New data: Low incomes – but high fees – for people on probation

People on probation are much more likely to be low-income than those who aren't, and steep monthly probation fees put them at risk of being jailed when they can't pay.

by Mack Finkel, April 9, 2019

Over 3.6 million people are under probation supervision in the U.S., and in most states, they are charged a monthly probation fee. The problem? Many of them are among the nation’s poorest, and they can’t afford these fees. From our previous research in Massachusetts – and from reports from around the country – we know that the burden of probation fees often falls disproportionately on the poor. To determine the extent of the problem nationally, we examined the incomes of people on probation in a recent survey, the National Survey of Drug Use and Health. Our analysis confirms that, nationwide, people on probation are much more likely than people not on probation to have low incomes.

The National Survey of Drug Use and Health (NSDUH) is an annual survey that asks respondents about a broad range of topics, including their annual income and whether they were on probation in the past 12 months. The inclusion of recent probation history in the survey makes it a valuable data source for criminal justice research; it comes closer than any other source to offering a recent, descriptive, nationally representative picture of the population on probation.1 Prof. Michelle Phelps of the University of Minnesota, for example, used this survey in her recent analysis comparing people on probation to those in prison, using educational attainment as a measure of economic status.

Our analysis of the 2016-2017 NSDUH data shows that people on probation typically have much lower incomes than those who aren’t on probation:

Chart comparing the portion of the probation population making less than $20,000 per year, $20,000 to $49,999 per year, and $50,000 or more per year to the portion of the population that was not recently on probation. Most notable is that two-thirds of the probation population has an annual income below $20,000, compared to just 40% of the non-probation population.People on probation are much more likely to be low-income than those who aren’t on probation, and steep monthly probation fees often put them at risk of being jailed when they can’t pay. For a more detailed comparison, see the Appendix table.

Key findings from our analysis include:

  • Nationwide, two-thirds (66%) of people on probation make less than $20,000 per year.
  • Nearly 2 in 5 people on probation (38%) make less than $10,000 per year, well below the poverty line.
  • On the wealthier end of the spectrum, few people (9%) on probation have annual incomes of $50,000 or more, while more than a quarter (28%) of those not on probation make at least $50,000 per year.

Monthly probation fees may be just one of several fees that someone on probation has to pay regularly. As part of the conditions of their probation, an individual might have to pay court costs, one-time fees, monthly supervision fees, electronic monitoring costs, or any combination of these charges. Sometimes the law strictly defines the cost of these fees, and sometimes “reasonableness” is the only statutory guideline. Depending on the state, courts, departments of corrections, sheriffs’ departments, and the probation programs themselves can all collect revenue from these fees.

Even though the Supreme Court has said it is unconstitutional to incarcerate someone because they cannot afford to pay court ordered fines and fees, many courts effectively do just that. Judges often fail to consider the individual’s ability to pay (as opposed to their willingness to pay) and treat nonpayment of fees as a violation of probation. This flies in the face of many state statutes that allow incarceration only when there is evidence that the individual is able to pay but refuses.2 As a result, poor people on probation face a very real risk of being incarcerated because they can’t afford monthly fees. As the National Criminal Justice Debt Initiative shows, many state laws amount to “poverty penalties” and “poverty traps” and failure to pay can mean an extended probation sentence, driver’s license revocation, mandatory work program, or incarceration.

 

Unaffordable fees and low-income probation populations, select states

*In Massachusetts, the fees have two tiers, $50 for administrative and $65 for supervised probation. In Oklahoma, there are two separate monthly supervision fees, one up to $40 and another up to $20.

**Due to the small number of NSDUH respondents in Maine and South Carolina who were on probation at any time in the past 12 months, the survey does not make the necessary data available for those states as part of NSDUH’s efforts to protect respondents’ identities.

