Department of Justice, Public Interest

The Feds Are Taking On Debtors' Prisons

Some say bail is "income-based incarceration." The Department of Justice wants to change that.

By  
on

Prison sadLast week, the New York Times ran a piece with a tragic headline that really says it all about a terrible public policy: “Unable to Pay $100 Bail, Homeless Man Dies in New Hampshire Jail.” A hundred dollars might not seem like much. If, god forbid, you or I were ever arrested, we probably wouldn’t have any trouble coming up with it. But not everyone can come up with a hundred dollars in a pinch. What’s just a minor dent in the pocketbook for some of us is a guarantee of jail time for others. And that disparity is a real problem — but it’s a problem the federal government is trying to fix.

Recently, the Department of Justice has been taking on bail systems that result in jail time for poor people who haven’t been convicted of any crime, aren’t dangerous, and aren’t flight risks. Last year, Justice filed a “Statement of Interest” in a class action challenging a city’s allegedly unconstitutional bail scheme in Alabama federal court. Justice asserted the United States’s “clear interest in ensuring that state and local criminal justice systems are fair, nondiscriminatory, and rest on a strong constitutional foundation.” And it argued that “any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses in order to gain pre-trial release, without any regard for indigence” — like the bail scheme at issue there — “not only violates the Fourteenth Amendment’s Equal Protection Clause but also constitutes bad public policy.”

Justice convincingly laid out a backdrop of case law stemming from the Supreme Court’s 1956 declaration in Griffin v. Illinois that “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” It walked through the passage of the federal Bail Reform Act, which prohibits the imposition of “a financial condition that results in the pretrial detention of the person.”  And it laid out more recent cases holding that, in Justice’s words, “indigency cannot be a barrier to freedom.” Finally, Justice explained why setting bail without regard for a defendant’s ability to pay it is bad public policy; frankly, I hope this analysis is obvious enough that you don’t need it spelled out here.

Anyway, after Justice weighed in, the result of the case was unsurprising: the city changed its bail practices so they were no longer illegal, and the case settled out.

More recently, Justice has been trying to effect change more systemically.  So, to use Justice’s own words, “in December 2015, the Department convened a diverse group of stakeholders… to discuss the assessment and enforcement of fines and fees in state and local courts.” And after chewing on the results of this convention, Justice issued a letter to state court administrators around the country to lay out some ground rules and best practices.

The letter addresses a bunch of concerns around courts’ assessment and enforcement of fines and fees. Most relevant for today’s purposes is this admonition: “Courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.” As we already know, such practices would be both illegal and bad public policy. Instead, “courts should consider transitioning from a system based on secured monetary bail alone to one grounded in objective risk assessment by pretrial experts.” As examples, Justice cites to the laws of the District of Columbia, Colorado, Kentucky, New Jersey, and the federal government.

It’s nice to see Justice wielding its considerable influence to help some of our most vulnerable people. And hopefully the government’s high-profile effort to fix unconstitutional bail schemes will inspire public interest lawyers around the country to take on any recalcitrant systems that still serve, effectively, as debtors’ prisons.

Sponsored

Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.

Sponsored

Topics

, , , , ,