Book Review: Profit and Punishment: How America Criminalizes the Poor in the Name of Justice
“Pay to play.” Nearly every state in the country has a law that authorizes judges to charge criminal defendants fees for the “services” they use as a result of their involvement in the criminal justice system. Examples include court fees, domestic violence fees, drug abuse interdiction fees, etc. Perhaps the biggest fee defendants may face is the daily fee they are charged for their time spent in jail.
Profit and Punishment, written by Tony Messenger, discusses the impact those fees have on the system’s most vulnerable population. Messenger describes this as an epidemic: the incarceration of people who are unable to pay the fees imposed for the sole reason that they are poor. These individuals found themselves in the criminal justice system usually as a result of a low-level misdemeanor. Many of the offenses committed were thefts of items that cost far less than the fees that were eventually imposed. Their punishment was not a lengthy prison sentence. In some ways, it was worse: a seemingly never-ending debt from various fees charged by the system to offset its operation costs. If defendants failed to pay their fees, they were jailed.
Yes, it is unconstitutional to confine someone for failing to pay fees the person is unable to pay. But as Messenger demonstrates through real-life examples, it is still happening everywhere. This is where the book really shines. Messenger describes the experiences of dozens of people caught up in the “pay-to-play” system. Messenger also discusses the various legal challenges brought against these laws and the groups effectuating change through their state legislatures.
In explaining the circumstances the individuals highlighted in the book found themselves in, at times Messenger goes to great lengths to downplay the defendants’ often poor decisionmaking. This almost detracts from his purpose in writing the book. “Pay-to-play” is not unfair because those ordered to pay the fees are not to blame; it is unfair because people with no ability to pay – for whatever reason – should not be incarcerated for being indigent, regardless of whether they committed the offense or not. It is unconstitutional, yet it is still happening.
The lack of organization of the book also made Messenger’s claims somewhat difficult for the reader to follow. At times the book was repetitive. Messenger could have made his points in fewer words (and chapters). The stories similar to one another could have been grouped together to emphasize each point Messenger wished to make. Instead, they often felt haphazardly plugged in wherever they would fit.
Nevertheless, as a criminal defense lawyer it is easy to get caught up in the busyness of practice and not pay attention to mundane matters like court fees. Often we are focused on keeping our clients out of jail now; we forget the fees can make things worse for them in the future. This book reminds us not to overlook the impact fees can have on our clients’ futures.