Courts, profit and the monetization of America's justice system

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Daniel Hatcher used to work as an attorney for Maryland Legal Aid. He says he's seen American courts turn into a system that's more interested in profits than justice.

"California is pursuing billions in fines and fees, and Alabama, multiple prosecutors' offices in Alabama generate 70% of their total funding solely by the pursuit of these court ordered fines and fees against the poor," Daniel Hatcher says.

Hatcher says that when profit becomes the point, families become targets of the very justice system that is meant to protect everyone.

"You can have the same family that is pursued by a court contract to generate revenue and then another branch of the court and the police and the probation departments, prosecutors are all pursuing fines and fees against that family," Hatcher adds.

Today, On Point: Courts, profit and the monetization of America's justice system.

Daniel Hatcher, professor of law in the University of Baltimore’s Civil Advocacy Clinic. Author of Injustice, Inc.: How America's Justice System Commodifies Children and the Poor. (@PovertyLawProf)

Jack Frech, former director of the Athens County Department of Job & Family Services from 1981 to 2015. He now works on poverty issues with the political science department at Ohio University.

Kari Bloom, administrative judge in the Hamilton County (Cincinnati) Juvenile Court in Ohio.

On first knowledge of the monetization of America's court system

Daniel Hatcher: "My earlier, earliest experiences were representing children pulled into the highly dysfunctional Baltimore foster care system. And I represented hundreds of foster youth, of all ages. And there are moments from that time that are seared in my memory. Like I remember a particular youth. He was a little older, about 12. And what was a fairly considered by the system, simple proceeding in terms of a review. He's desperately wanting to be reunified with his mother, who is struggling with poverty. I was unable on that day to make it happen. You know, through the advocacy.

"And I'm having to explain to him outside in the crowded, chaotic courthouse halls that he's not going home to his mother, and he pulls on his cap. You know, like at that point, he's got this stern, you know, sort of a tough exterior. But at that moment, he pulls on his cap. He's just looking at me initially stoically. And then his eyes start watering. You take that with you as you move forward.

"And flash forward. I represented a former foster youth some years back. I'll call him John, even though that's not his actual name. But he was pulled into the foster care system at about 12 when his mother dies. He's moved at least 20 times between temporary placements, to group homes, never getting the services that he needed. I mean, John talked about ... he loved cars and he really wanted at some point to become a mechanic, but the agency couldn't even, wouldn't even help him with the cost or the process of getting a driver's license.

"So meanwhile, you know, what I uncover with John is while he's in the system, he's eligible for survivor benefits because his parent died. The agency figures that out, doesn't tell John. Doesn't tell them that they're applying for benefits on his behalf, doesn't tell them that they're applying to take over control of the money as what's called a representative pay. And they took every dime from him without telling him. Not only taking the money but taking that connection. That potential connection to a deceased parent. You think about what you could do with not just the money to help yourself, but to know your parent left resources for you to help yourself.

"And also, as part of that, you know, I become more and more driven in the research covering contract for the state of Maryland, contract with the company by the name of Maximus. And one of the contract documents literally referred to foster youth as a revenue generating mechanism. And this way of literally pursuing and taking survivor and disability benefits from youth in their care, that's a practice as I uncovered in my research and writings is happening across the country. And that's just one of the practices that led into to finding all these revenue mechanisms which are very systems are justice. Are also part of this poverty industry."

On commodification of children and the poor

Daniel Hatcher: "Unfortunately, most people don't have full awareness of how the systems are operating and how low-income individuals and children in particular are pulled into the systems. So, you know, juveniles can be pulled in, and youth can be pulled into the system, both through allegations of abuse or neglect. Most of the cases in the child welfare system come from neglect allegations which are a direct result of poverty, where you have a struggling parent doing her best. You know, to try to struggle with barrier after barrier of poverty that's trying to keep the family together.

