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.