DOJ to state judges: time to end 'pay or stay' imprisonment

The Justice Department is concerned that some local court systems are levying excessive fees and fines on poor defendants in order to raise revenue, creating a system of modern-day debtors' prisons.

Carolyn Kaster/AP/File
Attorney General Loretta Lynch, joined by Principal Deputy Assistant Attorney General Vanita Gupta speaks during a news conference at the Justice Department in Washington, Feb. 10. The Justice Department issued a warning to state courts on Monday that the common practice of jailing poor defendants who are unable to pay fines and court fees may be unconstitutional.

The US Department of Justice is asking state court systems to find alternatives to fees and fines imposed on poor defendants that it says erode community trust and violate the Constitution.

State court systems operate independently from the Justice Department, and the memo sent Monday from the Department's Civil Rights Division is meant to alert local judges to the fact that levying ecessive fines on poor defendants – and jailing them if, as is often the case, they can't pay – can violate federal law and open the door to constitutional challenges.

The letter comes amid growing concerns that some local courts, in an effort raise to revenue, routinely issue arrest warrants for residents who have failed to pay fines for minor offenses – a "pay or stay" system that some argue has effectively created modern-day debtors' prisons. The practice received national attention last year when it was linked to widespread community protests in Ferguson, Mo., after the fatal shooting Michael Brown by a police officer there.

But the practice has been in place for years, and isn't limited to Ferguson.

Tom Barrett was arrested in Augusta, Ga., for shoplifting a can of beer worth less than $2. After spending two months in jail, he was released but required to wear an electronic monitoring device and pay the $12-a-day rental fee himself, an expense the homeless man couldn't afford, NPR reported in 2014. His court debt totaled about $400 a month over one year.

Besides Georgia and Missouri, the American Civil Liberties Union has found evidence of the practice in local courts in Louisiana, Michigan, Washington, and Ohio.

"In addition to being unlawful," wrote Vanita Gupta, head of the DOJ's Civil Rights Division, in the letter, "to the extent that these practices are geared not toward addressing public safety, but rather toward raising revenue, they can cast doubt on the impartiality of the tribunal and erode trust between local governments and their constituents."

The memo comes after a December meeting with court administrators, judges, prosecutors, and others about how to improve how court fees and fines are assessed. Monday's letter suggests several changes, including that courts must give defendants adequate notice of fees and fines, should not impose bonds that a defendant has no ability to pay, and that a defendant should not be locked up for unpaid fees without a judge first establishing that the defendant failed to pay even though they had the financial ability to do so.

In addition to the letter, the DOJ has also announced $2.5 million in grants to state and local governments to explore changes in how court fines and fees are assessed and enforced.

Material from The Associated Press was used in this report.

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