"And then the child who is facing difficult situations, as can often be referred to the juvenile justice side of things through delinquency proceedings. Often it can even come from the school that is supposed to be educating the child, will instead make a referral. And there's been, you know, multiple heartbreaking, unfortunate reports written about the school to prison pipeline. So youth, you know, pulled into the system are not there by choice. And then we learn that not only are they being harmed by these systems, they're being monetized. The harm is being monetized."

On the system that has been built up since the mid-90s

Jack Frech: "I think that many of the judges I've talked to, you know, are aware of the irony and the conflict of the fact that the people who are standing in front of them are there because they're so poor. You know, that this has created so many problems. And yet, you know, it's involved ... financing system for the courts have evolved in such a way that they need to have those people standing there in order to help pay their staffs.

"Going back a little farther on this, you know, back in the 80s, I distinctly remember when a child support program started offering some reimbursement for this kind of administrative costs. Prior to that time, the courts placed dealing with child support at the very lowest level of their interest. And the same thing, I think, was true for child welfare issues. But then when suddenly we had a resource available to help them pay for at least some of these costs for administration, for magistrates, those kind of things, obviously they took much more of an interest. But I can give you a direct example in our county where we literally only had one judge in our county until we got aggressive about filing child support cases.

"We created enough cases that they were then able to create a new judgeship. So now we had two judges instead of one, one of which was only there because of the number of child support cases we filed. And they, of course, ended up hiring full time magistrate to hear those cases. Four years after that, whenever I would discuss any issue with a judge, one of the questions they'd always ask me, you know, are we still going to keep saying this many child support cases?

"I mean, it had become vital to literally the existence of that judge's position. And, of course, a number of staff members at the court. So there's no doubt that they became, they had a huge, vested interest in keeping those cases in front of them, which on one hand was progress. I mean, they were actually hearing a lot more child support cases doing more about it. But on the other, they certainly were having to make decisions with a vested interest in the back of their minds."

On Hamilton County juvenile court proceedings

Kari Bloom: "It does not sit well with me. Some of the things that the author mentioned are likely happening and should stop. In Hamilton County, a very, very, very small amount of money comes into our court through costs. And fine. And part of that money is what we would generate. It's not even generate. It's what we would collect for filing fees on private complaints. So those are people who come in off the street and decide to make a custody or a child support complaint themselves. That is not something that law enforcement or the court or anyone else has asked them to do."

On reform to the system

Kari Bloom: "The power rests with those who make the law in a separation of powers. Here, me as the judge, my job is to enforce the law, not to make them right. And so I don't think that there is any way that me, Judge Bloom, can change the law without going to a legislature and asking them to. The people with the power to change our costs and fines, they are controlling our state's purse and they are controlling so many other things about how a court works, including how much money courts have to pay back for operations that happen daily."

On how to correct the system

"You see these collaborations between the justice institutions, you know, again, not just our courts, our prosecutors' offices, probation departments, policing agencies. Often partnering with private companies. And then what you're seeing is not just that increasing collaboration with private actors, our increasing outsourcing of some of the functions. But it's sort of a distorted form of capitalism on which our institutions of justice are shifting and operating like those private actors, that are taking on the mindset right, of maximizing efficiency and revenue rather than maximizing equal and impartial justice.

"How do we start to unwind it, I think has to start with us individually, right? Including attorneys operating in the system, including judges operating in the system. I do think there is concern with the funding structure, to be sure, coming from the state level and the county level. But in Ohio, it's the courts that are entering and signing on to these contractual arrangements. You know, like so it falls to all of us. And it's crucial. And these aren't just words that are theoretical. In terms of the words of equal justice, you know, the words in our Constitution, they only have meaning if we give them meaning. Ethics only have meaning if we give those ethical obligations meaning. And it has to start with us individually."

The Appeal: "Injustice, Inc.: How America’s Justice System Commodifies Children and the Poor" — "Juvenile courts in multiple states are entering into contracts to generate revenue when removing children from their homes or by pulling children into the juvenile justice system under constant threat of removal."