(Color)Blind Reform: How Ability-to-Pay Determinations are Inadequate to Transform a Racialized System of Penal Debt

Introduction

As economic sanctions imposed with a criminal conviction proliferate nation-wide, reformers have fought for and won the institutionalization of ability-to-pay determinations. While often viewed as a victory in the effort to end the criminali- zation of poverty, there is a substantial risk that ability-to-pay determinations may actually exacerbate the exact problem they seek to address. Drawing on a 50-state survey of codified ability to pay standards, this article problematizes the practice of ability-to-pay determinations. I argue that ability-to-pay determinations at best reduce court debt burdens and at worse represent a neoliberal racial project that serves to redistribute resources from Black families to state governments in a regressive taxation scheme that exacerbates the racial economic divide. While there is growing scholarly discourse on criminal court debt, this article is the first to apply a critical race theory analysis to scrutinize ability-to-pay determinations as a state-based attempt to neutralize calls for more systemic reforms to penal debt. It is through this lens that this article describes the ways in which ability-to-pay determinations require invasive inquiries into a defendant’s financial resources,apply under-inclusive criteria to define “indigency,” and invoke implicit or explicit racial biases. Moreover, the institutional players who implement ability-to-pay determinations have a vested interest in collection that increases their propensity to assess more rather than less, and the government bureaucracies in which they operate are commonly regarded as racialized structures that both generate and perpetuate race-based outcomes in the criminal justice system. Ultimately, this article cautions reformers to more critically consider the place of ability-to-pay determinations in movements for racial and economic justice.

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