Poverty Is Not a Crime

• Author: Hilarie Bass
• Pages: 8-8

8 || ABA JOURNAL JULY 2018

PHOTOGRAPH COURTESY OF THE OFFICE OF THE PRESIDENT

President’s Message || By Hilarie Bass

Poverty Is Not a Crime

ABA works to curb disproportionate e ect of excessive fi nes and fees on the poor

“It is fundamenta l that jus-

tice should be the same, i n sub-

stance and avai lability, without

regard to economic st atus.”

Those are the words of former

U.S. Supreme Court Justice

and American Ba r Association

President Lewis Powell, Jr. in

1976.

But the sad reality is t hat in

America today, economic statu s

can determine t he type of justice

you receive. Not just due to the

“justice gap” caused by under-

funded civil lega l aid o ces

that must turn away half of

those seeking help. And not just

because public defender o ces

are overwhelmed. But becaus e a

court system pun ishes people of

lesser means by levy ing fees and

fi nes on them that they have no

hope of paying.

Every day, courts impose a

range of fi nancia l obligations on individuals charged with

criminal o enses or civil infract ions. These can range

from fi nes for low-level o enses l ike tra c tickets all the

way up to fi nes for felonies. In almost e very jurisdiction,

there are numerous fees charge d for using the justice

system.

Many of these fees exist t o raise revenue and fund the

justice system. A s the rate of incarceration grows, fi nan-

cially pressured s tate and local governments have turned

to justice system pay ments for additional revenue.

The last Depar tment of Justice survey on the issue

in 2004 found that two-thirds of all pri son inmates

had crimi nal justice debts, up from 25 percent i n 1991.

Many experts b elieve the fi g ure is closer to 85 percent

today. Most inmates cannot come close to pay ing.

These policies perpetuate poverty, aggravate racial dis-

parities becau se they disproportionately a ect com muni-

ties of color, and erode trust in the legal s ystem. Unpaid

fi nes can re sult in the suspension of driver’s and occupa-

tional licenses, and prevent people fr om fi nd ing employ-

ment and a way to pay.

Despite the 1983 Supreme Court ru ling in Bearden

v. Georgia which found th at no one could be jailed for

their inability to pay a fi ne, incarcerations for failure to

pay are still common. National d ata on individuals jailed

for inability to pay fees does not ex ist. But a 2014 survey

conducted by Nat ional Public

Radio, the Brennan Cent er, and

the National Center for State

Courts found that in Bent on

County, Wash., 25 percent of the

people in jail for misdemean-

ors were there for nonpayment

of fi nes and cour t fees. In Rhode

Island, 18 percent of all defen-

dants jailed bet ween 2005 and

2007 were incarcerated b ecause

of court debt. Anec dotal evi-

dence of failure-to-pay ar rest is

abundant.

This is not equal justice , and

the ABA is working to fi x it.

First, we set up a Working Group

on Building Public Trust in the

American Justice S ystem chaired

by Rob Weiner. The group will

propose a resolution for the

House of Delegates in August

opposing the inc arceration of

individuals simply becau se they

are unable to pay judicially impos ed fi nes and fees. The

resolution will o er 10 gu idelines to jurisdictions to help

ensure that no one is jailed beca use they cannot a ord to

pay a fi ne or fee. They wil l call for mandatory “ability-to-

pay” hearings, and o er alternatives to incarcerat ion and

substanti al monetary pena lties.

Second, the ABA — tha nks to a grant from the Laura

and John Arnold Foundation — has expanded a cou rt

monitoring program that beg an last fall in Nashville w ith

a group of volunteers. The program, which e xpanded

to New Mexico, Miami and Tallaha ssee, Florida, will

observe court s to see if they are imposing fi nes and fees

without considering a defendant’s ability t o pay. We

expect report s with results from New Mexico in early

2019 and from Florida in June 2019.

Instilling and maintaining trust in our justice sys-

tem is imperative to t he peaceful fu nctioning of

our democracy. Poverty, in and of itself, should never

be criminal ized. The ABA is committed to protec ting

against a two -tiered justice system: one for rich and one

for poor.

As Justice Powell eloquently stated, “Equ al justice

under law is not merely a caption on the facade of the

Supreme Court building; it is perhaps the most i nspir-

ing ideal of our society. It is one of the ends for which our

entire legal system ex ists.” Q

Follow President Bass on Twitter @ABAPresident or email abapresident@americanbar.org.