I’ve watched a parade of reporters over the years come to terms with the reality that the justice system isn’t always fair.
Oh, it’s meant to be. It strives to be. There are many good judges and attorneys who desperately try to uphold the principle of “liberty and justice for all.”
But the truth is that perfect fairness simply can’t exist in a legal system where money makes all the difference. Those with deep pockets can afford expensive legal teams. In many cases they can simply wait out litigants who, even if they deserve to win, have limited resources. Public defenders nationwide are swamped with cases, overworked, which leads to long pre-trial detentions for the accused who are too impoverished to afford their own lawyers; an excessive number of cases are plea-bargained. And don’t even get me started on for-profit prisons.
Now the Justice Department is making things even harder for the poor who find themselves in court.
In late December, U.S. Attorney General Jeff Sessions, prompted by Executive Order 13777 from President Donald Trump, rescinded a batch of guidance documents he considered “unnecessary, inconsistent with existing law, or otherwise improper.”
The most troubling casualty was a federal stance against debtors’ prisons. For some crazy reason, President Barack Obama put guidance in place in 2016 that courts shouldn’t jail people just because they’re too poor to pay fines or fees.
That’s the ideal. But it’s not how it always works.
In 2013, the American Civil Liberties Union of Ohio investigated debtors’ prison practices statewide and “met countless people who were tethered to the criminal justice system simply because they were too poor to pay off court fines and fees,” said the organization’s senior policy director, Mike Brickner, and assistant policy director Jocelyn Rosnick in a Feb. 13 commentary on criminal law reform.
“We issued a report that told the story of countless more people who were given unjustly high court fines and fees that they could not afford to pay and rigid payment plans that kept them trapped in the grips of poverty,” they wrote. “One young couple owed thousands of dollars in fines and fees from low-level convictions, such as disorderly conduct and drinking underage. Each month, the couple was forced to make the impossible choice of whose fines they would continue to pay so one of them could stay at home with their infant while the other would spend another 10 days in jail for fines that they simply could not afford to pay.”
Or take the example of Ferguson, Mo. Attorney Chiraac Bains was involved in the 2015 case involving the killing of Michael Brown by a police officer — in a Dec. 28 column for the New York Times, he wrote that he “saw firsthand the damage that the city had wrought on its black community. Ferguson used its criminal justice system as a for-profit enterprise, extracting millions from its poorest citizens. Internal emails revealed the head of finance directing policing strategy to maximize revenue rather than ensure public safety. Officers told us they were pressured to issue as many tickets as possible.”
On Jan. 29, Ohio Supreme Court Chief Justice Maureen O’Connor sent a letter to judges across the state, citing the constitutional standards set by Bearden v. Georgia in 1983. The case determined that if the state decides a fine or restitution is the appropriate penalty for a crime, it can’t then impose prison time just because the defendant lacked the resources to pay.
That finding is unaltered by the Justice Department’s rescission, O’Connor reminded Ohio judges.
“We have a special responsibility to act in a manner that bolsters public trust and confidence in the fair administration of justice for everyone,” she wrote. “Practices that penalize the poor simply because of their economic state; that impose unreasonable fines, fees, or bail… upon on our citizens to raise money or cave to local funding pressure; or that create barriers to access to justice are simply wrong.”
I have watched Oberlin Municipal Court judge Thomas Januzzi for many years. I think it is fair to say he stands with O’Connor on this issue. And as someone who has read police annual reports for years, I see no evidence that police are running day-and-night dragnets to make cash. In fact, the numbers say the opposite for our local officers, who are rightfully liberal with warnings.
We need to support them, because Ohio and the rest of the United States can’t afford to backslide. Sessions’ policy move is wrong and it signals a dangerous turn for the pursuit of “liberty and justice for all.”