Spotlight Exclusives

October 13, 2009: Criminalizing Poverty, By Tracy Velzquez, Executive Director, Justice Policy Institute

Tracy Velzquez, Executive Director, Justice Policy Institute Tracy Velzquez, Executive Director, Justice Policy Institute, posted on

One of the early lessons in school civics is that “justice is blind”that is, all citizens get equal treatment in the eyes of the law. Unfortunately, this ideal has become an American myth. First, people living in poverty get swept into the criminal justice system more often than their better-off counterparts. Once there, they are at a real disadvantage in a court system where money can buy freedom through quality representation. And after they are incarcerated, they are relegated to poverty once again because of the punitive barriers society has set up to prevent their success.

This system is not only unfair, it۪s counterproductive to our country۪s overall well-being. Unless we as a nation take ownership of this flaw in our current system, we will continue to be the world۪s biggest jailor, with the social and economic costs that accompany that shameful moniker.

Policing the poor

Recently, I was visiting my friend Rachel, who lives and teaches in the Washington Heights neighborhood of New York City. Having started as a Teach for America participant who chose to stay on after her two-year stint, she is well connected with her predominantly Dominican neighborhood۪s assets and challenges. In commenting on her experience taking classes at Columbia۪s Teachers College on the Upper West Side, Rachel said, “You know, I finally get why people in this neighborhood end up in trouble more. Compared to down by Columbia, the cops are everywhere here in the Heights, all the time. And judging by the warnings I get from campus, it doesn۪t look like there۪s any more crime up where I live.”

Rachel had, on her own, come to see what those who advocate for low-income communities have known for a long time: America over-polices the poor. It makes sense that places with more crime would have a stronger police presence than communities with less. However, more policing in low-income areas results in more arrests and incarceration for offenses that would likely be handled informally or not at all in another neighborhood. For example, someone smoking a marijuana joint on a bench or their front porch in a more affluent neighborhood is unlikely to be observed by a police officer who would arrest them. More police can also mean more encounters with police what some might consider “hassling” which also can result in arrests that just wouldn۪t occur otherwise.

Many have asserted that a significant component of over-policing is race. For instance, between January 2006 and September 2007, “random” frisks by New York City police included 453,042 blacks and only 94,530 whites. However, with race and income so closely intertwined, it is often difficult to separate the two. And the result is still that low-income individuals are more often the target of police attention, which means more are arrested and move deeper into the criminal justice system.

“When the lawyer you choose matters most”

The above phrase shocked me as I listened to public radio on my way to work recently. It was the tagline for a law firm that was underwriting the program, and it was impossible for me not to think about it in terms of what it means for people in poverty that have been arrested.

In this day and age of complex proceedings, a multitude of laws, and serious and lasting consequences of a criminal record, the idea of not having a lawyer represent you in court seems almost unfathomable. In fact, in 1963۪s Gideon v. Wainwright, the Supreme Court stated that “reason and reflection require us to recognize that, in our adversary system of justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” However, individuals of lower income generally don۪t choose their lawyer; one is assigned by the court. Or one should be, anyway; unfortunately, over one in four people in jail charged with misdemeanor offenses reported not having been represented by counsel.

The vast majority of public defenders are qualified, dedicated attorneys, but many work in conditions they describe as “assembly line justice.” Small budgets which are now shrinking during this economic downturn mean many public defenders have barely met their client before they have to go into court and defend them. Of people in prison with court-appointed counsel, only 37 percent in state facilities and 54 percent in federal facilities spoke with their attorneys within the first week after arrest. In contrast, of people with hired counsel, three in five in state facilities and three-fourths in federal facilities had been in contact with their attorneys about their charges within a week of arrest. In an effort to manage their caseloads, public defenders are under pressure to resolve cases quickly, with little time to investigate leads that might have resulted in the case being dismissed or the charges lessened.

What is the result? State defendants with a public defender are sentenced to prison or jail more often than those with private attorneys. People who can afford a private attorney are less likely to go to state prison.

In addition, about half of individuals using a public defender or assigned counsel were released from jail prior to trial, compared to over three in four with a private attorney. Part of this may be a result of differences in representation; it is likely also because people who use public defenders are generally the same people who can۪t afford to post bond. With courts demanding higher bail amounts, fewer and fewer people are able to post bond and be released from jail while awaiting trial. Currently, more than 60 percent of people in jails across the country have not been convicted of any offense. The inability to post bond not only makes it harder for people accused of crimes to meet with their lawyer and talk to people who might be able to aid in their defense, it also makes it harder to hold down their job and maintain custody of their childreneven though they are still considered innocent.

