Department of Justice Asks Courts to Stop Mugging Their Citizens

Early this week, the U.S. Department of Justice sent a letter to courts nationwide, warning them to end civil enforcement measures that effectively criminalize poverty. According to DoJ, municipal and state courts around the country are maintaining practices that violate the civil rights of their citizens. Too many courts are denying basic access to justice by using fees and fines to force the most vulnerable people into the criminal justice system.

The Dear Colleague Letter, signed by DoJ’s access to justice coordinator and its top civil rights prosecutor, outlined seven practices that need to be halted:

1. Courts must not incarcerate a person for nonpayment of fines or fees without first conducting an indigency determination and establishing that the failure to pay was willful.
2. Courts must consider alternatives to incarceration for indigent defendants unable to pay fines and fees.
3. Courts must not condition access to a judicial hearing on prepayment of fines or fees.
4. Courts must provide meaningful notice and, in appropriate cases, counsel, when enforcing fines and fees.
5. Courts must not use arrest warrants or license suspensions as a means of coercing the payment of court debt when individuals have not been afforded constitutionally adequate procedural protections.
6. Courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.
7. Courts must safeguard against unconstitutional practices by court staff and private contractors.

The letter was part of a resource package sent to chief justices and court administrators nationwide, designed to help state and local courts reform long-loved but illegal practices for assessing and collecting civil fines. A best-practices guide on fee collection accompanied the letter, along with a new technical assistance grant program to help courts reform their policies.

This warning to courts comes on the heels of last year’s report on Ferguson, Missouri’s use of citizens as ATMs, with extremely disparate impact on racial minorities. The D0J found that Ferguson’s law enforcement activities were primarily focused on generating revenue for the city. A case in point (pdf):

We spoke, for example, with an African-American woman who has a still-pending case stemming from 2007, when, on a single occasion, she parked her car illegally. She received two citations and a $151 fine, plus fees. The woman, who experienced financial difficulties and periods of homelessness over several years, was charged with seven Failure to Appear offenses for missing court dates or fine payments on her parking tickets between 2007 and 2010. For each Failure to Appear, the court issued an arrest warrant and imposed new fines and fees. From 2007 to 2014, the woman was arrested twice, spent six days in jail, and paid $550 to the court for the events stemming from this single instance of illegal parking. Court records show that she twice attempted to make partial payments of $25 and $50, but the court returned those payments, refusing to accept anything less than payment in full. One of those payments was later accepted, but only after the court’s letter rejecting payment by money order was returned as undeliverable. This woman is now making regular payments on the fine. As of December 2014, over seven years later, despite initially owing a $151 fine and having already paid $550, she still owed $541.

It turns out that some of Ferguson’s illegal practices are widespread, a way for courts to fund their operations on the backs of the poor and powerless. This DoJ effort aims to put a stop to it.

While the letter’s tone is more encouraging than judgmental, it still contains a meaty undercurrent of warning and threat. The Department of Justice routinely investigates state agencies and sues them in federal court when required, as it did recently with Ferguson. (The city quickly settled the lawsuit on DoJ’s terms.)

Attorney General Loretta Lynch had this to say: “The consequences of the criminalization of poverty are not only harmful — they are far-reaching… They not only affect an individual’s ability to support their family, but also contribute to an erosion of our faith in government. One of my top priorities as Attorney General is to help repair community trust where it has frayed, and a key part of that effort includes ensuring that our legal system serves every American faithfully and fairly, regardless of their economic status.”

I’d love to think we at Burlington Avenue were contributing to a solution. Our work to help average people represent themselves in court may one day have an impact on democratizing the courts, but what’s really needed is a culture of respect for citizenship among those who operate our justice system.

We get criticized occasionally for helping people game the system — play the courts, if you will — and some of that is fair. That is part of what we do. But when courts are outright mugging their citizens, the notion that we should play by the rules is foolhardy. What expectation for fairness and justice can people reasonably have for a justice system that needs a civil rights reminder like this DoJ letter? The system is gaming us.

I’m happy to see the Department of Justice take on this problem, but I also recognize we live in strange times. The DoJ asking courts to observe the Constitution is like Congress asking the Fed to maintain a stable monetary system. Oh, right. Strange times. With news of this DoJ letter, I find myself in agreement with Awesomely Luvvie that the country’s operating system is in drastic need of tech support, perhaps even a reboot.

Share your thoughts on the Department of Justice’s effort to stop these illegal court practices in the comments below.