Justice Department Warns Local Courts About Unlawful Fines and Fees

By Matt Zapotosky, The Washington Post

14 March 16

he Justice Department is asking local courts across the country to be wary of how they slap poor defendants with fines and fees to fill their jurisdictions’ coffers, warning that such practices often run afoul of the U.S. Constitution and have serious real-world consequences.

In a letter that will be sent Monday morning to the chief judges and court administrators in all 50 states, Vanita Gupta, the head of the department’s Civil Rights Division, and Lisa Foster, director of the Office for Access to Justice, wrote that illegal enforcement of fines and fees had been receiving increased attention in recent years, and the Justice Department had a “strong interest” in making sure the rights of citizens were protected.

“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,” Gupta and Foster wrote. “Furthermore, in addition to being unlawful, 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 letter begins with the phrase “Dear Colleague,” and it does not threaten any specific enforcement action for those who ignore it. Officials said, however, it is an indication that the Justice Department is stepping up its efforts on the problem of local court fines and fees. Department officials will also announce Monday that they are making $2.5 million in grant funding available for jurisdictions with plans to “test strategies to restructure the assessment and enforcement of fines and fees.”

“We believe strongly the Constitution needs to be upheld in every court in every place in the United States, so we’re trying to help make sure that comes to pass,” Foster said in an interview.

The White House and the department convened a summit on the issue in December with advocates and court officials, and the Justice Department alleged in a recent lawsuit that officers Ferguson, Mo., were violating citizens’ civil rights in part because their policing tactics were meant to generate revenue.

The financial penalties — typically for minor misdemeanors, traffic infractions or violations of city code — disproportionately affect the poor, who cannot afford to pay immediately are then hit with arrest warrants or additional penalties.

The Washington Post’s Radley Balko published a lengthy investigation of municipalities’ practices in St. Louis County in 2014, finding that some towns there derived derive 40 percent or more of their annual revenue from the petty fines and fees collected by their municipal courts. Justice Department officials said they have seen similar problems in many other states.

“It varies from state to state about how severe the problem is, but the problem is everywhere,” Foster said.

The letter details seven principles that Gupta and Foster say court personnel should be aware of when imposing fines and fees. The officials wrote that courts should not jail people for nonpayment of fines and fees without first determining whether the non-payer was indigent and then establishing that the failure to pay was “willful.” They wrote that courts should consider alternatives to jail for indigent defendants; they must not use arrest warrants or license suspensions to coerce payments without giving defendants their rightful constitutional protections; and they must not use bail practices that leave poor people jailed “solely because they cannot afford to pay for their release.”

The officials wrote that courts should not require prepayment as a condition for a judicial hearing; they must provide meaningful notice and — in some cases — lawyers for those facing fines and fees; and they must “safeguard against unconstitutional practices by court staff and private contractors,” who are often left enforcing fines and fees because judges devote only a few hours to it on their crowded dockets.

“We urge you to review court rules and procedures within your jurisdiction to ensure that they comply with due process, equal protection, and sound public policy,” Gupta and Foster wrote.

The Justice Department could turn to more heavy-handed tactics, such as withholding grant money from jurisdictions with unconstitutional practices or filing lawsuits or criminal cases. The letter does not threaten any such action, but it notes that courts receiving federal funds might be violating the Civil Rights Act when their practices “unnecessarily impose disparate harm on the basis of race or national origin.”

Gupta said the letter is intended to “articulate a set of principles” that address a wide range of state and local court practices and to spark conversations that might lead to reform. She and Foster said some problems can become ingrained in court systems over time, as leaders do not stop to consider the broader constitutional issues.

“This is a serious problem that needs to be addressed, and our expectation is that’s what’s going to happen,” Foster said. “Hopefully, there will be no need to do anything else than be a good partner.”