Substituting corrections for treatment

Adult and juvenile correctional facilities are now among the country۪s largest providers of mental health care: this is true both in large, urban areas (the Los Angeles County Jail is now the largest mental health facility in the country) and smaller, more rural ones (the largest provider of mental health care in Alabama is the prison). A key driver of this is lack of access to community mental health services. According to the Kaiser Family Foundation, over a third of the poor and 30 percent of the near-poor (incomes ranging from the poverty line to twice the poverty line) lack health coverage. And according to the National Survey of Drug Use and Mental Health, 42 percent of those who needed mental health treatment but didn۪t get it said the primary reason was that they couldn۪t afford it.Underinsurance is also a problem: 34 percent of insuredpeople who had unmet mental health needs indicated that cost was a barrier to seeking treatment.

The manifestations of untreated mental illness often lead to behaviors that draw the attention of policepublic order offenses that often accompany homelessness, crises that cause law enforcement to intervene, and “self-medicating” with alcohol and illegal drugs. According to the U.S. Department of Justice, nearly a quarter of the people in state prisons experienced mental health issues in the year preceding incarceration, and nearly two-thirds of people in jails live with mental illness. Some parents of children with serious emotional disturbances who are uninsured or underinsured turn their own children over to the police, in an effort to get at least minimum treatment through the juvenile justice system.

People with no access to health care are also likely to return to prison after being released. In a visit I made to a state prison, an individual with a serious mental illness told me that earlier that year he had been released from prison with 10 days worth of medicine and $100 in cash. He was left on his own to figure out how to manage his illness. He relied on a local clinic for pharmaceutical “samples” for a time, but ended up homeless and self-medicating with alcohol and other drugs. This eventually led to his being re-incarcerated.

A large percentage of incarcerated people also have a substance abuse disorder. Over half of people in state prisons meet the criteria for drug dependence or abuse. Once again, low-income people with a substance abuse addiction are disproportionately incarcerated as they cannot access treatment. The National Survey on Drug Use and Health indicated that 37.4 percent of people who sought substance abuse treatment indicated they didn۪t receive it because they had no health coverage and couldn۪t afford the cost of treatment. This lack of access, combined with the criminalization of addiction, mean thousands of people end up in prison or jail for drug possession or distribution or other offenses that would support an addiction.

Continuing barriers to opportunity

Currently, one in 31 people in the United States is under correctional supervisionwhether in prison or jail, or on parole or probation. And millions more have a felony record that will never be erased, creating hardships for those trying to regain their lives and be a productive member of their community.

Adding to these difficulties is the fact that the correctional population is already largely made up of lower-income people. According to the U.S. Bureau of Justice Statistics, in 2002, eighty-three percent of people in jail reported income of less than $2,000 in the month prior to arrest, one-third lower than the average monthly wage of the general public.

Many people who have been incarcerated face obstacles when attempting to find a job and housing. In a report for the Brookings Institution, Richard Freedman found that jail time reduced the probability of employment by between 15 and 30 percentage points. In addition, people leaving prison, regardless of their pre-incarceration status, are especially vulnerable to homelessness, often banned from federal housing, face challenges reconnecting with family and friends, and lack the funds to afford available housing. Often, the obligations of parole fees and years of child support that went unpaid during their period of incarceration make it almost impossible to become economically successful.


The impact of the criminal justice system on low-income communities can۪t be ignored. At every stage of the process from who is arrested to who is convicted and who eventually loses out on their rights the poor are disproportionately affected. Policymakers continue to incarcerate millions of people, most of whom would not be in the system if there were more adequate resources in their communities. How can this situation be addressed, so that poverty and prison aren۪t inevitably intertwined?

The U.S. should provide meaningful access regardless of ability to pay — to community-based treatment that would ensure that people get the mental health and substance abuse treatment they need before they collide with the justice system; this would improve both public safety and individual life outcomes. A healthcare “safety net” that will cover formerly incarcerated individuals also will save states millions in reduced rates of recidivism and re-incarceration.

Instead of overfunding incarceration and policing, we should make investments in resources for low-income communities that are already at a disadvantage due to their socioeconomic status. This means better schools, more job development, and more programs that can help people and particularly youth succeed. These types of investments will create healthier, safer communities and reduce the use of prisons as an answer to poverty and other social problems.

Tracy Velzquez is Executive Director of the Justice Policy Institute, a nonprofit working to promote effective solutions to social problems and dedicated to ending society۪s reliance on incarceration

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