By Komala Ramachandra

A new report by the American Bar Association (ABA) shows how growing privatization in the US criminal legal system and the financial burden created by “user fees” is effectively criminalizing poverty.

The report, “Privatization of Services in the Criminal Justice System,” finds that private companies are now involved in almost every stage of the criminal process. These companies provide pretrial services, like bail, supervision, electronic monitoring, and alcohol and drug testing. Courts may also offer private diversion programs that allow people to avoid a criminal record upon successful completion. After a person is convicted or accepts a plea deal, they can be assigned to private community supervision or probation.

Almost all of these services entail “user fees” often set by and paid directly to the private provider, with little government oversight. Even collection of these charges may carry additional fees or commissions for the collection agencies, again paid by the individual. Human Rights Watch has documented the pernicious impact of cash bail and private probation, particularly on those living in poverty.

People can also rack up charges while incarcerated, including charges for health care, basic supplies in the commissary, telephones or electronic communication, and financial services like money transfers.

The system can be expensive for anyone but is particularly harmful for low-income people. When an individual is unable to pay, they may face a range of consequences, including extended supervision terms, arrest warrants, additional court hearings, and even jail or prison time. That can mean even more fines and fees because it takes longer to pay them off. This effectively creates a two-tiered justice system that privileges those who can afford to pay fines and fees quickly, and traps those who cannot. It also means low-income people may pay more for the same offense.

This report follows on the ABA’s “Ten Guidelines on Court Fines and Fees,” which provided recommendations to court officials to prevent fines and fees being used to penalize people who are unable to pay their court debt.

The ABA’s recommendations include increasing transparency, regulation, and supervision of private companies, and significantly reducing the use of fines and user fees. Crucially, judges should always assess an individual’s ability to pay and waive costs when they cannot afford them.