black mothers started to realize their sons could go to jail instead," says Coburn. "Next thing you know, they're all asking for their kids to be on SLAP." Most of the people I spoke with at the Morristown projects, known as The Hollow, confirmed his account. "It helps you stay out of jail," said one sore-faced young man named Gerard, who works at a local dairy-pack plant. "And it allows you to pay fines. How you gonna pay fines if you can't work?"At the same time, there's no question that SLAP makes good use of one of the oldest principles of punishment: public shaming. "A lot of people don't like SLAP because it embarasses them," said Sarah Garnet, a middle-aged black woman who lives in The Hollow. When I repeated that comment to another local woman, she replied, "They've messed it up so let them clean it up. And if they don't want to be seen in those orange jumpsuits, don't do the crime!"So far, it seems to be working. The recidivism rate of SLAP participants has decreased significantly, and their rate of compliance with court-ordered payments has shot up. It has eased jail overcrowding everywhere it's been used, and saved hundreds of thousands of dollars in incarceration costs. (A day in a New Jersey jail costs the state $75; a day of SLAP costs about one tenth that amount). "It has taken a lot of administrative responsibility off the municipal court," says Bob Gold, a municipal court judge in Mount Olive, N.J.. "Individuals who ignore probation, fines, or community service would ordinarily have to come back to me. SLAP takes care of itself and cuts down on bureaucracy. There's a lot of trickle-down in this. The more people in law enforcement understand that, the more it's going to spread."ScarecrowsDan Coburn, the creator of SLAP, has spent over a decade trying to transform what the courts call "conditions of probation" -- fines and community service -- into a truly effective deterrent. A smallish man with a salt-and-pepper beard and wily brown eyes, Coburn grew up working-class in Newark and worked as a public defender and a municipal prosecutor before becoming a judge. He had seen firsthand the way the system's failures bred contempt and more crime. "These are kids or grownups you could have stopped if they thought there was going to be accountability," he says. He's not a literary man, but Coburn sometimes illustrates his point with a quote from Shakespeare's "Measure for Measure":We must not make a scarecrow of the law,Setting it up to fear the birds of prey,And let it keep one shape,Till custom make itTheir perch and not their terror.What concerns Coburn most of all is the effect of the law's failures on young people. "Starting as a juvenile, you can get caught six, seven, eight times, and nothing will happen to you," Coburn says. In most states, he explains, a kid who steals a car will be bounced from juvenile conference committees to probation officers, with no real consequences to pay, no matter how often he neglects his punishments -- even, in fact, if he steals another car. "This goes on until the kid's eighteenth birthday, and then he's cleansed of all sin, and he becomes a first offender," Coburn says. "The whole process starts all over again. And the kid has learned a very valuable lesson: America is a wonderful place to live."If the kid keeps stealing cars into his twenties, he may get more of the same treatment. In one New Jersey county, a prosecutor told me, probation cases that are supposed to be checked every month only get attention every three to four months. The district has only one car. "Basically, it's unsupervised," he said. "And this is a good county." Community service, he adds, is "a joke. Usually, by the time they try to figure out if you've done it or not, it's too late." Even when they do keep up with criminals, courts don't always have the resources to bring them in. "We put out thousands of warrants [for the arrest of non-compliers]," one former New Mexico court administrator told me, "but we never told the public we used to erase them. If you could escape us for a year, you got off scot free."Young car thieves aren't the only ones getting off easy. In a system that puts all its resources into keeping violent felons off the streets, white-collar criminals can also fall through the holes in probation's net. One convicted savings and loan swindler, who with his brother owed $4.8 million in court-ordered restitution, managed to avoid the debt for years, simply by writing "deceased" on a dunning letter to the government. Others game the system without even pretending to be dead. A master stock swindler named Ramon D'Onofrio, convicted of fraud-related crimes five times, managed to avoid prison for 20 years, leaving unpaid about $11.5 million in fines and civil judgments.How do they get away with it? Part of it is the government's legendary incompetence at tracking and collecting fines. Each of the 94 federal court districts has its own system, and sometimes practices vary within a single district. In 1987, appalled at this chaos and its obvious failures, Congress ordered the Administrative Office of the Courts to set up