On my flight today, I watched Spring Breakers,
Harmony Kormine’s 2012 film of four young women on a raucous trip that descends
into crime and violence. A third of the way through the movie, the police bust
a party, and the women find themselves bikini-clad in front of a judge. The
judge tells them, “You’re not going to be charged with narcotics possession
because it wasn’t found on your actual person. You will be issued citations,
and you’re going to have to pay those fines or you’re going to have to do two
more days in county.” Our protagonists protest: “We don’t have any money.” The
judge replies, “Call mommy and daddy or do the time.”
The state has not convicted the women
of a crime—it has not even charged them with one. Instead, the court has
imposed a fine, and ordered that if the women fail to pay it they must serve a
jail sentence instead. The court expresses disinterest in whether they can
afford to pay the fine, meaning that whether or not they are incarcerated turns
entirely on if they have the resources to pay up to the state.
Sound like the type of thing that
might violate the constitution? It does. The Supreme Court has ruled that
courts cannot convert the unpaid fines of an indigent person into a jail
sentence and that courts
may not revoke probation for an individual’s failure to pay a fine if he or
she cannot afford it.
The
scene grabbed my attention not because the scene is unrealistic; a paragon of
realism, Spring Breakers is not. Instead, the scene piqued my interest because
pay-or-stay sentencing may be unconstitutional, but it is nonetheless a
widespread although mostly unexamined phenomenon.
An
amicus
brief the ACLU and the Brennan Center filed just two weeks ago details how
hundreds of defendants in Michigan have received pay-or-stay sentences despite
being too poor to meet their legal financial obligations. In one case the brief
mentions, a nineteen-year-old received a ticket for fishing out of season; he
was unable to pay the 215 dollars immediately, so the judge sentenced him to a
jail sentence instead.
Pay-or-stay sentences create a
two-tiered justice system where only the poor go to jail, but they’re lousy
policy too. Jail sentences only make it more difficult for the poor to be able
to pay back their debts, as jail terms disrupt employment and stigmatize the
debtors. They also, of course, force the state to incur more costs by
incarcerating more people.
Despite
this troublesome trend, the legal academy hasn’t had much to say about
pay-or-stay sentencing. Perhaps the very fact that it flagrantly flouts clearly
established law is to explain for this absence; pay-or-stay may be happening,
but it is too obviously unconstitutional to be worthy of an interesting
article. The dearth off attention from academia and mainstream media makes it
all the more surprising to see the practice popping up in film.
A
moment after the court scene, a jail guard enters the women’s cell and tells
them “Somebody loves y’all. You’re free to go. You just made bail.” It is here,
tragically, that Spring Breakers loses its way in hyper-realistically
portraying low-level criminal court proceedings. Made bail on what? They
haven’t been charged with a crime.
The
women leave the jail, inexplicably via a garage door, and find James Franco
with braids and a grill waiting for them. He tells them, “I saw y’all in there.
You looked like nice people. Thought maybe I’d bail you out. Everyone could use
a little bailing out once in a while.” So it appears that pay-or-stay’s cameo
was an accident, a fumbling in the script. Or at the very least, “Everyone
could use a little help fulfilling their legal financial obligations so to
avoid unconstitutional incarceration” doesn’t sound as good rolling off James
Franco’s tongue. Too bad.
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