June 01, 2017 HUMAN RIGHTS

Jailing the Poor

by Thomas B. Harvey

Across the United States, police and courts have combined forces to create, enforce, and legitimize practices that have created a class of people who have been jailed because of their poverty. The process starts innocently enough. In cases where jail time either falls outside the range of punishment or would be an absurd punishment for a low-level offense, judges and prosecutors use fines. Yet, fines range from $300 to $500 for offenses such as failure to register a vehicle or no proof of insurance. In addition to these fines, the criminal legal process charges fees ranging from $100 to $500 to access the courts, obtain a lawyer, recall a warrant, or simply as part of the arrest and plea process. Many people who come into contact with the criminal legal system are in desperate poverty, often living on no more than $800 per month. For them, these fees and fines are simply impossible to pay.

Courts treat the failure to pay as a much more serious offense than the offenses underlying the fees and fines. If defendants miss payments or court dates, the court issues arrest warrants, assesses additional fines and fees, suspends driver’s licenses, and often issues additional charges. This has led to the jailing of hundreds of thousands of people across the United States in violation of the most basic principles of our legal system.

These ongoing violations of the most fundamental guarantees of the Constitution are the product of a disordered, fragmented, and inefficient approach to justice in America. The approach represents our legal system’s failure to comply with the guarantees of counsel, reasonable bond assessments, and other constitutional and legal rights of those accused. These institutional failures disproportionately harm black and minority communities.

Increasing awareness of the injustice of the policies and practices that criminalize black lives and poverty is inextricably linked to the distrust that underlies the outcry and protest following police killings in Ferguson, Missouri, and elsewhere. Fines and fees, cash bail, debtors’ prisons, or driver’s license suspensions did not drive protesters to the streets. However, protesters reported daily harassment, racial profiling in pedestrian and traffic stops, and routine, extended jailings because of poverty. Although the Department of Justice’s (DOJ) investigation into Ferguson’s municipal court and police is often presented as a stand-alone investigation, it is worth remembering that the DOJ never would have set foot in Ferguson’s court if protesters including Diamond Latchison, Kayla Reed, Tef Poe, Tory Russell, Brittany Ferrell, Alexis Templeton, and countless others had not been willing to lay their lives on the line to protest Ferguson police’s murder of Michael Brown on August 9, 2014. What poor people and black people living in St. Louis and across the nation have always known is slowly making its way into the consciousness of the middle-class white folks who have historically been able to ignore the lived experience of their neighbors.

Following the uprisings in Ferguson, Baltimore, Chicago, Milwaukee, and a long series of other cities plagued by similar police and court practices, those fighting against the criminalization of poverty have greatly benefited from the leadership of Loretta Lynch, Karol Mason, Lisa Foster, and Vanita Gupta at the DOJ. This group of fearless, incredible lawyers has ensured that the DOJ listened to the people and followed their lead. There is simply no reason to believe that Jeff Sessions’ Department of Justice will continue these practices.

Fortunately, there is reason for hope. Organizers, activists, and lawyers have joined forces to combat the most recent iteration of our country’s longstanding use of the criminal legal system to systematically deprive poor people and black people of their civil rights, exert social control over them, and make money while they do it. By the time the DOJ issued its report on Ferguson in March of 2015, local activists, organizers, and lawyers had united to file eight state class actions challenging the practice of illegally charging fees to recall warrants and to issue letters providing notice of warrants. Three federal class actions challenging modern-day debtors’ prisons, the illegal use of cash bail schedules, and the denial of the right to counsel were also filed. Three reports on constitutional violations were filed in the region’s courts, and there were numerous protests of the region’s systemic abuses in its police and courts.

Throughout 2015, lawyers and activists continued their fight against unlawful fees and fines practices used by courts and police. Activists, lawyers, policy advocates, and organizers gathered at Harlem’s Riverside Church to strategize, build, and fight these practices in July of 2015. ArchCity Defenders, Equal Justice Under Law, Southern Poverty Law Center, the ACLU, and Southern Center for Human Rights filed lawsuits challenging the creation of modern-day debtors’ prisons and the illegal use of cash bail schedules. In December, a group of legal activists, court administrators, judges, lawmakers, and people directly impacted by these unlawful practices gathered at the White House at a meeting sponsored by the DOJ.