a National Fine Center to track money owed by criminals. Nine years later, after the Center had wasted $11 million that was supposed to go to crime victims, an independent study concluded that the whole effort was useless and should be dissolved at once. Congress quickly complied, thereby sending some 20,000 debtor accounts back to the 42 district courts that had converted to the Fine Center's system. This meant reinstalling their old logging systems, often on outdated computers or even ledger books. "We're going back to the Dark Ages," one despairing court clerk told the ABA Journal at the time. Sen. Byron Dorgan, who co-chaired the Congressional hearings on the Fine Center, concluded: "If you're in the position of owing somebody money, you ought to pray you owe it to the federal government. You won't be found."Since the demise of the Fine Center, there's no indication that the courts have improved their record on catching up with deadbeats. According to a June 1998 General Accounting Office report, federal probation officers are given scarcely any guidance on how to set up payment schedules. As a result, the report concluded, "Some offenders identified expenses such as a European cruise, servant salaries, entertainment expenses, and recreational boat payments as necessary, thus limiting their ability to pay fines to the government or restitution to victims." Worse, these same probation officers were often much harder on people who couldn't afford to pay. One single mother was convicted of filing a false home-loan application and was ordered to pay $32,000 in restitution. She reported a monthly income of $2,400 and was given a monthly payment of $1,000 -- no easy burden. Meanwhile, a man convicted in a fraud scheme, who had been ordered to pay a fine of $15,000 and restitution of $153,000, was given a monthly payment of $100, despite the fact that his income was much higher and he admitted to owning a second home worth $850,000.At the state level, by all accounts, the situation is much worse. What's most amazing of all is that until recently no one believed anything could be done about it. Many judges will still tell you that most of the $8.1 billion owed to federal courts in fines and restitution, and an equal portion of the uncounted billions owed to the states, is "uncollectable", or that it would cost more money to collect it than you'd get back in fines.Payback TimeLeafing through the records on fine-collection is enough to make anyone lose faith in the government's ability to get the job done. But as it happens, Coburn and a few other maverick judges and court administrators have proved that the skeptics are wrong -- that the courts can indeed hold criminals accountable, as long as they're willing to get serious about enforcement. "Once we had SLAP as a backup," says Coburn, "we knew we could start enforcing fines," because judges who had been reluctant to send deadbeats to jail were perfectly willing to give them SLAP. In most cases that wouldn't even be necessary, Coburn recognized, if he could find a better way to remind offenders of their debts short of a full hearing with a judge. With the blessing of the state Supreme Court's chief justice, Coburn and his daughter Rachel set up a program to be run by hearing officers, with the presiding judge making a brief appearance to set the tone. The result was New Jersey's Comprehensive Enforcement Program, or "Enforcement Court," which has brought tens of millions of dollars into state coffers and made fines a sanction with very sharp teeth.The principle behind the court is excruciatingly simple: Don't make threats you can't enforce. In many states, the courts do just that. "It's a little like the telephone company never sent you a bill, then sent a notice saying if you don't pay, we'll cut your service," says Judy Greene, who did some seminal research on fine-collection for the New York-based Vera Institute of Justice in the 1980s. And then, most of the time, nothing happens. With Enforcement Court, offenders are sent a progression of warning letters reminding them of their debt. If they show up in court, hearing officers will work out an affordable payment schedule with them. If they don't, a warrant will go out for their arrest -- and it will be acted on.At one recent enforcement court hearing, Judge Joseph Falcone of the Passaic Superior Court walked into a room packed with convicted burglars, thieves, drunk drivers, and other assorted felons. The room came to a hush as Falcone walked to the far end of the room and introduced himself. "A little over four years ago," he said, "a survey was conducted through the state of New Jersey which indicated that tens of millons of dollars was owed to the state by people who had been convicted of a crime. Here in Passaic county the figure was $11 million. You folks represent a portion of that oustanding money." Falcone, a small, powerfully-built man with a stony gaze, clasped and unclasped his hands as he spoke. "Some of you are outright ignoring your obligations, some are paying when you feel like it. Some are, in effect, nickeling and diming the system." That, he