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Poverty Is Not A Crime

December 2, 2015

There is no principle underlying our criminal justice system more essential than that we must treat equally the wealthy and the poor.  As former Attorney General Robert F. Kennedy said in 1962, “If justice is priced in the market place, individual liberty will be curtailed and respect for law diminished.”

To the vast majority of Americans, this concept is a given; it’s innate to being American.  This country banned debtors’ prisons under federal law back in 1833.  In 1970, the U.S. Supreme Court ruled that a maximum prison term could not be extended because a defendant failed to pay court costs or fines.  A year later, those same justices ruled that a defendant may not be jailed solely because he or she is too poor to pay a fine.  Again, in 1983, in a case called Bearden v. Georgia, the Supreme Court reaffirmed that the Constitution does not permit “punishing a person for his poverty.” 

Despite these longstanding ideals and principles, in some places around our country, fines are still being imposed and people are still being incarcerated for nonpayment without a judge ever making the basic required inquiry — “Can this person afford to pay?”  In these places, court fines, fees and other financial obligations can lead to unnecessary incarceration, trap people in a cycle of poverty, and undermine the faith in the justice system that is so critical to public safety. 

Take for example the city of Ferguson, Missouri.  The Justice Department Civil Rights Division’s investigation of the Ferguson Police Department found that Ferguson’s courts imposed excessive fines and routinely ordered the arrest of low-income residents when they failed to make payments they could not afford.  For example, a 67-year-old woman living on a fixed income was taken to jail for missed payments related to a trash-removal citation.  The court imposed fines totaling $1,000, which she struggled to pay in $100 monthly installments. 

In a city of 21,000, Ferguson’s courts issued arrest warrants for over 9,000 people in 2013 alone, almost entirely on cases stemming from low-level offenses.  When people were arrested, they routinely sat in jail because bond was set with no regard to their financial situation.  The Civil Rights Division’s investigation found that these harms were borne disproportionately by the city’s African-American community.

Unfortunately, these troubling dynamics aren’t unique to Ferguson.  In Georgia – where I served as U.S. Attorney – the state had a system in which people were being fined for low-level misdemeanor offenses such as traffic violations or public nuisance citations.  Due to a law passed in 2000, private probation companies supervised these people and set monthly or weekly payment amounts that were much higher than necessary to collect funds owed during their probationary term.  In some cases, probationers were expected to pay all court fines and surcharges, as well as provider supervision fees, in less than half of the term.  Many of these private probation providers failed to consider whether probationers had the ability to meet their financial obligations.  And some of these private companies would unlawfully extend the probation term, improperly allocate probationer payments to themselves instead of the court, or obtain arrest warrants for failure to pay.  One can see how this system was not only unfair, but could easily trap low-income individuals into a cycle of poverty through the series of cascading events they set in motion. 

Thanks to the leadership of judges and elected officials in Georgia, the state produced a comprehensive report of recommendations and then enacted reforms into law to address the state’s problematic misdemeanor private probation system.  There is still a lot of work to be done, but their progress is inspiring. 

The issues raised by the practices in Missouri, Georgia and other areas of our country are why the Justice Department today convened a meeting of advocates, researchers and criminal justice practitioners to discuss avenues for more equitable alternatives to these problematic systems for fines, fees and fixed bail.  State officials, judges, and many others shared their ideas for creating a system driven not by profit, but by a commitment to fair and constitutional practices.  The conversation will continue tomorrow at the White House, where the Attorney General, other administration officials and leaders in the field will deliberate over ways to disentangle incarceration from poverty. 

The Justice Department will publish a report based on the proceedings from the meeting, recommending steps that practitioners, policymakers and legislators can take to ensure that our criminal justice system is working to protect public safety and ensures equal justice under the law.  Meanwhile, the Department of Justice’s Civil Rights Division and Office of Access to Justice have been working to identify and reform inequities in state and local bail systems where they find them.

These efforts will help ensure that we live up to the promise of ensuring our justice system is fair to all segments of society.  Those are the principles we have been given by our forefathers, and it is one that we continually strive to deliver to the American people.

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Updated March 3, 2017