What started as a ticket for making an illegal left turn ended up with a Georgia teenager spending five days in a county jail. That's because 19-year-old Kevin Thompson couldn't quickly pay $838 in fines and fees related to the traffic offense.
Thompson described his time in jail "as the worst in his life," said Nusrat Choudhury, the American Civil Liberties Union attorney who represented the teen in filing a federal lawsuit.
Although DeKalb County and Judicial Correctional Services (JCS) settled the case for $70,000 a year ago, what happened to Thompson still occurs, and it's not confined to one part of the country.
"These practices are rampant across the country, most recently in Louisiana," Lauren-Brooke Eisen, a senior counsel with the Justice Program at the Brennan Center for Justice at NYU School of Law, said. "Fees and fines emerged as a powerful funding mechanism when state legislatures balked at raising revenue."
An increasing number of states and localities look to close budget gaps through fees and fines accessed through the criminal justice system. The scenario has created a cottage industry of for-profit probation companies like JCS, which oversee payment plans and collect fines and fees on behalf of municipalities.
In 2010, the ACLU found "this troubling trend in five states, and since then an additional three to four states," Choudhury said. "In 2015 alone, the ACLU and its affiliates files lawsuits in Georgia, Mississippi, Washington and Michigan," she said. "This is a problem that truly spans the country."
"Since the Great Recession we've seen a dramatic rise. What we've seen is hard-pressed state and local governments increasingly relying on fine and fee collection to fill budget gaps," Choudhury said. "There's a conflict of interest when government is collecting money it depends on but is also charged with enforcing fair and impersonal criminal justice. So, courts should not be revenue generators and neither should the police."
The practice has also caught the attention of the U.S. Department of Justice (DOJ), which this month sent out reminders that jailing indigent people for failing to pay fines violates the U.S. Constitution, a notion the U.S. Supreme Court has upheld.
On March 14, The DOJ said it was mailing a letter to state court administrators suggesting "alternative practices that can address legitimate public safety needs while protecting the rights of participants in the justice system." It also reiterated the findings of the government's probe of the police department and court system in Ferguson, Missouri, which was deemed to be a money-making venture, rather than an independent branch of government.
"The letter shows true leadership challenging the phenomena known as a modern-day debtor's prison. In one strike the Department of Justice is telling courts across the country to guard against the illegal jailing of poor people without constitutional safeguards," the ACLU's Choudhury said. "What it amounts to is a call for state courts to adopt the kind of standards that the ACLU has been advocating for years in one fell swoop before they are sued."
In some parts of the country, defendants are not given a judicial hearing until their debts are paid, an "unconstitutional practice" that is frequently "framed as a routine administrative matter." It also cautioned against the use of having private companies enforce debt collection or probation and letting those firms profit from fines they add to what the defendants already owe courts.
NYU's Eisen called the DOJ's steps "significant and important," saying "it's very rare for the department to issue a letter like this to judges."
"Fifty-two years after Gideon versus Wainwright was decided by the Supreme Court, we are still seeing ways in which one of our most cherished ideals has been overlaid with costs that are really borne by those who can least afford to pay," U.S. Attorney General Loretta Lynch told a two-day panel in December. "When bail is set unreasonably high, people are behind bars only because they are poor, not because they are a danger or a flight risk."
"What was occurring in Ferguson, and sadly other towns, was shameful and unacceptable municipal court and law enforcement practices that together worked to turn the justice system into a for-profit enterprise," Lynch told the December session.
She recounted the story of an individual who had been issued two traffic tickets in 2007 and fined $152. "By the time our report was issued in 2015, she had paid $550 to the city in fines and fees, had been arrested twice for unpaid tickets and spent six days in jail." And after paying $550, that person still owed $541, so the original fine had ballooned to over $1,000, Lynch said.
In addition, the DOJ said it would offer $2.5 million in grants to help courts revamp their fine policies.
The financial help should help provide incentives to "local jurisdictions that don't have a lot of funding, that's why we have fines and fees," Eisen said. "There's potential to spur innovation when you're looking at these practices. Even small changes, like letting them use a credit card rather than a certified check."
The issue has fostered an alliance between civil rights groups and conservative activist Grover Norquist, with the president of Americans for Tax Reform speaking at the same December panel as Lynch.
"When I was a kid," Norquist said, "my parents always said if you have trouble, go to the policeman, he's your friend. I've never heard it said about IRS agents. Yet we've turned at the local level a lot of the police force into tax collectors."
In Ferguson, the city's finance director offered advice to the police chief in a March 2010 letter, warning that "unless ticket writing ramps up significantly before the end of the year," the city faced a budget shortfall, said Norquist. He added that a state lawmaker had told him police officers would get little notices along with their paychecks, warning: "If we don't get more tickets, there won't be pay increases."
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