said, was unacceptable. His court intended to collect every penny of the outstanding money, and to make the arrangements to do so "well before lunch."To his listeners, Falcone's proclamation probably sounded like an idle threat. Many of them have been through the system before, and they've heard the word on the street: No one will come after you. That's why Falcone had set up his court like a theater. In the center of the room were people who had never been here before. Sitting along one wall are people who had, and made agreements they did not keep. As the court proceeded, some of these people shook their heads and cast cynical glances at the excuses of the people in the center, as if to say "look out -- he means it." Meanwhile, standing alone on the opposite wall was a lanky black man in handcuffs and an orange prison jumpsuit -- visible proof that Falcone will carry out his threats. The man might have been offered SLAP in place of an actual jail sentence; but the sight of the cuffs was enough. By lunchtime, every person in the room had signed a court order enforcing their agreement to pay up.The evidence suggests that they will come through. Falcone's court alone has collected almost $1 million in the past year. Since New Jersey's enforcement court started in 1995, it has collected over $14 million that would have gone missing otherwise, and the compliance rate is rising rapidly as offenders realize they won't be let off the hook. A number of other states have followed suit. In every case, the amount collected dwarfs the cost of retrieving the money, which means there's plenty left over for crime victims and underfunded programs like drug treatment. Colorado is retrieving $8 for every dollar it puts into collections, and a few other states have had similar results.Why on earth has it taken us so long to do something so obvious? The answer has to do with the uneasy relationship between the judiciary, which imposes criminal sentences, and the police, sheriffs, and prison officials who carry them out. Unlike a prison sentence, a fine brings money back into the system. Once the fines build up, you create the possibillity for corruption -- or at least, the appearance of corruption -- and that can be enough to tarnish the court's all-important reputation for integrity. It's not just an abstract issue. In the early part of this century, the salaries of rural judges and court officers, particularly in the South, were often based on the fines they drew. Naturally, they'd collude with their buddies over at the police department to set up speed traps and bring home a little extra bacon. This kind of activity became so notorious that it led to a Supreme Court case in 1927, Tumey v. Ohio, in which the Court declared that such practices deprived the accused of due process, and forbade districts to draw on fines for judges' salaries. Ever since, many judges have been leery about getting too close to fine collection.Yet the idea that the temple of justice would be sullied if judges helped out with enforcement is ludicrous. The money New Jersey's enforcement court program brings in doesn't line the pockets of judges or anybody else. Instead, it goes to crime victims who would otherwise languish and become embittered at the system's failure to compensate them. The money also patches up some of the gaping holes in our justice system, funding desperately-needed programs like drug treatment and probation supervision. The real reason most judges don't help out with enforcement, according to Coburn, is not because of any high scruples about the reputation of the court, but because they feel it's beneath them. It's worth adding that some judges would rather head for the golf course on Friday afternoons -- knowing, as they do, that they can't be fired -- than finish up their backlog of cases. That's not to say that some judges aren't honestly overworked. But that's part of the genius of enforcement court: Falcone and the other New Jersey judges who run it only make a brief appearance at the beginning of the sessions, to let the offenders know they mean business. The offenders then work out a payment agreement with the court's hearing officers. They have a right to a hearing before a judge if they want one. But Falcone usually gives them a warning about that before he leaves. "I don't believe that I am as user-friendly as the people here," he said during the appearance I saw. "I will place you under oath and explain to you that if you willfully lie to me while you're under oath and I catch you, I will hold you in contempt of the court and give you six months in jail and a $1,000 fine on the spot. Anybody here raised in Newark?" A few hands went up. "So am I. Like many of you, I hung out, picked up a few pointers on the streetcorner, know when people are conning me, I think." Only a handful of people have taken him up on the offer in his almost four years of presiding over enforcement court. Altogether, he estimates that the time he's put into the program amounts to no more than a few days.One Fine DayDespite its effectiveness, enforcement court is not universally