WASHINGTON -- Justice Department officials warned U.S. judges and court administrators this week that practices like incarcerating poor people without determining whether they could afford outstanding fines are illegal and unconstitutional.
But civil rights advocates with clients who've had their lives torn apart after being accused of petty crimes, receiving traffic tickets or charged with municipal code violations say the feds have a much more effective method of fixing the widespread problem: locking up judges.
In a nine-page letter sent to all state chief justices and state court administrators on Monday, the DOJ's Vanita Gupta, who heads the Civil Rights Division, and Lisa Foster, the director of the Office of Access to Justice, urged local officials to "review court rules and procedures within your jurisdiction to ensure that they comply with due process, equal protection, and sound public policy."
Judges who incarcerate poor people because they missed a payment are breaking the law, the letter said. What many courts consider a “routine administrative matter” of forcing defendants to pre-pay a “bond” or “bail” before they’re allowed to schedule a court date is actually unconstitutional, Gupta and Foster wrote. Locking people in cages for long periods of time solely because they can’t afford to buy their freedom is a violation of the country’s supreme law, the U.S. Constitution.
Civil rights advocates praised the Justice Department for sending the letter. However, they say there’s a much more powerful tool available if the feds really want to deter judicial crime: Federal prosecutors can hold judges accountable for their unlawful conduct by charging them with a federal crime.
Section 242 of Title 18 of the U.S. code ― the so-called “color of law” statute ― is the same federal civil rights legislation that Justice Department prosecutors use against police officers and prison guards who use excessive force and make false arrests. The law applies to prosecutors and judges, too. But the feds don’t use it against them often.
Hub Harrington, a former circuit judge in Shelby County, Alabama, who in 2012 called Harpersville Municipal Court a “debtors prison” and a “judicially sanctioned extortion racket,” suggested prosecuting judges who break the law at a December meeting at the White House. He said he approached the Justice Department and the Alabama Attorney General about the issues in Harpersville and was frustrated that former Municipal Court Judge Larry Ward wasn’t charged over his conduct.
“We’ve been talking about the victims,” Harrington said at the time. “What about the perpetrators? We got the laws in place. We already have the law you can’t put indigent people in jail without a hearing. We don’t need more laws. We need to enforce the ones we’ve got.”
Alec Karakatsanis from Equal Justice Under Law, an organization that has been suing cities engaged in widespread unconstitutional practices, said the DOJ letter was a good start and could help “eradicate any notion that any judge can be ignorant of basic principles of constitutional law.” But he hoped bad judges would be indicted.
“For a long time, our courts have become places where impoverished people and people of colors’ rights are violated with virtual impunity every day as a matter of daily practice,” Karakatsanis said. “You’d like to think that the people who are tasked with applying the law are held to the same standards as everyone else, and when people are blatantly violating the law, there should be consequences for them.”
It would be “a hard argument for any judge to make that they thought it was OK for them to be throwing people in jail for not being able to make payments without making any type of inquiry into their ability to pay,” he added. But the problem is so widespread and commonplace that prosecution could be less likely.
“It’s not just a ‘few bad apples,’ we have a legal system that has lost it’s way, become desensitized towards caging people,” Karakatsanis said. “One of the really difficult and sad things about our legal system is that the more common something is, the more difficult it is to prosecute because there’s this sense that ‘Well, everyone is doing it, so it would break the system.’”
“It's not just a 'few bad apples,' we have a legal system that has lost it's way, become desensitized towards caging people.”
Thomas Harvey of ArchCity Defenders, an organization that represents low-income defendants and has sued municipal courts in St. Louis County for routinely infringing on the constitutional rights of defendants, said it's sad that the DOJ's letter was even necessary.
"Think how pathetic it is that the Department of Justice has to write a letter to judges across the country to remind them of their constitutional obligations," Harvey said. "Think of what an embarrassment this should be to the legal profession and yet, nothing seems to shock, surprise, or embarrass people in power."
Brandon Buskey of the American Civil Liberties Union wrote in The New York Times last year that using the law against judges shouldn't seem like a radical idea.
"Judges and prosecutors violate civil rights every day, in plain sight, and with seeming impunity," he wrote. "To make them answer for these crimes, the federal government must continue to extend its reach beyond the streets and into the courtroom."
While the vast majority of color of law cases the Justice Department has brought focus on egregious violent actions of police officers or prison guards, there have been a small number against judges and prosecutors. Last month, Robert C. Nalley, a former judge in Charles County, Maryland, pleaded guilty to one count of deprivation of rights under color of law because he had ordered a deputy sheriff to set off a stun-cuff worn by a criminal defendant who was calmly reading a prepared statement in his courtroom.
The DOJ letter was the product of a summit on excessive fines and fees held at the White House in December. The letter was sent the same week that Ferguson reached a deal with the Justice Department to resolve a lawsuit accusing the city of turning its municipal court into a cash cow. It makes clear that the DOJ is interested in “working collaboratively” with judicial officers and supporting reform efforts at the state and local levels.
Because so many low-level courts across the United States operate in obscurity, it’s tough to say exactly how widespread the illegal practices are. “It varies from state to state about how severe the problem is, but the problem is everywhere,” the DOJ’s Foster told The Washington Post. But it’s safe to say that it’s common practice for judges to violate the rights of poor defendants around the U.S. on a regular basis.
While it’s disturbing to think that those trusted with judicial positions don’t know the basic constitutional protections for defendants in their courtrooms, that appears to be the case for many low-level judges.
A Buzzfeed investigation into municipal judges who incarcerate poor people in Texas showed many of them believed ― incorrectly ― that they were under no obligation to investigate whether defendants could afford the fines imposed upon them. One judge said that the homeless weren’t necessarily indigent. Another said that not forcing poor people to pay fines they couldn’t afford would be unfair to rich people.
Because even judges who engage in misconduct are generally immune from civil lawsuits, federal civil rights charges are one of the few avenues of accountability. But ACLU attorney Nusrat Choudhury, who was involved in the settlement this week of a lawsuit with Biloxi, Mississippi ― a city that ran a “jailhouse shakedown” to collect outstanding fines and fees ― said she’s hopeful the Justice Department’s letter will have an impact.
“I think there’s an increasing realization that there’s a threat of litigation, and what the DOJ has done is put every state chief judge and state court administrator on notice of what those constitutional requirements are,” Choudhury said. “It shows that there needs to be a re-education of judges and court administrators.”
ArchCity Defenders’ Harvey said retraining efforts and initiatives like “bench card” sheets that the Supreme Court of Ohio distributed to judges in 2014 to help guide them away from violating constitutional rights show that judges simply aren’t subject to the same rules as the indigent defendants they lock up.
“If a judge violates the law, we give them training and a cheat sheet so that they can remember the most fundamental elements of the law. If my client takes a piss outside because he’s homeless and the bar or restaurant in which he tried to use the restroom threatened him with trespassing charges, nobody gives him a cheatsheet on public indecency laws,” Harvey said. “At the very least, a police officer comes and threatens him with arrest and at the very worst, they jail him for not having any place to go. It’s a perfect illustration of the way the powerful protect the powerful and harm the vulnerable.”