The DOJ released a “Dear Colleague” letter on March 14, 2016, that built on lawsuits brought by grassroots groups across the country and put courts on notice that they must determine whether a person can pay before imprisoning them for unpaid fines or fees. In what amounted to a summary of the legal challenges brought by lawyers on behalf of poor people and communities of color across the country, the DOJ outlined the due process and equal protection arguments put forward in the lawsuits and required courts to consider alternatives to incarceration, give access to hearings to determine indigence, provide notice of proceedings, and provide counsel. Furthermore, the DOJ’s letter prohibits the use of warrants, license suspension, or jailing to encourage payment from indigent people. It also criticizes cash bail schedules, and reminds cities and courts of their responsibility for the actions of court staff and private contractors.

Whether challenging cash bail systems, debtors’ prisons, the due-process-free suspension of driver’s licenses, or the imposition of fees for being arrested, lawyers across the country have, with a vengeance, fought back against the widespread criminalization of poverty. In 2017, the experiences and efforts of the last few years provide important guidance on litigation strategies to fight the criminalization of poverty. Two recent lawsuits, including a challenge against modern-day debtors’ prisons in Jenkins v. Jennings and against driver’s license suspensions in Stinnie v. Holcomb, demonstrate how lawyers can protect vulnerable communities and attack the criminalization of poverty in court.

Debtors' Prisons: Jenkins v. Jennings

ArchCity Defenders, Equal Justice Under Law, and the Saint Louis University School of Law legal clinics filed a class-action lawsuit against the City of Jennings in February of 2015 alleging that thousands of people were being systematically deprived of their civil rights. The plaintiffs in the case were impoverished people who were jailed by the City of Jennings because they were unable to pay a debt owed to the city from traffic tickets and other minor offenses. In each case, the city imprisoned a human being solely because the person could not afford to make a monetary payment. Although the plaintiffs pleaded that they were unable to pay due to their poverty, each was kept in jail indefinitely for nonpayment and none was afforded a lawyer or asked about their ability to pay, which the U.S. Constitution requires. Instead, they were threatened, abused, and left to languish in confinement at the mercy of local officials until their frightened family members could produce enough cash to buy their freedom or until city jail officials decided, days or weeks later, to let them out for free.

The suit claimed the City of Jennings violated the 14th Amendment’s Due Process and Equal Protection Clauses. The plaintiffs alleged that the city violated their rights by imprisoning them when they could not afford to pay the debts allegedly owed from traffic and other minor offenses. They further alleged that Jennings violated their rights by imprisoning them, and by threatening to imprison them, without conducting any inquiry into their ability to pay and without conducting any inquiry into alternatives to imprisonment as required by the U.S. Constitution. At any moment, the City of Jennings would have released a wealthier person in the plaintiffs’ position upon a cash payment. Jennings’ policy and practice of keeping plaintiffs in its jail unless and until they were able to pay meant deprivation of liberty was arbitrary, determined by constantly shifting sums of money, and violated the 14th Amendment.

Samantha Jenkins was the lead plaintiff in the suit. Jennings imprisoned Jenkins on at least 19 occasions, including on warrants relating to her nonpayment and instances in which she turned herself in after missing payments. She would sometimes be held for up to a week in jail before being taken to a judicial officer. On many occasions, she told the city’s prosecutor and judge that she could not afford to make any payments. In response, the city told her that she would be incarcerated indefinitely unless she paid the city money. Instead of informing her of her right to counsel, the city told her to call family to obtain money for her release.

As Jenkins sat in jail, the amount of money the city required her to pay for her release would incrementally decrease. On several occasions, the city eventually let her out of jail without requiring any payment. On some occasions she was released after being taken to the hospital due to becoming ill amid the conditions in the city jail.

The weeks that Jenkins spent in the city jail in 2012 were among the worst in her life. The jail was extremely cold when the temperatures dropped outside, and inmates were allowed only one thin blanket. The city’s jail guards refused to give women a second blanket even though numerous women were begging for blankets and even though the jail had extra blankets. The cell in which Jenkins stayed for weeks was a single overcrowded room with several bunks, a toilet, two tables, and a shower. For the duration of her stay, there were consistently about 15 to 16 women forced to stay in the small room, with several spread out on floor mats covering nearly the entire cell floor.

