Last March I was pulled over by a New York state trooper for going 91 mph in a 65 mph zone. In my defense, I had just come back from Rome and woke up with a sore throat, chills, and a fever; I thought I had covid-19. It was actually just Strep, but at the time I didn’t know that and I was only trying to get home. The officer (who was not friendly nor was he interested in my covid-19 narrative) gave me a ticket for reckless driving. The fine for my ticket was almost $600.
Similarly, Vera Cheeks, a resident of Bainbridge, Georgia, rolled through a stop sign and was fined $135. When she could not afford to pay the amount in full, the fine was raised to $267. Cheeks’ fiance pawned her engagement ring and a lawn implement to make a payment so that she could avoid going to jail.
Both Cheeks and I broke the law and, although no one was injured, our actions could have harmed someone around us. We are not, however, criminals.
The first thing I learned in my criminal law class was that (theoretically) all crimes can be divided into two categories: mala in se and mala prohibita. Mala in se crimes are those that are wrong in and of themselves (i.e. murder, rape, robbery, etc.). They are things that we, as people with morals, know we should not do. Mala prohibita crimes, on the other hand, are only wrong because the governing state has decided so. The most common example of this is speeding; it is only illegal to go 30 mph in a neighborhood because the government has decided that the speed limit is 25 mph. Though this way of distinguishing crimes— which was derived from old British common law— has been disputed and does not hold much ground in modern criminal proceedings, it can prove to be a useful way to think about what is illegal in America and why.
In 2015 Brock Turner, an affluent student-athlete at Stanford University, raped an unconscious woman behind a dumpster at a party. He was convicted on three counts of felony sexual assault but was only sentenced to six months in prison—though he only served three. That same year, Levi Mitchell, a 53-year-old homeless man attempted to buy toothpaste and food with a counterfeit $20 bill. When police apprehended him they found $100 worth of counterfeit money on his person. He was sentenced to three to six years in prison. Mitchell’s crime is nearly identical to the one that prompted police officer Derek Chauvin to kneel on George Floyd’s neck, murdering him, last summer. I find it extremely hard to argue that appropriate justice was served in any of these cases.
Brian Stevenson, the executive director of the Equal Justice Initiative, has challenged the impact that economic status can have on equity throughout his career. “We have a system of justice that treats you better if you’re rich and guilty than if you’re poor and innocent,” he told Oprah in 2015. “Wealth–not culpability–shapes outcomes.” While neither Mitchell nor Floyd was innocent, neither received a sentence that fit their crime. Wealth is just as relevant in arrests and convictions as race is.
This is extremely prevalent in our use of cash bail, which has led to a nationwide over-reliance on incarceration. Cash bail is used to ensure that a defendant will appear at their trial and/or hearings. The bail amount is determined by a judge after looking at various factors including but not limited to if the defendant is a danger to their community and if they are a flight risk. If the accused cannot pay the amount of money determined by the court they will be detained while they await trial. Pretrial incarceration is an issue itself as it violates the legal principle that a person is innocent until proven guilty, but cash bail specifically targets and harms indigent defendants. It also encourages further poverty by inhibiting a person’s ability to work.
Kevin Shepard was 57 and living on social security disability when two armed county employees kicked down his door to deliver eviction papers. Shepard, not knowing who the men were, grabbed his gun. Though he did not fire it, he was charged with unlawful use of a firearm. He could not afford to post bail and was incarcerated. He passed away in jail waiting for his case to be resolved.
Shepard’s situation is unfortunately not unique. An estimated 70% of the jail population in the United States are pretrial detainees, i.e. people who could not afford to pay bail (or were not offered it). To add insult to injury, most people who cannot afford bail can also not afford to hire a private attorney, which often means they will be detained for longer as they wait to be appointed one.
We are punishing people for being poor.
We have made homelessness a crime by putting spikes on public benches, tearing down encampments on public property, and citing or arresting people for sitting or sleeping on sidewalks. We have made drug dependency a crime by imprisoning people as opposed to making treatment affordable and helping those who need it to seek it. We have made “looking suspicious” a crime with stop-and-frisk policies that allow police officers to search, question, and sometimes temporarily detain civilians on the street under the guise that there is reasonable suspicion of a crime. We have made prostitution a crime—restraining the right of people to use their bodies as a source of income—citing that it disrupts the order of the community when legalizing it would prevent crime by decreasing the rate of sexual assaults and sexually transmitted diseases in the industry. All of the above-mentioned actions are mala prohibita; we have made them deliberately punishable.
I saw something on social media this week—though I can’t remember exactly where—that said something along the lines of “most American’s are closer to living in poverty than they are to being rich.” If I remember correctly the post then went on to support higher taxes on the ultra-rich, but it was the first part that really made me stop and think.
In 2018 38.1 million Americans lived in poverty. The threshold in that year was defined as a four-person household earning $25,000 or less annually. That is 11.6% of the population. In comparison, in 2018 about 3% of the population had a net worth greater than 1 million dollars. I will note that while having a net worth of 1 million dollars is definitely more than a comfortable way to live life, it is far from being ultra-rich. In the same light, though it may not technically be considered poverty, living on less than $50,000 a year per household can be excruciating in some states.
I am not poor; I have never been hungry or homeless, but I also am not—and likely never will be—rich. I could (barely) afford to pay my $600 speeding fine, but I know that if I could not have my family that would have fronted me the money. I have a support system—which I admittedly do not always take advantage of—but so many people don’t.
When people are using counterfeit money to buy necessities I think it says more about us as a country than them as a person. We do not support those who need help; instead, we punish them for our national shortcomings. While racism may be America’s original sin, poverty is not far behind. We should not be penalizing people because they lack monetary resources in the same way that we should not be lenient on those who have more capital. If being poor is a crime then unearned wealth should be too.
* To help combat economic disparities in our justice system you can donate to organizations such asThe Bail Projectand/orNational Bail Outwhich take action against mass incarceration through posting bail for those who cannot afford it. You can alsovote; use thislinkto see which Senate and House candidates are supported by the bail lobby.
