You can’t get water from a rock: Courts over-burden the poor.

Back in March the Department of Justice (“DoJ”) issued a “dear colleague letter” to state and local courts concerning the use of fees and fines as assessed on poor defendants (you can read the full text of the letter here).  The ABA Journal boiled the document down to a singular issue: “Typically, courts do not sentence defendants to incarceration in these cases; monetary fines are the norm…[y]et the harm caused by unlawful practices in these jurisdictions can be profound. Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no danger to the community; lose their jobs; and become trapped in cycles of poverty that can be nearly impossible to escape.”[1] In the letter, the DoJ outlined 7 principle recommendations, but the key points follow:

  • Courts must not incarcerate an indigent defendant for nonpayment of fines or fees without first establishing the failure was willful;
  • Courts must consider alternatives to incarceration for indigent defendants unable to pay fines and fees;
  • Courts must no employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.

While these seem like obvious points of bright line law, the DoJ’s letter “does not threaten any specific enforcement action for those who ignore it.”[2] It is hard to imagine that courts that are already willfully disregarding the Civil Rights of the indigent will be coerced by a well written letter, especially given that there is evidence that some municipalities derive up to 40% of their annual revenue from petty fines and fees collected by their municipal courts.[3]

This last part is the real issue. As long as there is an incentive to create revenue by punishment, there will be unnecessary punishment.  Perhaps the easiest and broadest fix, is to permanently remove the greedy outstretched hand of the municipality from the scales of justice.


—  Derek A. Jordan, Esq., Barnes Law

Derek A. Jordan is an associate attorney with Barnes Law, licensed to practice law in Tennessee.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.