popular, mainly because fines are a lot easier on the wealthy than they are on the poor. "The drug-dealers can walk in and peel off a few hundreds, then walk out," as one former prosecutor told me. For the big shot CEO who owes a few thousand in fines, it's just as easy. The average petty criminal, on the other hand, gets hit a lot harder. He may be unemployed, or working for minimum wage. If he fails to ante up he may run into trouble with probation officers, and if he's unlucky, he'll get thrown in jail. Judges know this, and they often try to adjust fines to match the offender's ability to pay. But they're limited by the rigidity of the current rules, which standardize fines according to the offense and often include a variety of mandatory assessments for court costs.Fortunately, there's a remedy for this problem. Means-based fines are the most commonly used criminal sanction in most of Europe, and they're starting to catch on here. Unlike U.S. fines, means-based fines (known in the corrections biz as "day fines" or "structured fines") are carefully sculpted to fit the offense and the offender. Here's how they work: first, judges, prosecutors, and public defenders agree on a scale for judging crimes, running from say, 1 to 120. Instead of assigning an offense to a specific number, they establish a range, so that actual crimes can be rated more precisely according to their circumstances. When a defendant is deemed appropriate for a fine, the judge examines his or her financial stats (the courts already get this information in their presentencing investigations, so it doesn't unduly invade anyone's privacy). The judge then levies a fine that inflicts a punishment proportional to the offender's income. This isn't as complex as it sounds. In Germany, for instance, where means-based fines are very common, each day-fine unit is valued at or near the offender's daily net take-home pay.Means-based fines have been pioneered in a few districts in the U.S., and in every case they've raised revenue dramatically and decreased prison overcrowding. Best of all, they seem to serve the purpose of punishment better than any of the alternatives -- including prison. One study found "lower recidivism rates for those fined than for those either released without clear penalties or incarcerated," regardless of the seriousness of the offense. In Maricopa County, Arizona, which has the longest-running day fine program in the country, court administrators told me that this was the most powerful lesson they'd learned. In a system that often seems to work like a rusty animal trap -- either it won't move at all, or it slams shut at random -- fines have restored some confidence that the punishment can be made to fit the crime. "The more they make, the harder they get hit," says Lynda Fowler, Case Load Manager of the Maricopa County Superior Court.CrimestoppersOf course, even fairly-administered fines aren't the solution to every nonviolent crime. Some people are too poor to pay anything at all. Some are so rich that writing checks won't teach them a lesson. Some will continue to ignore their fines, because they know that judges like Joe Falcone are rare. That's where SLAP comes in, as a kind of Big Stick to hold over those who won't -- or can't -- repay their debt to society through their wallets. A day on SLAP amounts to $25 of any outstanding fine. The state doesn't lose in the bargain, because the work done by SLAP crews saves it untold amounts in maintenance costs -- not to mention the savings in avoided prison costs.Coburn likes to joke that SLAP and enforcement court have made Morris County, New Jersey, into the nation's largest jail. But the converse is also true. "It turns out you don't have to lock up many people if you enforce the conditions of probation," says Princeton University's John DiIulio, who has held up SLAP and Enforcement Court as national models. DiIulio has a reputation as a get-tough advocate of incarceration, but he claims both programs address "the great unmined field of criminal justice, where we'll get the most advance in cutting costs and recidivism over the next 10 to 15 years: unenforced conditions of probation."More importantly, SLAP and enforcement court may have helped to restore some public trust in the criminal justice system. In a time when some states are spending more on prison construction than they are on schools, and when some blacks see the nation's prisons as little more than a racist gulag, we desperately need new ways to tailor the punishment to the crime. After witnessing SLAP crews rake leaves and clean up a recycling plant, I sat for an hour at the Morristown Diner listening to a tough-looking Republican state senator tell me he supported SLAP and enforcement court because he was "sick and tired of seeing people getting nothing more than a slap on the wrist." Half an hour later, a judge joined me at the same booth and told me the same programs were "a way to deal with the over-representation of minorities in the criminal system." Unlikely as it may sound, they could both be right.This article originally appeared in The Washington Monthly.