EXCERPTS FROM THE ABA E-NEWSLETTER AND NCSC NEWS RELEASES
The U.S. Department of Justice sent a “dear colleague letter” on March 14, 2016, warning state and local courts about constitutional concerns regarding fees and fines imposed on poor defendants. Concurrent with the dissemination of the letter, the first meeting of a National Task Force to study the issue and eventually make recommendations to the states regarding reforms took place in Arlington, Virginia.
The letter (PDF) from the department’s Civil Rights Division and the Office for Access to Justice urges courts to review procedures regarding fines to make sure they comply with “due process, equal protection and sound public policy.” The letter describes a $2.5 million grant program to help courts and court reform agencies develop strategies that reduce unnecessary confinement of those who can’t pay fines and fees. Dear Colleague letters have been used “to help push the boundaries of civil rights law,” according to the New York Times. Yet they are unusual. The last such letter, issued in 2010, advised judges they need to provide translators for people who can’t speak English.
The new letter refers to “illegal enforcement of fines and fees” in “certain jurisdictions,” including Ferguson, Missouri, in cases involving misdemeanors, quasi-criminal ordinance violations and civil infractions.
“Typically, courts do not sentence defendants to incarceration in these cases; monetary fines are the norm,” the letter says. “Yet the harm caused by unlawful practices in these jurisdictions can be profound. 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 outlined “basic constitutional principles” regarding fee and fine enforcement. They include:
- Courts shouldn’t incarcerate a person for nonpayment without first determining whether the person is indigent and whether the failure to pay is willful.
- Courts must consider alternatives to incarceration for indigent defendants unable to pay. Alternatives could include requiring community service or classes, reducing the debt or extending the time for payment.
- Courts must not condition access to a judicial hearing on the prepayment of fees and fines.
- Courts shouldn’t use bail or bond practices that keep indigent defendants incarcerated because they can’t afford to pay for their release.
To assess abuses and spark needed reforms, the Conference of Chief Justices (CCJ) and Conference of State Court Administrators (COSCA), two top-level state court leadership organizations, formed a National Task Force on Fines, Fees and Bail Practices to study how court ordered financial obligations impact the economically disadvantaged. The Task Force is comprised of national judicial and legal leaders, state, county and municipal policymakers, academics, and public interest advocates. Ohio Chief Justice Maureen O’Connor and Kentucky State Court Administrator Laurie Dudgeon co-chair the group. The National Center for State Courts (NCSC), a nonprofit justice system consultancy dedicated to improve courts nationally and around the world, will staff it. Funding for the inquiry is provided by the State Justice Institute (SJI) and the Bureau of Justice Assistance (BJA) at the U.S. Justice Department.