This table includes states where probation fees can cost $50 or more each month, and shows that in almost all of these states, over half (and even as many as 83%) of people on probation have annual incomes below $20,000. For them, unaffordable probation fees can lead to a cycle of poverty and incarceration. (Sources: Criminal Justice Debt Reform Builder, for probation fees, and the National Survey on Drug Use and Health: 2-Year RDAS (2016-2017) for income data on the population experiencing probation in the past 12 months.)
State Monthly supervision fee Portion of probation population
making less than $20,000 per year
Colorado Up to $50 48%
Idaho Up to $75 67%
Illinois $50 65%
Louisiana $71 to $121 69%
Maine $10 to $50 NA**
Massachusetts $50 or $65* 52%
Michigan Up to $135 67%
Mississippi $55 67%
Montana At least $50 64%
New Mexico $15 to $150 83%
North Dakota $55 77%
Ohio Up to $50 62%
Oklahoma Up to $60* 75%
South Carolina $20 to $120 NA**
Washington Up to 100 50%

 

Such high fees – and high stakes – defeat the purpose of probation. In theory, probation (often touted as an “alternative” to incarceration) allows people to continue to work and manage family responsibilities while under supervision. But people faced with unaffordable fees are more likely to violate the conditions of supervision, experience housing and food instability, and struggle to support their children. And when failure to pay is treated as a violation of probation, individuals can be incarcerated, have their probation extended, and/or lose public benefits like food stamps and supplemental security income.

Louisiana is an especially punishing state for poor people on probation. The average probation sentence there lasts three years, and probation fees are among the highest in the country, at $71 to $121 per month, even though 69% of people on probation make less than $20,000 per year. Data from a report by the state’s Justice Reinvestment Task Force shows just how unreasonable these fees are. In Louisiana in 2015:

  • While under community supervision, the average person owed $1,740 in supervision fees alone. (Supervision fees were just one type of a number of court-ordered fines and fees.)
  • On average, people under supervision could only pay about half of the imposed fees; at the end of their supervision term, the average person still owed 48% of their supervision fees.

Louisiana’s probation system creates impossible debts that unfairly burden poor probationers. As in many states, failure to pay can lead to license suspensions, extension of supervision terms, and incarceration.

Fortunately, this is slated to change. Under a new law going into effect in August 2019, Louisiana courts will hold hearings on ability to pay, and defendants may have their fees waived or reduced if the court finds that fees will cause substantial financial hardship. While the fees are still far too high, the new law offers hope for low-income people on probation. (It’s worth noting that judges, district attorneys, and court clerks whose offices benefit from the fees have fought to delay the implementation of the law.)

As long as probation sentences include unreasonable fees and harsh punishments for failure to pay them, probation will continue to punish people just for being poor. Some states have begun to implement reforms to reduce the unnecessary incarceration and other unintended consequences of their probation fee systems. But as our analysis shows, this is a widespread problem that every state imposing probation fees should address. States must acknowledge that people on probation are mostly low-income, and driving them further into poverty through monthly fees is cruel and counterproductive.

 

Footnotes

  1. Although the survey does not ask about current probation status, the recency of their probation status makes those who have been on probation in the past 12 months a reasonable proxy for the general probation population. We therefore use the term “probation population” to refer to this group in our analysis.  ↩
  2. For state statutes that allow incarceration as a response to nonpayment of supervision fees, see these results from the Criminal Justice Debt Reform Builder.  ↩

 

Appendix table: Percentage of Probation Population vs. Non-Probation Population in Each Category of Personal Annual Income (Source: NSDUH 2016-2017)

Personal Annual Income Less than $10,000 $10,000 to $19,999 $20,000 to $29,999 $30,000 to $39,000 $40,000 to $49,999 $50,000 to $74,999 $75,000 or more
On probation in the past 12 months 37.9% 27.7% 12.4% 7% 5% 6.1% 2.9%
Not on probation in the past 12 months 21.8% 17.9% 13% 10.7% 9% 12.3% 15.3%

Mack Finkel was a Research Analyst at the Prison Policy Initiative. (Other articles | Full bio | Contact)

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