Can the Government Force Poor People to Give Blood to Stay Out of Jail?

One of the most disturbing takeaways from the federal investigation into the policing practices of Ferguson, Missouri, earlier this year was that cops and judges were preying on the black population and fining them for minor infractions as a way to raise revenue for the cash-strapped municipal government. Many of the victims of this policing practice were too poor to pay the fines and would get caught in a vicious cycle—unpaid tickets would lead to further penalties, which they had no hope of paying.

Mistreatment of the poor by the criminal justice system isn't limited to Ferguson, obviously. In recent months there have been reports of people in Texas being illegally jailed for being unable to pay fines, of a Washington county running "a modern-day debtors' prison," and of for-profit probation companies making it harder for offenders to get rid of their debts to the government.

Though criminal justice reform is a hot topic at the moment, there remain plenty of abuses perpetrated by the system against the poor. And the New York Times may have found the most baroque form of punishment yet: One Alabama judge has essentially been compelling indigent offenders to give blood or else go behind bars:

As you might expect, civil liberties advocates and criminal justice experts are outraged at the idea that poor people who do not want to spend the night in jail are being forced to give blood.

"This takes it to a new level," says Jeffrey Fagan, an expert on policing and criminal justice at Columbia Law School. "You used to talk about blood money, that's what comes to mind. Soaking the poor for money is one thing, soaking the poor for blood is quite another. It's insane."

The morality of bloodletting as a punishment in modern-day America may seem pretty clear-cut, but legally it's a complicated issue. The government does have the power to do things to your body—we still have the death penalty, after all, even if many people (and a healthy chunk of the Supreme Court) think it represents cruel and unusual punishment. And if killing murderers and rapists is A-OK according to the law, why can't the government take some of your blood if you're illegally parked?

"If the judge just ordered you to give blood for a traffic violation, you could make a cruel and unusual punishment argument of some kind," Noah Feldman, a legal historian at Harvard Law School, tells VICE. "And there is some constitutional value of bodily integrity. [But] once you're convicted of a crime, your bodily integrity can be violated."

Now, there are limits to this. A judge can't inscribe a punishment on a person's body; branding someone almost certainly wouldn't pass constitutional muster. And we've come a long way from the early 20th century, when suspected criminals and other undesirables were basically treated like animals.

"As late as the 1910s and 20s, the Supreme Court upheld state laws that included forced sterilization for people deemed to be 'imbeciles,'" Feldman says. (In one signature case, Buck v. Bell, Supreme Court Justice Oliver Wendell Holmes famously wrote, "Three generations of imbeciles are enough.")

Feldman says that because the judge is offering defendants a choice—either pay a fine or donate blood—it is tricky to argue that he is flagrantly defying the Constitution. In fact, the judge, who declined to comment to the Times and faces an ethical complaint filed by the Southern Poverty Law Center, might argue he was doing these folks a favor.

"This judge may actually have been trying to take away the financial burden [of the] fine by giving people the alternative of [doing] something civic-minded," Feldman says. "That's the charitable interpretation of what he was doing." (It's worth pointing out that the Times wasn't able to actually find anyone who got $100 credit off their fine as promised by Judge Wiggins, though no one was booked into jail that day.)

On the other hand, the practice of accepting blood as a form of payment seems downright horrific, not to mention something of a slippery slope for an ostensibly modern criminal justice system. If a pint of blood is worth $100, could donating a kidney get you off the hook for a more serious crime?

"There are circumstances where the law can take over your body, but there has to a very strong government reason for it, and that doesn't seem to be the case here," Feldman says.

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