By  Beth Colgan and Jordan B. Wood

This Article provides a comprehensive statewide study of a practice by which courts order defendants to pay financial sanctions—fines, costs, and probation fees—by serving terms of incarceration. Though several states authorize these practices, to date, very little is known about the extent to which payment via incarceration occurs and the different ways it is employed. This Article examines the use of the practice in Nebraska, where it is colloquially referred to as “sitting out.” Our study specifically focuses on all misdemeanor cases in Nebraska county courts with judgments (an adjudication of guilt and/or sentencing) during the year 2019.

This study examines the ways in which payment via incarceration is consistent with and diverges from the archetypal “modern debtors’ prison,” in which penalties related to the nonpayment of fines are widespread, imposed against people of limited means and particularly people of color, and which carry the risk that the inherent revenue-generating qualities of financial sanctions will pervert crime policy.

We find that Nebraska’s practices are consistent with that archetype in that payment via incarceration is deeply integrated into the jurisdiction’s legal systems as evident through its widespread use. We discover that courts ordered 10,027 defendants to pay financial sanctions via incarceration in over a quarter of all misdemeanor cases in our dataset, an alarmingly high rate. Those defendants also sat out a notably high amount of financial debt—$2,105,462 in the aggregate. At $150 per day (the rate at which Nebraska credits incarceration against financial debt), the defendants in our study spent a minimum of 14,036 days in Nebraska county jails to pay off fines, costs, and probation fees.

The results of the study are also consistent with a second archetype— that in modern debtors’ prisons, people of limited means, and particularly people of color, are subjected to financial sanctions they have no meaningful ability to pay and punished for their poverty when payment is not forthcoming. Our findings illustrate that many defendants who were subjected to sitting out were convicted for offenses frequently linked to poverty and many were declared indigent by the court for the purposes of appointing counsel. Further, the cases in our database exhibit troubling racial disparities.

Other findings, however, complicate the narrative surrounding modern debtors’ prisons, especially with regard to revenue-generation incentives of government actors. On its face, sitting out appears to undermine the idea that government actors are motivated by revenue generation. Unlike systems in which the debt remains outstanding, when a defendant is ordered to sit out financial sanctions, the debt is paid off by the incarceration. This ensures that revenues are never secured, while leaving the jurisdiction to bear the expense of incarceration. To investigate this issue and track how money moves into and out of government coffers when sitting out is employed, we create an original typology of the various forms of payment via incarceration useful for studying Nebraska’s system and those in other jurisdictions. What we find is geographic diversity in the mechanisms for sitting out that carry different fiscal implications.

After presenting the study’s results, we conclude by discussing the key takeaways of our research, its limitations, and several law and policy implications that open potential avenues for future research.

By Brian Elderbroom, Peter Mayer, and Felicity Rose

Key Findings:

• Families with an immediate family member incarcerated spend an average of $4,195 annually to maintain contact and provide support; spouses/co-parents spend the most ($6,225 annually), followed by adult children ($5,470 annually).

• Families spend a total of $5.6 billion annually on commissary deposits, prison accounts, and other direct support for basic necessities and other items their family members might need.

  • Black family members spend $280 per month on direct support compared to $152 per month for white family members.

• On an annual basis, Black family members spend 2.5 times more ($8,005) than white family members ($3,251). 

  • Hispanic family members spend an average of $6,367 annually, and Native American family members spend an average of $6,464 annually.

This mixed-methods report quantifies the financial costs incurred by families when a loved one is incarcerated. Drawing on a nationally representative survey of adults with an immediate family member incarcerated for at least three months, supplemented by focus groups, the study documents both direct out-of-pocket spending and longer-term financial impacts. The central finding is that families pay large, recurring costs to maintain contact and provide for incarcerated loved ones, and they suffer persistent income losses that compound intergenerationally. The authors estimate that families collectively bear an annual financial burden of $348 billion. These costs are not distributed evenly: Black, Hispanic, Native American, and low-income families shoulder a disproportionate share, devoting more of their household resources to supporting incarcerated relatives. All in all, the findings highlight the far-reaching consequences of incarceration on family financial stability and intergenerational economic opportunities.

By Enrico Nichelatti and Adnan Abdulaziz Shahir

Trade mis-invoicing represents a significant economic challenge in Ghana, with losses estimated at 3.03 per cent of gross domestic product in 2018. We examine the potential of a universal child benefit in Ghana through a counterfactual taxation of illicit financial flows. Using microsimulation, we model two budget-neutral designs: a flat per-child transfer and a quasi-universal schedule with higher amounts for larger households. Both options lower poverty and inequality, with stronger effects in rural areas and among larger households. The universal design yields slightly greater overall poverty reduction: the quasi-universal variant better protects large families. Although such revenues cover only a limited share of the poverty gap, redirecting them can expand social protection without raising distortionary taxes. The study links tax justice to social policy expansion and questions claims that universal benefits are unaffordable in low- and lower-middle-income countries. The study assesses only first-round effects and does not address political feasibility.

By Allan Castle, Hayli Millar, Yvon Dandurand, Vivienne Chin, Shawn Bayes, Megan Capp, Richard Fowler, Jessica Jahn and Barbara Pickering.

What happens to children whose parents are incarcerated, remanded, or otherwise subject to the criminal justice system? Too often, the answer is: pain and distress due to separation from a parent, stigmatization, poor performance in school, social withdrawal, impoverishment, diminished life chances, health problems, and increased likelihood of the child themselves being incarcerated in adulthood. That these harms to children are unintended ‘collateral’ effects of justice decisions is immaterial. The effects are similar to those of many other more direct, adverse experiences a child may encounter. The adult criminal justice system in Canada is of course not alone in creating harmful outcomes for children, today or historically. For more than 150 years, the residential school system h caused devastating intergenerational harm to generations of Indigenous families. Provincial child welfare systems continue to be a focus of reform and devolution due to the harmful effects of past and current practices. In identifying the harms caused by institutions and systems, we must point out that harm to children is not only systemic in origin. Parental abuse or neglect driven by substance use, trauma or mental illness is common, even though many of those individual behaviours may in turn have systemic origins. Whether the harms experienced by children have systemic or individual causes, we now understand that many different actors and sectors must collaborate to protect children, as systemic and individual harms routinely overlap and multiply the damage done. For example, the trauma and loss of belonging associated with being removed from parental care due to parental incarceration may be expressed by self-harm or behavioral acting out at school. The disruption of parental incarceration can impede the delivery of routine health care, such as vaccinations. Child homelessness brings greater exposure toexploitation. Considering these overlaps, it is insufficient to act in isolation. Child advocates, Indigenous Nations and communities, non-profit services, child welfare and health authorities, educators and other systems – including the adult criminal justice system – all have a role to play in collaborating to protect children, prevent their stigmatization, and support their healthy development. The subject of this paper – the substantial impact of adult criminal justice system decisions on the dependent children of those coming before the system – has to date received little consideration by the system itself, whether in terms of research, case law, legislation, or legal principles. Moreover, there is no consensus within the system itself as to the degree of responsibility the system itself should bear in mitigating these harms. One recent superior court decision suggested that while lamentable, such child impact should be understood as an unavoidable consequence of serious criminality.