The City of Jennings settled the case for $4.7 million without admitting liability. The certified class included nearly 2,000 people who had been jailed for their inability to pay for a combined 9,000 days during a five-year period.

Driver's License Suspensions: Stinnie v. Holcomb

Stinnie v. Holcomb is an ongoing lawsuit challenging the State of Virginia’s practice of suspending indigent citizens’ driver’s licenses for failure to pay court fees. The plaintiffs assert that the state’s suspension of their driver’s licenses violated their rights under the Due Process and Equal Protection Clauses of the 14th Amendment. The four plaintiffs include three young African Americans and one white man in his 60s, each with different individual circumstances but connected in the deprivation of their rights by the state. The defendant is the Commissioner of the Virginia Department of Motor Vehicles.

The practice of suspending driver’s licenses for failure to pay court fees has increased dramatically nationwide in the last decade even as criminal and traffic court fees rose over 200 percent between 1998 and 2014. Virginia also requires indigent defendants to reimburse the state for their court-appointed lawyer’s fees. As of the time the case was filed, over 940,000 people had licenses suspended for nonpayment of court debt, four of whom are named plaintiffs. The role of Virginia’s court debt policy in each plaintiff’s story, actively depriving each plaintiff of economic opportunity, is striking. Laws that penalize individuals’ debt by increasing that debt create a Kafkaesque situation for indigent defendants, who are forced again and again to plead for empathy to deaf ears. Each plaintiff in Stinnie has fought to resolve their situation, only to be prevented by their public servants. Central to the plaintiffs’ argument is that the failure of municipal courts, and by extension the Virginia DMV, to assess individual capacity to pay court fees violates bedrock constitutional protections. Even though Virginia may apply the same fees and fines to those who can afford to pay them and those who cannot, Virginia’s constitutional obligation is not equal non-protection, but equal protection. Where the state could deprive an indigent person of their ability to get to work, drive to see family, or drive to the supermarket, the state has a critical role to play in protecting the indigent from unequal and unfair deprivation.

Furthermore, the benefits of assessing individual capacity to pay fines and fees would far outweigh any minor procedural costs. Individual assessment benefits both Virginia residents and Virginia, helping both to avoid endless re-litigation over the immutable problem of an individual’s inability to pay fines and fees. Essentially, it is as absurd to use a one-size-fits-all approach to pecuniary punishment as it would be to ignore intent in a criminal case. Well-crafted legislation relies on proper incentives and disincentives. In this light, Virginia’s practice challenged in Stinnie is not only discriminatory, but also inefficient. The state does not win when it unfairly denies its citizens the right to travel, it stagnates. The state unnecessarily spends taxpayer money in pursuing legal action, and the state’s economy is damaged as a result of restricted labor force participation. Meanwhile, the fees remain unpaid, unstintingly accumulating interest as citizens struggle to work and live without a driver’s license.

Concluding Thoughts

There are many ways that state and local governments, police departments, and courts criminalize poverty. These incredibly regressive measures have a clear and deep impact on communities across the United States. Punishing citizens based on systematic disadvantages only deepens inequality. Such practices are only a marginally effective source of revenue, and are facially violative of the Equal Protection and Due Process Clauses of the 14th Amendment. Cash bail systems, modern-day debtors’ prisons, suspension of driver’s licenses, the imposition of fees for being arrested, particularly without an assessment of ability to pay fees or fines, are extraordinarily unequal in approach and distressing in their existence and widespread use.

It is easy in the abstract to overlook the acute psychological damage caused by the regressive policies. These policies are much more than just an ineffective source of revenue, however. Such policies damage democracy, unfairly depriving already disadvantaged people of their ability to participate fully in society, even as such policies achieve little. Beginning with the challenge to a modern-day debtors’ prison system in Jenkins, with the challenge to Virginia’s driver’s license revocation system in Stinnie, and with the many lawsuits filed in state and federal courts across the United States, lawyers should and must continue to battle the criminalization of poverty.

Thomas B. Harvey is the cofounder and executive director of ArchCity Defenders, a nonprofit civil rights law firm that uses direct services, impact litigation, and advocacy through policy and public relations as its primary tools to promote racial justice and protect civil and human rights.