On Monday, officials at the Department of Justice (DOJ) will send a letter to chief justices and court administrators across the country warning them against operating modern-day debtors’ prisons and deploying other tactics that harm the poor.
In the letter, Vanita Gupta, principal deputy assistant attorney general in the DOJ’s Civil Rights division, and Lisa Foster, director of the office for access to justice, warn against seven practices that turn courthouses into a source of revenue, rather than justice.
The letter reiterates that courts shouldn’t jail people who don’t pay fines and fees levied by the court without first determining whether they are able to pay. It says that courts should also consider options for those who can’t afford to pay the fines and fees that don’t include jail time. The letter mentions money bail schemes that result in poor people being jailed “solely because they cannot afford to pay for their release,” and condemns the use of arrest warrants or drivers license suspensions as a way to coerce people into paying. Those tactics make it more likely that the poor will be arrested, fined, and jailed simply because they couldn’t afford what they were charged with in the first place — while also making it likely they will miss work and fall further behind on payments.
In some places, the letter notes, defendants can’t even start a judicial hearing until their debts are cleared, an “unconstitutional practice” that is “often framed as a routine administrative matter.” The letter also warns against the practice of using private companies to enforce debt collection or probation, allowing them to profit from discretionary fines tacked on top of what defendants owe courts.
“Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no danger to the community; lose their jobs; and become trapped in cycles of poverty that can be nearly impossible to escape,” the letter says. “Furthermore, in addition to being unlawful, to the extent that these practices are geared not toward addressing public safety, but rather toward raising revenue, they can cast doubt on the impartiality of the tribunal and erode trust between local governments and their constituents.”
Beyond sending the letter, the DOJ announced that it will offer $2.5 million in grants to courts that seek to change their policies and “test strategies to restructure the assessment and enforcement of fines and fees.”
The DOJ doesn’t send such letters frequently; the last was sent to judges in 2010 telling them that they are obligated to provide translators for people who don’t speak English. While they don’t constitute legal action in their own right, nor does Monday’s letter threaten any such steps, that could come further down the road. After the 2010 letter, the department opened investigations into two states, ultimately compelling reforms in Colorado and citing North Carolina for violating the Civil Rights Act.
The feds could also withhold grant money from municipalities or states with unconstitutional practices, as well as file lawsuits or criminal charges. The letter notes that courts receiving federal funding might be in violation of the Civil Rights Act if their practices “unnecessarily impose disparate harm on the basis of race or national origin.”
While debtors prisons were abolished in the 1800s and Supreme Court cases found that jailing people because they can’t pay debts without assessing their ability to pay violates the constitution, these practices have seen a resurgence across the country. Courts, particularly those in municipalities that are strapped for resources, levy fines and fees against defendants, and when they can’t pay often put them in jail until they can come up with the sum. Other municipalities turn the debtors over to private probation companies that can tack on fines and fees to what the defendants already owe at their discretion and have been accused of using intimidation tactics like threatening jail time to get clients to pay up. Yet those who have the resources to pay court fees on the spot can avoid jail time and probation.
Legal groups have been filing lawsuits against these practices, alleging that they are unconstitutional and a violation of defendants’ rights, and some have resulted in abolishing them. Still, the practices are so widespread that it is difficult to track them all down. In an interview with the Washington Post, Foster said, “It varies from state to state about how severe the problem is, but the problem is everywhere.”
The DOJ may have become particularly interested in the issue after it launched its thorough investigation into Ferguson, MO after the uprisings there. St. Louis County, home to Ferguson, has the country’s second-highest rate of traffic cases per person and in many places the number of outstanding warrants exceeds the number of residents. These tickets and warrants serve to generate an enormous amount of revenue for the county’s cities, totaling $61 million in 2013.
These practices were included in the DOJ’s lengthy report on its investigation and its recommendations for reform. That led to Gov. Jay Nixon signing reforms into law that cap court revenue and impose other new requirements aimed at ending court practices that prey on the poor.
The department has also had its eye on problems with the money bail system. “When bail is set unreasonably high, people are behind bars only because they are poor,” Attorney General Loretta Lynch said at the White House in December. “Not because they’re a danger or a flight risk — only because they are poor. They don’t have money to get out of jail, and they certainly don’t have money to flee anywhere. Other people who do have the means can avoid the system setting inequality in place from the beginning.”