'Never-ending' court debt cause of Missouri imprisonment, according to new Tony Messenger book

In America, you are not supposed to go to jail just because you are poor. But St. Louis Post-Dispatch columnist Tony Messenger found that is happening all the time in Missouri and in the rest of the country. 

In his new book, “Profit and Punishment: How America Criminalizes the Poor in the Name of Justice,” Messenger lays out how America criminalizes the poor through never-ending court fees. The former News-Leader columnist used his Pulitzer-prize winning columns on the topic as the basis for the book. 

One of the main characters in his columns and book is Brooke Bergen, who was arrested several years ago in Dent County for shoplifting an $8 tube of mascara.  

By the time she served a year for the misdemeanor, she owed the court $15,000 for her stay in jail. That’s because nearly every municipality in Missouri charges inmates daily for their stay in jail on top of the other fees and fines they may owe. 

“Inmates get out of jail but then the whammy hits,” said Messenger at a book signing in Springfield. “They get the bill for their jail time. And this is the part that’s just so super offensive, and it was happening all over Missouri — happens all over the country, frankly, is that somebody like Brooke would do her time and should be done with the judicial system, right? But she isn’t done. She still owes $15,000 and if she doesn’t pay, she’s going back to jail.” 

Despite debtors' prisons being outlawed in 1833, these board bills are allowed to be collected by counties and municipalities in every state except New Hampshire, which only did away with it in 2019. In Missouri, board bills are commonplace except for the state’s metro areas, like Greene County. 

From the late 1600s to the early 1800s, many municipalities in the United States operated explicit debtors’ prisons. These were brick-and-mortar facilities exclusively used to jail those behind on their debts. Since debtors were not allowed to go free until paying off the money they owed, inmates often languished in the prisons for the rest of their lives. 

Congress outlawed these facilities in 1833 and the Supreme Court reaffirmed the ban in 1983 — stating judges must conduct an “ability to pay” hearing before requiring defendants to pay the debts they owe. 

But the loophole around this ban is the debt for which defendants are being imprisoned is not debt that they have accrued through some private loan, it is debt they have accumulated through their involvement in the criminal justice system itself. Inmates in Missouri county jails may be charged about $35 to $50 a day, according to Messenger, and the court may incarcerate those who cannot pay those debts. 

To enforce this system, courts have often turned to private for-profit probation companies to oversee parolees who may owe debts to the court. In Missouri, only felons get state-employed probation officers — misdemeanor offenders all get these private officers. 

According to Messenger, these all point to some of the aftereffects of the era of mass incarceration that dominated the second half of the 20th century. As more and more offenders were jailed, courts needed new ways to raise money and cut costs.  

“If I were the king of the world, I'd get rid of board bills entirely. I think it's a horribly inefficient and unfair way to pay for jail and to punish people primarily after they've already served their time,” Messenger said. 

“I think taxpayers generally have an understanding that jails are part of the public safety infrastructure and should be paid for through our general tax base. But board bills exist. They exist not because it helps public safety or because it's a deterrent, they exist because legislatures have decided that the courts are a good way to raise money for various parts of government.” 

'Law Day' in Dent County

While promoting his book, Messenger recalled going to a "Law Day" in a Dent County Court with Bergen. He explained these are days in which all those who owe court debts come to pay a “substantial amount” of their debt. If they do not pay whatever the judge decides is a substantial amount, they are imprisoned, which will often increase the debt they owe. 

That day, Bergen merely had in her pocket $60, which she hoped would be considered a "substantial amount" of her $15,000 debt. 

“Is that substantial?” Messenger quoted Bergen as asking him. “I kind of feel like maybe three figures is substantial. Maybe if I get up to $100, I won't go to jail tomorrow.” 

At the Law Day, Messenger was initially barred from entering because he had not cleared his attendance with the judge ahead of time. Neither reporters nor members of the public need such permission to attend court, merely if they want to take pictures of the proceedings. 

“'Go talk to the judge and let her know that if she doesn't let me, I'm going to call an attorney and we're going to file a writ to get me into court today.’ So, the marshal goes back in, and I stand there and I'm like, ‘they're gonna put me in frickin’ jail.’” 

Messenger did not go to jail that day and was eventually let inside the courtroom. There he saw a long line of defendants and a private probation officer sitting next to the prosecutor. 

“This is not a publicly elected official. This is not a court official. This is a private business that has a contract with the court but is not a public official. And she's standing up there with the prosecutor. And basically, with every case the judge is looking at her and waiting for a thumbs up or a thumbs down as to whether she’s putting this person in jail today,” Messenger said. 

That day, Bergen’s $100 payment was enough to keep her out of jail, but Messenger added she still has not paid off her debt and is currently imprisoned on unrelated charges. 

Why Messenger cares about court debt

Asked why he had taken up this cause, Messenger said it could have easily been him who was arrested for a misdemeanor and then watched his life slip away from him over ever-accumulating court debt. 

He recalled being pulled over several years ago for his car’s expired tags. Messenger was not worried until a second police car parked behind him. A few minutes later, Messenger was arrested. 

Apparently, he had forgotten to pay for a speeding ticket from a nearby town and had a warrant out for his arrest. 

“I'm kind of a forgetful person. I do these things,” Messenger conceded. “So, I had expired tags. I didn't pay for a speeding ticket. She says she’s gonna take me into police station and get me fingerprinted and booked.” 

Then, she asked if Messenger had any money on him. He had $80 in his wallet, and so that was the amount at which his bond was set. 

“She says, ‘after we process you, you can go.’ And nothing bad happened to me that day,” Messenger said. If he didn’t have that $80, Messenger thinks that day could have changed his life. 

“Bad things easily could have happened. If I were a poor black person living in north St. Louis County, in that same circumstance, I probably would have ended up in jail that night. And if I were a poor white person living in rural Missouri, I probably would have ended up in jail that night. I would have lost access to my children, and I would have lost my car and I might have lost an apartment or job and everything.” 

“All those sorts of consequences happen to poor people on a regular basis in our court system without much concern for what happens to them. It’s simply because you didn't pay your speeding ticket, you’re going to jail. That's just not right. And people need to know that the system treats different people differently based on both the color of their skin and how much money they happen to have in their pocket.” 

2019 Supreme Court ruling

In 2019, the Missouri Supreme Court unanimously ruled that defendants cannot be threatened with jail time merely because they cannot afford to pay their debts to the court, their “board bill.” 

But Messenger said they did not go as far as he would have liked. 

“They didn't get rid of board bills. They didn't say it was unconstitutional. They left it open for the legislature to change the law and somehow make it legal. But you can’t threaten anybody with jail time for that anymore. That’s progress.” 

Messenger admitted he is still concerned the Missouri state legislature will reinstate the previous status quo or add more onerous fees to inmates in Missouri jails. 

For example, the legislature several years ago passed a $3 fee to the incarcerated, which helped pay for county sheriffs’ retirement. That fee was also later ruled unconstitutional by the Missouri Supreme Court. 

“Yet some of these folks (in the legislature) year after year they vote to say you can send people back to jail because they can't afford their board bill,” he said. 

Messenger encouraged those at his book signing to advocate in the state legislature on this issue. 

“Talk to your lawmakers about making sure that they don't add charges, fees to the court system. I mean, I'd love to see our legislature actually start to remove some of these fees. But that's one of the places you can have an influence. Our legislature is very overwhelmingly rural white Republican. But this should be a bipartisan issue. It should be an easy thing for everyone to get,” Messenger said.

As of this week, "Profit and Punishment" by Tony Messenger is available to be purchased.