The Department of Justice recently reminded state chief justices and state court administrators that jailing poor people just because they can’t pay fines is unconstitutional.
In a March 14 Dear Colleague letter, the Civil Rights Division warned states to ensure their local courts reform or refrain from practices resulting in the jailing of residents who can’t afford to pay fines and fees for minor crimes. The letter is just one part of efforts by DOJ’s Civil Rights Division to address what amounts to a shakedown of the impoverished by means of the legal system. It implicitly targets debtors’ prisons, predatory private probation companies, and unconstitutional money bail systems that penalize the poor for their poverty and disproportionately affect African Americans.
Such practices exist throughout the U.S., from Georgia to Tennessee to Ohio to Colorado. Their ubiquity has been made obvious by a flurry of recent lawsuits from organizations including Equal Justice Under Law, the American Civil Liberties Union, the Southern Center for Human Rights, and the Southern Poverty Law Center.
These profit-focused legal systems criminalize poverty by allowing wealthier offenders and defendants to pay for better treatment while jailing and otherwise keeping the poor ensnared in a state-sponsored debt trap for years for offenses as minor as driving on a suspended license. They also help keep the poor impoverished by making it harder to drive (for example, by revoking licenses) and to keep a job (through repeated jailing and demands for court appearances).
Where poor defendants charged with minor crimes may be jailed — sometimes for weeks or longer — before ever seeing a judge who can make an inquiry into their indigence, defendants who can afford it may post a bond and go home. Where indigent defendants who can’t pay upfront fines may be placed on supervised private probation and face escalating fees, threats of detention, and extension of their probation for their failure to pay, those who can afford it may simply pay an upfront fine in court and enjoy unsupervised probation. These schemes — which help fund local governments — mean that in addition to being subjected to harsher treatment and often serving time in jail for minor offenses, the poor may end up paying more in fines and fees than their wealthier counterparts when all is said and done.
The DOJ’s efforts come in the wake of the Civil Rights Division’s Investigation of the Ferguson Police Department released last year. The report on Ferguson’s court system was damning, suggesting the city “primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests” — rather than serving its purported function of addressing threats to public safety. Ferguson’s municipal court, the report found, regularly issued arrest warrants for those unable to pay, effectively jailing its own residents for their poverty.
The report concluded that Ferguson’s legal system “violate[s] the Fourteenth Amendment’s due process and equal protection requirements. The court’s practices also impose unnecessary harm, overwhelmingly on African-American individuals, and run counter to public safety.” By promoting changes to local legal systems nationwide, DOJ is acknowledging that Ferguson is far from an anomaly.
To help address the pervasive problem, DOJ’s Dear Colleague letter dispenses seven reminders remarkable mostly for their banality. It tells local courts they must 1) inquire into a person’s ability to pay before jailing them for failing to do so; 2) consider alternatives to jailing for those unable to pay fines and fees; 3) not condition access to the courts on the payment of fines and fees; 4) provide “meaningful” notice and in some cases counsel when enforcing fines and fees; 5) not use warrants or license suspensions to coerce the payment of court debt; 6) not use bail or bond practices that result in incarceration of those unable to pay; and 7) in perhaps DOJ’s most basic exhortation, take steps to ensure court staff and private contractors aren’t engaging in unconstitutional practices.
The letter serves as a reminder — and, perhaps, a warning — to local court systems: jailing the impoverished for their poverty is a violation of their rights.