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But one reform advocate notes: “Unless the DOJ actually sues some of these places, I don’t think we’re going to see a significant change in the practices on the ground.”
With fee and fine practices in local courts around the nation facing scrutiny for disproportionately landing poor people in jail and debt, the U.S. Department of Justice on Monday sought to clarify when these types of financial penalties and charges threaten to run afoul of the Constitution.
In a letter sent to state chief justices and state court administrators throughout the country, Vanita Gupta, who leads the Justice Department’s Civil Rights Division, and Lisa Foster, director of the Office for Access to Justice, laid out a set of constitutional principles meant to guide fine and fee systems that cover minor infractions, such as traffic violations or jaywalking.
Among the recommendations in the letter was that courts should not send people to jail for failing to pay fines or fees without first establishing they did so willfully, as opposed to out of financial necessity. Another guideline said courts should consider alternatives to incarceration for defendants who are unable to pay penalties, such as community service or traffic safety classes.
“The consequences of the criminalization of poverty are not only harmful—they are far-reaching,” Attorney General Loretta Lynch said in a statement issued on Monday along with the letter. “They not only affect an individual’s ability to support their family, but also contribute to an erosion of our faith in government.”
While the new guidelines were generally well-received by reform advocates, some believe it will take more to spur the most recalcitrant jurisdictions toward changing their practices.
Brendan Roediger is a law professor at the Saint Louis University School of Law, where he supervises a civil litigation clinic, which focuses on court-reform, racial justice, and the legal representation of low-income people in the St. Louis region.
“Unless the DOJ actually sues some of these places,” he said, “I don’t think we’re going to see a significant change in the practices on the ground.”
A Justice Department report following that incident, issued in March last year, painted Ferguson’s criminal justice system, including its courts, as focused heavily on harvesting money for the city, while inflicting unnecessary harm on residents—especially African Americans.
Ferguson is not alone in facing criticism. In addition to similar legal actions taken by others, the American Civil Liberties Union has filed lawsuits in Michigan, Mississippi, Washington and Georgia, alleging legal systems in those states illegally or improperly jailed people too poor to pay criminal justice debts.
Nusrat Choudhury, a staff attorney with the ACLU Racial Justice Program, noted on Monday that the group has carried out a range of work in recent years aimed at protecting the rights of poor people who end up navigating state and local court systems.
“With this letter, in one stroke, the DOJ has powerfully amplified those efforts,” she said.
Other reform advocates echoed Choudhury’s approval for the Justice Department’s move.
“We think it’s great,” said Sara Zampierin, a staff attorney in Montgomery, Alabama with the Southern Poverty Law Center. “We see, far too often, that courts are used as revenue generators and are trapping poor defendants in a cycle of debt and incarceration.”
Roediger, the Saint Louis University School of Law professor, is also a member of a panel known as the Ferguson Commission Working Group on Municipal Courts. Asked why he believes it will take additional lawsuits to get some municipalities to change their ways with the imposition of court fines and fees, he said: “The reality is that it’s all revenue driven.”
“It’s a quick way to make an enormous amount of money off of poor people, and there are just so many towns that are living off of that,” he added. “Until there’s some economic incentive to stop doing it, I think a lot of them are going to keep doing it.”
Thomas Motley, president of the Missouri Municipal and Associate Circuit Judges Association, said in emailed remarks on Monday that the recommendations in the letter from the Justice Department mirrored those that have been previously made by workgroups sanctioned by the Show Me State’s Supreme Court. “Many of our member courts are already following procedures to ensure compliance with these recommendations,” he said.
But Roediger takes a less-than-rosy view of where things stand in Missouri. “We’re not making progress,” he said. “The lessons of Ferguson have largely been forgotten locally.” He then added: “Which is part of the reason that I was very pleased to see the DOJ is taking this seriously.”
It’s not only governments that stand to make money off of the fines and fees in question.
The letter sent Monday also points out that courts need to safeguard against unconstitutional practices by private contractors. Some jurisdictions employ private, for-profit companies to supervise people on probation, and authorize these companies to not only collect court fines, but also to impose a variety of charges, such as fees for late payments and drug tests.
Rep. Mark Takano, a California Democrat, introduced a bill in Congress in January that would block certain federal grant dollars from going to municipalities that engage with for-profit probation companies. The legislation, dubbed the “End of Debtor's Prison Act of 2016,” currently has 15 cosponsors, all of them Democrats, and has been referred to the House Judiciary Committee’s Subcommittee on Crime, Terrorism, Homeland Security and Investigations.
Among the other guidelines included in the Department of Justice letter: fine or fee payments should not be a precondition for getting a judicial hearing; courts should provide adequate notice and appropriate legal counsel when enforcing fines and fees; warrants and driver’s license suspensions should not be used to compel payments when individuals have not been afforded proper constitutional protections; and bail practices should not be employed that cause poor defendants to remain in jail, solely because they cannot afford to pay the price for their release.
The letter notes that the due process and equal protection principles of the Fourteenth Amendment of the Constitution prohibit “punishing a person for his poverty.”
Do the Department of Justice recommendations open the door for penalties that are too soft?
Roediger thinks the system in Missouri is too soft already—on the middle and upper class.
“If you have the money to afford a lawyer, every traffic case goes away,” he said. “The system is very, very soft on people with money, including people with repeat DUIs.”
“For my clients,” he added, “the system is incredibly punitive.”
T. Brad Bishop is a professor at the Cumberland School of Law at Samford University, in Birmingham, Alabama, and serves as a municipal judge in the nearby city of Hoover. He said Monday that, even before the events in Ferguson, controversies involving municipal courts locking people up for not paying fines had come up in Alabama.
“Probably a dozen cities have been sued in Alabama for those types of practices,” he said.
While Bishop acknowledged that troubles persist in some of the state’s local courts, he also made a case that they have shed some of the most controversial practices in recent years. For instance, he said, there has been a transition away from using private probation companies.
“One of the private probation companies has actually gone out of business,” he noted.
In Hoover, he explained, defendants in cases involving minor offenses can get an immediate bond without putting up any collateral, or a cash deposit. And no-fee installment plans have been put in place to enable people to pay fines over time without incurring additional costs.
“There are over 200 municipal courts, and most of them do what they’re supposed to do,” Bishop said.
Zampierin, with the Southern Poverty Law Center, agreed that there “has been some movement in some jurisdictions” on issues outlined in the Justice Department’s letter. But she also said: “I think these are still deeply ingrained problems in Alabama.”
One wrinkle when it comes to instituting best practices there is that, according to Bishop, most municipal court judges in the state are part time. “In some cities they may only hold court twice a month,” he said. “The variety of city sizes, court sizes, and when you have court, just creates a need for everybody to be on the same page, and that’s what we’re trying to do in Alabama.”
This sort of fragmentation leads Roediger to question whether problematic practices related to fines and fees can be solved with only action at the local level. “It’s really the fractured nature of everything that creates the problems,” he said. “I don’t know that a system that has a judge that comes out once a month can ever comply with the Constitution.”
“What we really need is a move at the state level toward unified, professional court systems,” he added. “We’re at a point in this country where we should only have full-time professional courts.”
Bill Lucia is a Reporter for Government Executive’s Route Fifty.