The Justice Department on Monday sent a letter to state and local chief judges and court administrators nationwide to address illegal and unconstitutional practices, such as incarcerating people who are too poor to pay fines and fees.
A year ago, the Justice Department found that courts in Ferguson, Missouri, were primarily using judicial authority “to compel the payment of fines and fees that advance the City’s financial interests,” leading to unconstitutional practices that “impose unnecessary harm, overwhelmingly on African-American individuals, and run counter to public safety.”
Such practices extend to jurisdictions far beyond Ferguson. As towns and counties have attempted to shift the costs of their court systems to residents arrested for traffic tickets and other minor offenses, they have created modern-day debtors’ prisons by jailing people who are too poor to pay their fines.
Courts in Alabama are among those that have contracted out to for-profit, private companies like Georgia-based Judicial Correction Services to collect fines from people who are on probation for misdemeanor offenses. These companies make their money by adding fees onto the bills of the defendants, which can turn a $179 speeding ticket into a more than $3000 bill, much of it owed to the probation company.
Notwithstanding clear state and federal law, local authorities throughout Alabama regularly revoke probation and jail people who are too poor to pay these fines and fees. EJI has challenged this practice in Birmingham, where the municipal court sentenced dozens of indigent people to be confined in the city jail for failure to pay fines.
The law is absolutely clear that the government may not incarcerate a person solely because of inability to pay a fine or fee, the department wrote in Monday’s Dear Colleague letter. To comply with the Constitution, state and local courts must determine whether or not a person is actually able to pay prior to jailing him or her for nonpayment, and must provide alternatives like community service or payment plans for those who are too poor to pay.
The department made clear that courts cannot require people to pay fines in order to get a hearing in court. “For example,” the letter explains, “a motorist who is arrested for driving with a suspended license may be told that the penalty for the citation is $300 and that a court date will be scheduled only upon the completion of a $300 payment (sometimes referred to as a prehearing “bond” or “bail” payment).” This practice, the department affirmed, unconstitutionally denies poor people access to the courts.
Courts also must not use arrest warrants or license suspensions as a means of coercing the payment of court debt. “Rather than arrest and incarceration,” the department advised, “courts should consider less harmful and less costly means of collecting justifiable debts.” As the letter points out, suspending a person’s driver’s license actually makes it more difficult for her to pay outstanding court debts by jeopardizing employment and making it more difficult to travel to court.
The Justice Department underscored that it is unconstitutional to incarcerate someone solely because they cannot afford to pay bail. Most of the people in jails across the country are pretrial detainees charged with nonviolent offenses. They are jailed not based on the likelihood they will re-offend or fail to appear in court, but because they are too poor to pay a money bond. Because minority populations are over-represented among the indigent in America, researchers report that defendants of color are disproportionately detained pretrial: African Americans and Latinos comprise 30 percent of the U.S. population, but represent 50 percent of all pretrial detainees.
To encourage reform of these practices, the Justice Department announced that it will award $2.5 million in grants to state and local courts to develop strategies for reducing unnecessary confinement for people too poor to pay fines and fees.