The U.S. Justice Department recently sent a letter to state and local courts warning them about constitutional concerns prompted by overly burdensome fees placed on poor and indigent defendants.

The correspondence took the form of a “dear colleague letter” and has been used to “push the boundaries of civil rights law,” at least according to The New York Times.

Such “Dear Colleague” letters have been used as official correspondences sent by Congress to lower federal agencies. The last letter was sent in 2010 which advised judges that courts ought to provide translators to persons unable to communicate in English.

The new letter warns that courts should not enforce overly onerous (and possibly illegal) fees on defendants in cases involving minor misdemeanors, “quasi-criminal ordinance violations and civil infractions.”

Profound Harm

In minor criminal and quasi-criminal cases, incarceration is generally not imposed on the defendant – money fines are the more typical practice. But for poor defendants, even relatively small monetary fines can present a tremendously onerous burden. Some defendants are forced to take days off of work – money that they can scarcely afford to lose.

The iniquities of the bail system have even been highlighted by in popular media on John Oliver’s show.

Basic Principles in the Letter

The basic outlined rules in the letter are as follows:

  • Courts should not incarcerate a person until they have first determined whether or not the person is indigent or if the non-payment is willful.
  • Courts must consider alternatives for indigent defendants who are unable to pay, such as community service.
  • Courts must not condition a judicial hearing upon payment of fees or fines.
  • Courts must not use bail or bond practices to keep defendants jailed because of inability to pay.

Related Resources:

  • No Bail Money Keeps Poor People Behind Bars (WNYC)
  • Should You Go to Trial Paperless? Are You Kidding? (FindLaw’s Strategist)
  • Getting Out of Jail after You Have Been Arrested (FindLaw’s Learn About the Law)
  • What’s Difference Between Bond and Bail? (FindLaw’s Blotter)

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