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Justice Department warns local courts about illegal enforcement of fees and fines

The U.S. Justice Department is sending a “dear colleague letter” warning state and local courts about constitutional concerns regarding fees and fines imposed on poor defendants.

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.” A press release links to the letter and describes a $2.5 million grant program to help agencies develop strategies that reduce unnecessary confinement of those who can’t pay fines and fees. The Washington Post and the New York Times have coverage.

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 said. “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:

1) Courts shouldn’t incarcerate a person for nonpayment without first determining whether the person is indigent and whether the failure to pay is willful.

2) 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.

3) Courts must not condition access to a judicial hearing on the prepayment of fees and fines.

4) Courts shouldn’t use bail or bond practices that keep indigent defendants incarcerated because they can’t afford to pay for their release.