There was a time in living memory when the official policy of the U.S. government was to fight a war on poverty. Pres. Lyndon B. Johnson announced that policy in his first State of the Union message on January 8, 1964, a scant seven weeks after the assassination of Pres. John F. Kennedy. Connecting his agenda to that of the slain president, Johnson announced an “all-out” war on poverty.1 The speech’s analysis of poverty and the policy prescriptions to end poverty closely linked economic need with racial inequity. In fact, the speech also announced Johnson’s intent to pass seminal civil rights legislation.
In the section of the speech announcing the War on Poverty, Johnson said:
"This budget, and this year's legislative program, are designed to help each and every American citizen fulfill his basic hopes—his hopes for a fair chance to make good; his hopes for fair play from the law; his hopes for a full-time job on full-time pay; his hopes for a decent home for his family in a decent community; his hopes for a good school for his children with good teachers; and his hopes for security when faced with sickness or unemployment or old age.
"Unfortunately, many Americans live on the outskirts of hope—some because of their poverty, and some because of their color, and all too many because of both. Our task is to help replace their despair with opportunity….
"Very often a lack of jobs and money is not the cause of poverty, but the symptom. The cause may lie deeper in our failure to give our fellow citizens a fair chance to develop their own capacities … [and] in a lack of decent communities in which to live and bring up their children."2
Having linked poverty and its amelioration to “fair play from the law,” “decent communities,” “a fair chance,” and the role of racial inequity, Johnson moved on to his additional explicit call for enactment of civil rights laws:
"All of these increased opportunities—in employment, in education, in housing, and in every field—must be open to Americans of every color. As far as the writ of Federal law will run, we must abolish not some, but all racial discrimination. For this is not merely an economic issue, or a social, political, or international issue. It is a moral issue, and it must be met by the passage this session of [civil rights legislation]."3
The speech was the forerunner of legislation and other government actions undertaken that year and in successive years a half century ago (including the creation of government-funded legal services for the poor).4 The initiatives of the War on Poverty and related programs produced a precipitous decline in the poverty rate from 22 percent in the late 1950s to 11 percent in the early 1970s.5 But poverty remains a stubborn feature of American life. Government programs keep it from being much worse, but, with various ebbs and flows, the rate has settled in at 13 percent to 15 percent in recent years.6 And, in spite of laws guaranteeing civil rights, the most salient feature of American poverty remains race. People of Latin American heritage are twice as likely as non–Hispanic Whites to experience poverty. African Americans are three times more likely than Whites to experience poverty.7
In spite of laws guaranteeing civil rights, the most salient feature of American poverty remains race.
Peter Edelman’s new book, Not a Crime to Be Poor: The Criminalization of Poverty in America, offers powerful evidence and explanation that a big part of this phenomenon is the product of state and local policies and practices that criminalize poverty, punish it, exploit it for money, and do this particularly with respect to people of color, making them poorer and blocking them from opportunities for upward mobility.8 Far from the “fair play from the law,” the creation of “decent communities” for raising families, and the guarantee of a “fair chance” identified over 50 years ago as key components of a national War on Poverty, these policies and practices do worse than fail: they actively promote and perpetuate poverty and racial inequity.
Edelman starts the book with a description of the issue of “fines and fees.”9 This issue is widespread in America, but it was exposed and made famous by the investigations after the civil unrest in Ferguson, Missouri, that followed the police shooting of Michael Brown.10 Edelman shows how this issue resulted from an inexorable cascade of dominoes, starting with the ideologically driven movement to cut taxes. The tax-cut proponents promise voters that they can have it both ways: they can pay lower taxes but somehow vital government services will magically continue. In fact, local police and courts are starved of funds and must find ways to pay their own way. The police thus have quotas for traffic stops. Legislatures increase fines for minor offenses, such as rolling through a stop sign. People who cannot pay the fines are detained in the local jail—a virtual debtors’ prison. The fines are magnified by fees of many kinds: for overnight accommodations in the jail, for meals, for local public facilities, for the costs of the court proceedings by which the accused was found guilty—and, yes, in many areas, for the services of a public defender, supposedly free to criminal defendants since Gideon v. Wainwright.11 Then another fee is added by the private enterprises hired to collect the fines and fees. People originally detained for a minor offense end up owing thousands of dollars and spending months incarcerated (which continues to add to what they owe) and out of work.
