When NPR in 2014 ran a series about how people around the country end up in debtors' prisons when they don't have the money to pay court fines and fees — even on minor infractions like traffic tickets — one cause of the problem, the stories noted, was confusion among state judges.
Many didn't know that, in 1983, the U.S. Supreme Court had ruled against the practice. Or judges had no set standard for determining who was too poor to pay court fines and fees that typically run hundreds or thousands of dollars. Some judges told impoverished people to pay with their veterans or welfare benefits, or told them to get money from a relative. One man in the NPR series was homeless and got caught in Georgia stealing a can of beer worth less than two dollars, but ended up being sentenced to a year in jail when he couldn't pay fines and costs that ran more than $400 a month.
Now the nation's top state judges have taken a big step to end the practice of sending impoverished people to debtors' prisons. The National Task Force on Fines, Fees and Bail Practices on Friday issued a "bench card" — a clear set of instructions — to be used by state judges across the country.
The two-page set of guidelines, which judges can keep at their fingertips on the bench, tell judges that they're only allowed to send people to jail for non-payment when they have the means to pay, but "willfully" refuse to pay. The instructions spell out how to determine who falls below the poverty line, and how to come up with alternative sanctions, like reducing a fine, extending the time to pay it, or requiring community service, instead.
"It's constitutionally right and it's also morally right," says Maureen O'Connor, chief justice of the Supreme Court of Ohio and co-chair of the national task force.
Three states already have issued similar bench card instruction to state judges: Ohio, Washington and Michigan. O'Connor says the experience in Ohio, the first state to act, in 2014, shows that instructing judges is just a first step.
There still needs to be training, and not just of judges. Another problem, O'Connor notes is that municipalities and states put pressure on courts to charge defendants more and more fines and fees, in order to subsidize the cost of running the courts. O'Connor calls this forcing courts and police to become "the ATM machines for the community."
In one Michigan county, Frederick Cunningham pleaded guilty to forging a prescription for pain medication and then was surprised when he was told to pay $1,000 in court costs. Those included $500 to reimburse the local program that paid for the impoverished man's court-appointed attorney and $500 to help pay the costs of running the county courthouse — including the salaries of court employees, heating, copy machines, courtroom security, and even county employees' fitness gym.
This practice was clear --and "an extreme example," says O'Connor-- in Ferguson, Mo., and surrounding municipalities. One driver of tension between police and the community, where unarmed Michael Brown was shot and killed, was the way the city's municipal court raised a large percentage of its budget from tacking on multiple and costly court fines and fees on nonviolent offenses like traffic violations and then arresting people when they didn't pay. A 2013 state report found that Ferguson, a city of 21,000 people, issued 32,975 arrest warrants in 2013 for nonviolent offenses, mostly driving violations. (Not all the warrants were for citizens of Ferguson. Many were issued to residents of surrounding communities.)
Those problems were underscored by advocates in Missouri, including ArchCity Defenders, and by the U.S. Department of Justice, which, in March 2015, issued a scathing report on the practice in Ferguson and then, in March 2016, sent a letter to state court leaders across the country telling them they had a responsibility to set clear court rules and procedures on the collection of fines and fees.
To try to change practices that put poor people in jail because they can't pay court fines and fees or bail, the Justice Department last year announced it was giving out assistance grants to state and local courts. Now the Conference of Chief Justices and the Conference of State Court Administrators — the two groups that brought together judges, court personnel, lawyers, academics and advocates to come up with the new task force guidelines — will sponsor similar grants to educate officials, from mayors to judges "to assure that no citizen is denied access to the justice system based on race, culture, or lack of economic resources."
The new bench card is one step, but "an enormous advance in the fight against debtors' prisons," says Nusrat Choudhury, senior staff attorney for the ACLU who led winning lawsuits in Biloxi, Miss., and Dekalb County, Ga. "This is the frontline in guarding against jailing poor people simply because of their poverty."