People who cannot pay the fines are detained in the local jail—a virtual debtors’ prison.
Many of us who are white and middle-class have stories of slipping past police who do not stop us for the “oops” of a rolling stop at a stop sign, or of being stopped but allowed to drive on in spite of expired license tags (“make sure you take care of that tomorrow”). None of us relishes these brushes with the law or regrets getting off the hook, but few of us understand that this is one of those everyday instances of white privilege. The insidious regime described above is overwhelmingly applied to people of color, who are stopped routinely and not let off the hook, but who are also many times less likely to be able simply to pay a fine, never mind the escalating piling on of fees. Who gets stopped and who gets let go are matters at the mercy of the overt or subliminal biases of the individual police, driven also by imperatives that they have to raise the funds that pay their salaries and those of their bosses and colleagues in the system.12 And much of it is not so subliminal. Edelman describes, for example, how traffic traps in some towns are set up only in African American neighborhoods.13
The book is not just about fines and fees. It is about a much broader regime of persecuting—“criminalizing”—people in poverty. Edelman tells similar stories about a dizzying array of schemes:
-- fee-for-service probation rackets (yet another “fee” that keeps going up but is the price of staying out of jail),14
-- the cash bail system (“pay or stay”),15
-- driver’s license suspensions (how, then, does one get to work to pay the tab?),16
-- criminalization of mental illness by, among other ways, arresting the homeless while defunding homeless services and community mental health capacity,17
-- incarceration for nonpayment of child support by indigent noncustodial parents,18
-- punitive public benefits policies denying benefits to eligible people for supposed “program violations” to adapt to reduced budget allocations,19
-- denial of housing and employment to people with minor or ancient criminal records or (believe it or not) evicting victims of crime for calling the police,20
-- sending school behavior or truancy problems to the juvenile or even the adult criminal justice system,21
and much more. Edelman does an immense service by collecting all of this information and treating it as a big-picture whole. He is not wrong to call the whole regime the criminalization of poverty. And he is not wrong to say that it is heavily about race.
But the book is much more than an exposure and indictment of outrageous systems. Edelman calls out positive efforts by lawyers, advocates, and reforming politicians and officials. They have brought successful lawsuits, introduced bold new ideas, and implemented effective programs. Edelman’s focus on solutions is a tremendous service, a litany of best practices and ideas that show the way for action across the country to block and dismantle some of these egregious policies and systems (and, yes, many of the worst regimes are in decidedly “blue” states—the criminalization of poverty is everywhere). One wonderful example is the decisive litigation work by ArchCity Defenders, Equal Justice Under Law, and pro bono partners in Ferguson and other St. Louis suburbs.22 Edelman profiles similar work in the context of all of the systems in need of reform.
He is not wrong to call the whole regime the criminalization of poverty. And he is not wrong to say that it is heavily about race.
Moreover, Edelman devotes the entire last third of the book to a description of exemplary efforts for positive reform of the criminal justice system and for poverty alleviation. The efforts are all rooted in communities and populated and led by remarkable people from those communities who have experienced the multiple issues that create and perpetuate poverty. These examples recall the principles for fighting poverty espoused by President Johnson and Sargent Shriver, his lead implementer of the War on Poverty: that the solution would not be handouts but a set of tools to help people in poverty and their communities to navigate their own ideas and paths to upward mobility.23 Among the most important tools in that toolbox are the laws that guarantee race equity and the lawyers to help enforce those laws, whether or not the government itself is vigorous in enforcing them—a matter of substantial doubt in the Trump administration.
Johnson was right when he maintained in that State of the Union speech that a successful War on Poverty must be based on programs that create opportunity and decent communities, policies that ensure fairness and their enforcement, and empowerment of people to have a fair chance to develop their own capacities. Edelman’s book summarizes a regime of policies and practices that undermine those principles and work to create and perpetuate poverty and racial disadvantage. It goes a long way toward explaining the persistent racial imbalance in the experience of poverty. But it also points the way forward, consisting of vigorous work to dismantle these corrupt and counterproductive systems and positive work to ensure fair opportunities for upward mobility and decent communities.Download this article